5,300,000 Shares
SINCLAIR BROADCAST GROUP, INC.
Class A Common Stock
UNDERWRITING AGREEMENT
September 17, 1997
SMITH BARNEY INC.
BT ALEX. BROWN INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
CHASE SECURITIES INC.
FURMAN SELZ LLC
As Representatives of the Several Underwriters
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Sinclair Broadcast Group, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell an aggregate of 4,000,000 shares of its Class A
Common Stock, par value $0.01 per share (the "Class A Common Stock"), to the
several Underwriters named in Schedule II hereto (the "Underwriters") for whom
Smith Barney Inc., BT Alex. Brown Incorporated, Credit Suisse First Boston
Corporation, Salomon Brothers Inc, Chase Securities Inc. and Furman Selz LLC are
acting as representatives (the "Representatives") and the persons named in
Schedule I hereto (the "Selling Stockholders") propose to sell to the several
Underwriters an aggregate of 1,300,000 shares of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock", and collectively with the Class A
Common Stock, the "Common Stock") of the Company, which shares of Class B Common
Stock will be converted to shares of Class A Common Stock upon such sale. The
Company and the Selling Stockholders are hereinafter sometimes referred to as
the "Sellers." The 4,000,000 shares of Class A Common Stock to be issued and
sold to the Underwriters by the Company and the 1,300,000 shares of Class B
Common Stock to be sold to the Underwriters by the Selling Stockholders are
hereinafter referred to as the "Firm Shares." The Company and certain of the
Selling Stockholders also propose to sell to the Underwriters, upon the terms
and conditions set forth in Section 2 hereof, up to an additional 345,000 shares
of Class A Common Stock and 450,000 shares of Class B Common Stock, which shares
of Class B Common Stock will be converted to shares of Class A Common Stock upon
such sale, respectively (all of such shares, the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares."
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The Company and the Selling Stockholders wish to confirm as follows its
respective agreements with you and the other several Underwriters on whose
behalf you are acting, in connection with the several purchases of the Shares by
the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Commission in accordance with the provisions of the Securities
Act of 1933, as amended (the "Act"), a registration statement on Form S-3 under
the Act (the "registration statement"), including a prospectus, and a prospectus
supplement subject to completion, relating to the Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, or, if the registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to the execution
of this Agreement and shall include in any such case the information, if any,
deemed to be a part of such registration statement pursuant to Rule 430A(b)
under the Act. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to the registration statement will be filed and
must be declared effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment and including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b), under
the Act. If the Company files a registration statement to register a portion of
the Shares pursuant to Rule 462(b) under the Act (the "Rule 462(b) Registration
Statement"), then after such filing the term "Registration Statement" in this
Agreement shall be deemed to include the Rule 462(b) Registration Statement at
the time it became effective. The term "Prospectus" as used in this Agreement
means the prospectus, including any prospectus supplement relating to the
offering of the Shares, in the forms included in the Registration Statement, or,
if the prospectus included in the Registration Statement omits information in
reliance on Rule 430A under the Act and such information is included in
prospectuses filed with the Commission pursuant to Rule 424(b) under the Act,
the term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement as supplemented by the addition of the
Rule 430A information contained in the prospectuses filed with the Commission
pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in this
Agreement means the prospectus (including any preliminary prospectus supplement
relating to the offering of the Shares) subject to completion in the form
included in the Registration Statement at the time of the filing of any
preliminary prospectus supplement as part of the Registration Statement with the
Commission, and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus. Any reference in this Agreement to the
registration statement, the Registration Statement, any Prepricing Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of the registration statement, the Registration Statement, such
Prepricing Prospectus or the Prospectus, as the case may be, and any reference
to any amendment or Prepricing Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities
Exchange
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Act of 1934, as amended (the "Exchange Act") which, upon filing, are
incorporated by reference therein, as required by paragraph (b) of Item 12 of
Form S-3. As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the registration statement,
the Registration Statement, any Prepricing Prospectus, the Prospectus, or any
amendment or supplement thereto; "Rules and Regulations" means the rules and
regulations adopted by the Commission under either the Act or the Exchange Act,
as applicable; and "Person" means any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization or
government or department or agency thereof.
2. Agreements to Sell and Purchase. Subject to such adjustments as you
may determine in order to avoid fractional shares, the Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $34.94875 per Share (the " Purchase Price Per Share"), the number of
Firm Shares which bears the same proportion to the total number of Firm Shares
being sold by the Company (4,000,000) as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders
(5,300,000).
Subject to such adjustments as you may determine in order to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter, severally and not jointly, agrees to purchase
from each Selling Stockholder at the Purchase Price Per Share the number of Firm
Shares which bears the same proportion to the number of Firm Shares set forth
opposite the name of such Selling Stockholder in Schedule I hereto as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule II
hereto (or such number of Firm Shares increased as set forth in Section 12
hereof) bears to the aggregate number of Firm Shares to be sold by the Company
and the Selling Stockholders (5,300,000).
