Exhibit 1.1
Form of Underwriting Agreement
3,000,000 SHARES
ENTERCOM COMMUNICATIONS CORP.
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
February , 2002
DEUTSCHE BANC ALEX. BROWN INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
As Representatives of the Several Underwriters,
c/o Deutsche Banc Alex. Brown Inc.,
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
1. Introductory. Entercom Communications Corp., a Pennsylvania
corporation (the "COMPANY"), proposes to issue and sell 3,000,000 shares (the
"FIRM SECURITIES") of its Class A Common Stock, par value $.01 per share (the
"SECURITIES"). The Company also proposes to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 450,000 additional
shares of the Company's Securities (such additional shares being hereinafter
referred to as the "OPTIONAL SECURITIES"). The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES." The Company
hereby agrees with the several Underwriters named in Schedule A hereto (the
"UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-82542) relating to the
Offered Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933, as amended (the "ACT") and
is not proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment.
If such registration statement (an "INITIAL REGISTRATION STATEMENT") has been
declared effective, either (A) an additional registration statement (an
"ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the
Act and, if so filed, has become effective upon filing pursuant to such rule and
all the Offered Securities have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such rule and upon such filing all the Offered
Securities will have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If the
Company does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the
Act or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the Company has
advised the Representatives, or any of them, that it does not propose to amend
such registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c), or
(B) if the Company has advised the Representatives, or any of them, that it
proposes to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has not
been filed prior to the execution and delivery of this Agreement but the Company
has advised the Representatives, or any of them, that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement means
the date and time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the initial
registration statement or the additional registration statement (if any), means
the date of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by reference
therein, including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration statement
as of the Effective Time of the additional registration statement pursuant to
the General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration statement
as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT." The
additional registration statement, as amended at its Effective Time, including
the contents of the initial registration statement incorporated by reference
therein and including all
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information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter
referred to as the "ADDITIONAL REGISTRATION Statement." The Initial Registration
Statement and the Additional Registration Statement are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT." The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all material
incorporated by reference in such prospectus, or any applicable prospectus
supplement(s), is hereinafter referred to as the "PROSPECTUS." No document has
been or will be prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission ("RULES AND REGULATIONS") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed or will
conform, in all material respects to the requirements of the Act and the Rules
and Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (iii) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the Prospectus
is included, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which such statements were made) not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations, neither
of such documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light of the
circumstances under which such statements were made) not misleading, and no
Additional Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to the
Company by any Underwriter
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through the Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such in Section
7(c) hereof.
(c) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with power and authority (corporate and other) to own, lease or
operate its properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign corporation and is
in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the condition (financial or other), business, properties, or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(d) Each subsidiary of the Company has been duly incorporated
or organized, as the case may be, and is validly existing and in good standing
under the laws of the jurisdiction of its organization, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation, limited liability company or
business trust, as applicable, and is in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and is owned of
record and beneficially by the Company or by a subsidiary of the Company; and
the capital stock or other equity interest of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except as disclosed in the Prospectus.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding shares
of capital stock of the Company are, and when the Offered Securities have been
delivered and paid for in accordance with this Agreement on the Closing Date(s),
such Offered Securities will have been validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the shareholders of the Company have no preemptive rights with
respect to the Offered Securities and, except as described in the Prospectus,
there are no outstanding options, warrants or other rights calling for the
issuance of, or any commitment, plan or arrangement to issue, any shares of
capital stock of the Company or any subsidiary thereof or any security
convertible into or exchangeable or exercisable for any capital stock of the
Company or any subsidiary thereof.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
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(g) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(h) The Securities have been approved for listing on The New
York Stock Exchange subject to official notice of issuance.
(i) Except as disclosed in the Prospectus, no consent,
approval, authorization, or order of, or filing with, any governmental agency or
body (including, without limitation, the Federal Communications Commission (the
"FCC")) or any court is required to be obtained or made by the Company for the
consummation by the Company of the transactions contemplated by this Agreement
in connection with the offer and sale of the Offered Securities by the Company,
except such as have been obtained and made under the Act and such as may be
required under state securities laws and except that a copy of this Agreement is
to be filed with the FCC within 30 days of its execution.
(j) The execution, delivery and performance of this Agreement,
and the consummation of the transactions by the Company herein contemplated will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is subject,
assuming that in connection with the consummation of such transactions, (i)
Joseph M. Field continues to hold in his own name and exercise voting control of
the securities of the Company representing majority voting control of the
Company; (ii) each purchaser of the Offered Securities is qualified under the
Communications Laws to hold such interest; and (iii) not more than 25% of the
capital stock of the Company in the aggregate is owned by foreign governments,
alien individuals or entities or representatives thereof, except where the
breach or violation would not have a Material Adverse Effect, or the charter or
by-laws of the Company or any such subsidiary, and the Company has full power
and authority (corporate and other) to authorize, issue and sell the Offered
Securities pursuant to this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects that
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would materially affect the value thereof or materially interfere with the use
made or to be made thereof by them; and except as disclosed in the Prospectus,
the Company and its subsidiaries hold any leased real or personal property under
valid and enforceable leases or subleases with no exceptions that, individually
or in the aggregate, would have a Material Adverse Effect.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits and hold all necessary licenses (including,
without limitation, licenses issued by the FCC) issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated
by them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, license, authority or permit
that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) Except as described in the Prospectus, no labor dispute
with the employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent that might have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any Intellectual Property Rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(p) The Company and its subsidiaries have filed all necessary
federal, state, local and foreign income and franchise tax returns, except where
the failure to file such returns would not have a Material Adverse Effect and
the Company and its subsidiaries have paid all taxes shown as due thereon; and
other than tax deficiencies that the Company or its subsidiaries are contesting
in good faith and for which adequate reserves have been provided, there is no
tax deficiency that has been asserted against the Company or its subsidiaries
that would, individually or in the aggregate, have a Material Adverse Effect.
(q) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or is subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim would individually or
in the aggregate
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reasonably be expected to have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might reasonably be expected to lead to
such a claim.
(r) Except as disclosed in the Prospectus, there are no
pending actions, suits, proceedings, inquiries or investigations before or
brought by any court or governmental agency or body (including, without
limitation, the FCC) against or, to the knowledge of the Company, affecting the
Company, any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the context
of the offer and sale of the Offered Securities by the Company; and no such
actions, suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(s) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the schedules included in each
Registration Statement present fairly the information required to be stated
therein.
(t) Since the date of the latest audited financial statements
included in the Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties, or results of operations
of the Company and its subsidiaries taken as a whole, and, except as disclosed
in or contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
(u) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes to be
accurate and reliable.
(v) Each of the Company and its subsidiaries (i) make and keep
accurate books and records and (ii) maintain internal accounting controls that
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(w) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the
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Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended.
(x) To the knowledge of the Company, each of Deloitte & Touche
LLP and Arthur Andersen LLP, which firms have examined the consolidated
financial statements as set forth in their reports included in the Prospectus,
is an independent public accounting firm within the meaning of the Act and the
rules and regulations thereunder.
(y) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering, Analysis and
Retrieval (EDGAR) system.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $_____ per share, the respective number
of shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
Deutsche Banc Alex. Brown Inc. ("DBAB") designated by the Company at the office
of Weil, Gotshal & Manges LLP at 10:00A.M., New York time, on March __, 2002, or
at such other time not later than seven full business days thereafter as DBAB
and the Company determine, such time being herein referred to as the "FIRST
CLOSING DATE." For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the offering;
provided, however, that delivery of the certificates evidencing the Firm
Securities shall be made through The Depository Trust Company ("DTC") at its
offices in New York, New York. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as DBAB requests and will be made available for checking and
packaging for delivery at DTC at least 24 hours prior to the First Closing Date.
In addition, upon written notice from DBAB given to the Company from
time to time, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. Such Optional Securities shall be purchased from the Company for the
account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by DBAB to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional
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Securities shall be sold or delivered unless the Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time,
not more than 30 days subsequent to the date of the Prospectus, and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by DBAB to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by DBAB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by wire transfer to an
account at a bank acceptable to DBAB designated by the Company; provided,
however, that delivery of the certificates evidencing the Optional Securities
shall be made through DTC at its offices in New York, New York. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
DBAB requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging for delivery at DTC at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by DBAB and Credit
Suisse First Boston Corporation ("CSFBC"), subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the execution
and delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise DBAB and CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to
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the time the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by DBAB and
CSFBC.
(b) The Company will advise DBAB and CSFBC promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the Prospectus and
will not effect such amendment or supplementation without the consent of DBAB
and CSFBC; and the Company will also advise the Representatives promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any amendment
or supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify DBAB and CSFBC of such event and
will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the consent of DBAB and
CSFBC to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration Statement
(or, if later, the Effective Date of the Additional Registration Statement)
which will satisfy the provisions of Section 11(a) of the Act. For the purpose
of the preceding sentence, "AVAILABILITY DATE" means the 45th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to DBAB and CSFBC copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
DBAB and CSFBC request. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective
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Time of the Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as DBAB and
CSFBC designate and will continue such qualifications in effect so long as
required for the distribution.
(g) For a period of 90 days after the date of the offering of
the Firm Securities, the Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written consent of
DBAB and CSFBC, except issuances of Securities pursuant to the conversion of
Convertible Preferred Securities Term Income Deferred Equity Securities
(TIDES)SM issued by Entercom Communications Capital Trust or exchanges of shares
of the Company's Class B Common Stock, par value $.01 per share, or Class C
Common Stock, par value $.01 per share ("CLASS C COMMON STOCK"), in accordance
with the terms thereof, or convertible or exchangeable securities or the
exercise of warrants or options, in each case outstanding on the date hereof,
grants of employee stock options or restricted stock pursuant to the terms of a
plan in effect on the date hereof, or issuances of, or any filing of a
registration statement on Form S-8 (or any successor form) relating to,
Securities pursuant to the exercise of such options or under any employee stock
purchase plan in effect on the date hereof.
(h) The Company has obtained and will deliver to DBAB and
CSFBC no later than the close of business on the date hereof, a lock-up
agreement (substantially in the form attached as Exhibit A hereto) from its
directors, executive officers and shareholders listed on Schedule B hereto.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the obligations of
the Company under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as DBAB and CSFBC designate and the printing of memoranda relating
thereto, for any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities, and for expenses incurred
in distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company
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herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) (i) The Representatives shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of Arthur Andersen LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(A) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(B) with respect to the audited financial statements
of the Company for the year ended December 31, 2001 only, on
the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to the attention of Arthur Andersen LLP that caused them
to believe that:
(1) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets, as compared with amounts shown on
the latest balance sheet included in the Prospectus;
or
(2) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net broadcast revenue, net income (loss)
or in the total or per share amounts of consolidated
income (loss) before extraordinary items;
12
except in all cases set forth in clauses (1) and (2) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(C) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
(ii) The Representatives shall have received a
letter, dated the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Deloitte & Touche LLP confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the effect
that in their opinion the financial statements and schedules examined by them
and included or incorporated by reference in the Registration Statements comply
as to form in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations.
For purposes of this subsection (a), (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York time, on
the date of this Agreement or such
13
later date as shall have been consented to by the Representatives. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Representatives. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
the Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its subsidiaries
which, in the judgment of the Representatives, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
or preferred stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material adverse change in U.S. or
international financial, political or economic conditions shall have occurred as
to make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the proposed issue, sale or distribution of the Offered
Securities; (iv) any suspension or limitation of trading in securities generally
on The New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal, New York or Pennsylvania authorities; (vi) any major
disruption of settlements of securities or clearance services in the United
States that would materially impair settlement and clearance with respect to the
Offered Securities; or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Latham & Watkins, counsel for the Company, substantially
in the form attached hereto as Exhibit B.
14
(e) The Representatives shall have received an opinion, dated
such Closing Date, of John C. Donlevie, Esq., General Counsel to the Company, or
such other counsel reasonably acceptable to the Underwriters, substantially in
the form attached hereto as Exhibit C.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Leventhal, Senter & Lerman PLLC, in their capacity as FCC
counsel for the Company, substantially in the form attached hereto as Exhibit D.
(g) The Representatives shall have received from Weil, Gotshal
& Manges LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the Registration Statements, the Prospectus and
other related matters as the Representatives may reasonably require.
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct as though made on such Closing Date; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule 111(a) or
(b) under the Act, prior to the time the Prospectus was printed and distributed
to any Underwriter; and, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received letters, dated
such Closing Date, of Deloitte & Touche LLP and Arthur Andersen LLP which meet
the requirements of subsection (a) of this Section, except that the specified
date referred to in such subsection will be a date not more than three business
days prior to such Closing Date for the purposes of this subsection.
(j) The lock up agreements described in Section 5(h) shall
have been executed by or on behalf of each of the persons listed on Schedule B.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on behalf of the
Underwriters
15
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances in which they were made) not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company has previously furnished such quantity of copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the
16
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the third paragraph under the caption
"Underwriting" and the information contained in paragraphs 11 through 16 under
the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify an indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the
17
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First Closing Date or any Optional Closing Date and the aggregate number of
shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, the Representatives may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by such Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such
18
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "UNDERWRITER" includes any person substituted for an Underwriter under this
Section 8. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements, of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(i) and the
respective obligations of the Company and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (v), (vii) or (viii) of
Section 6(c), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Deutsche Banc Alex. Brown Inc., One South Street,
Baltimore, Maryland 21202, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 401 City Avenue, Suite 409, Bala
Cynwyd, Pennsylvania 19004, Attention: John C. Donlevie, Esq., provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and
19
the officers and directors and controlling persons referred to in Section 7, and
no other person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
DBAB will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
ENTERCOM COMMUNICATIONS CORP.
By:
---------------------------
Name:
Title:
S-1
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
DEUTSCHE BANC ALEX. BROWN INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
GOLDMAN, SACHS & CO.
CHASE SECURITIES INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: DEUTSCHE BANC ALEX. BROWN INC.
By:
---------------------------------
Name:
Title:
S-2
SCHEDULE A
NUMBER OF
FIRM
SECURITIES TO
BE
UNDERWRITER PURCHASED
- ----------- ---------
Deutsche Banc Alex. Brown Inc................................
Credit Suisse First Boston Corporation.......................
Banc of America Securities LLC...............................
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Total........................................................
A-1
SCHEDULE B
1. Joseph M. Field
2. Marie H. Field
3. David J. Field
4. Nancy E. Field
5. S. Gordon Elkins, Trustee U/D/T dated October 9, 1992 F/B/O Marie H.
Field
6. S. Gordon Elkins and David J. Field, Trustees U/D/T of Joseph M. Field
dated 9/30/92 F/B/O David J. Field
7. Marie H. Field & Nancy E. Field, Trustees U/D/T dated 12/23/76 F/B/O
David J. Field
8. David J. Field and S. Gordon Elkins, Trustees U/D/T of Joseph M. Field
dated April 24, 1998, F/B/O the Issue of David J. Field
9. S. Gordon Elkins and Nancy E. Field, Trustees U/D/T of Joseph M. Field
dated 9/30/92 F/B/O Nancy E. Field
10. Marie H. Field & David J. Field, Trustees U/D/T dated 12/23/76 F/B/O
Nancy E. Field
11. David J. Field and S. Gordon Elkins, Trustees U/D/T of Joseph M. Field
dated April 24, 1998, F/B/O the Issue of Nancy E. Field
12. John C. Donlevie
13. Stephen F. Fisher
14. S. Gordon Elkins
15. Lee Hague
16. Michael R. Hannon
17. David J. Berkman
18. Emma C. Ginley
19. Thomas H. Ginley, Jr. & Emma C. Ginley JTWROS
20. Herbert Kean
21. Joseph and Marie Field Foundation
22. Joseph M. Field, Trustee U/D/T of Daniel M. Kraus dated July 21, 1998
F/B/O Sidonie Kazenel
A-2
EXHIBIT A
Lock Up Agreement
B-1
EXHIBIT B
Opinion of Latham & Watkins
B-2
EXHIBIT C
Opinion of John Donlevie
B-3
EXHIBIT D
Opinion of Leventhal, Senter & Lerman PLLC
B-4