The Company and certain of the Selling Stockholders also agree, subject
to all the terms and conditions set forth herein, to sell to the Underwriters,
and, upon the basis of the representations, warranties and agreements of the
Company and the Selling Stockholders herein contained and subject to all the
terms and conditions set forth herein, the Underwriters shall have the right to
purchase from the Company and such Selling Stockholders, at the Purchase Price
Per Share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of the Prospectus (or, if such 30th day
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shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to 345,000 Additional
Shares of Class A Common Stock from the Company and an aggregate of 450,000
Additional Shares of Class B Common Stock from such Selling Stockholders as set
forth on Schedule I. Additional Shares may be purchased only for the purpose of
covering over-allotments made in connection with the offering of the Shares.
Upon any exercise of the over-allotment option, subject to such adjustments as
you may determine in order to avoid fractional shares, each Underwriter,
severally and not jointly, agrees to purchase from each of the Company and such
Selling Stockholders, in proportions equal to those of the maximum numbers of
Additional Shares made available by the selling parties for the over-allotment
option, at the Purchase Price Per Share, that number of Additional Shares which
bears the same proportion to the total number of Additional Shares being sold by
such party pursuant to the over-allotment option as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule II hereto (or such
number of Firm Shares increased as set forth in Section 12 hereof) bears to the
aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholders (5,300,000).
Certificates in transferable form for the Shares which each of the
Selling Stockholders agrees to sell pursuant to this Agreement have been placed
in custody with BankBoston, N.A. (the "Custodian") for delivery under this
Agreement pursuant to a Custody Agreement and Power of Attorney (the "Custody
Agreement") executed by each of the Selling Stockholders appointing David B.
Amy, C. Wayne Davis and John B. Watkins as agents and attorneys-in-fact (the
"Attorneys-in-Fact"). Each Selling Stockholder agrees that (i) the Shares
represented by the certificates held in custody pursuant to the Custody
Agreement are subject to the interests of the Underwriters, the Company and each
other Selling Stockholder, (ii) the arrangements made by the Selling
Stockholders for such custody are, except as specifically provided in the
Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Stockholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Stockholder or by operation of law, whether by the
death or incapacity of any Selling Stockholder or the occurrence of any other
event. If any Selling Stockholder shall die or be incapacitated or if any other
event, shall occur before the delivery of the Shares hereunder, certificates for
the Shares of such Selling Stockholder shall be delivered to the Underwriters by
the Attorneys-in-Fact in accordance with the terms and conditions of this
Agreement and the Custody Agreement as if such death or incapacity or other
event had not occurred, regardless of whether or not the Attorneys-in-Fact or
any Underwriter shall have received notice of such death, incapacity or other
event. Each Attorney-in-Fact is authorized, on behalf of each of the Selling
Stockholders, to execute this Agreement and any other documents necessary or
desirable in connection with the sale of the Shares to be sold hereunder by such
Selling Stockholder, to make delivery of the certificates for such Shares, to
receive the proceeds of the sale of such Shares, to give receipts for such
proceeds, to pay therefrom any expenses to be borne by such Selling Stockholder
in connection with the sale and public offering of such Shares, to distribute
the balance thereof to such Selling Stockholder, and to take such other action
as may be necessary or
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desirable in connection with the transactions contemplated by this Agreement.
Each Attorney-in-Fact agrees to perform his duties under the Custody Agreement.
3. Terms of Public Offering. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, at 9:00 A.M., New
York City time, on September 23, 1997 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement between you
and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Smith Barney Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Company of the
Underwriters' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the Option
Closing Date for such Shares may be varied by agreement between you and the
Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request by written notice (it being understood that a facsimile
transmission shall be deemed written notice) prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date or any Option
Closing Date, as the case may be. Such certificates shall be made available to
you in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the Firm
Shares and any Additional Shares to be purchased hereunder shall be delivered to
you on the Closing Date or the Option Closing Date, as the case may be, against
payment of the purchase price therefor in immediately available funds to the
order of the Company and the Attorneys-in-Fact.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will
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endeavor to cause the Registration Statement or such post-effective amendment to
become effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing, when the Registration
Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or otherwise),
business, prospects, properties, net worth or results of operations, or of the
happening of any event, including the filing of any information, documents or
reports pursuant to the Exchange Act, which makes any statement of a material
fact made in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without charge (i) six
signed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits thereto, (ii) such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto, but without
exhibits, as you may reasonably request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) six
copies of the exhibits to the Incorporated Documents.
(d) So long as, in the opinion of counsel for the
Underwriters, a Prospectus is required to be delivered in connection with sales
by any Underwriter or dealer, the Company will not (i) file any amendment to the
Registration Statement, make any amendment or supplement to the Prospectus or
file any document which, upon filing becomes an Incorporated Document, of which
you shall not previously have been advised or to which you shall reasonably
object after being so advised or (ii) file any information, documents or reports
pursuant to the Exchange Act without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to
such filing.
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(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which the Shares
are offered, by the several Underwriters and by dealers, prior to the date of
the Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a Prospectus is required by the Act to be
delivered in connection with sales by any Selling Stockholder, Underwriter or
dealer, the Company will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any amendment
or supplement thereto) as you may reasonably request. The Company consents to
the use of the Prospectus (and of any amendment or supplement thereto), in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered, by the several
Underwriters and by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer. If during such period of time any event
shall occur that in the judgment of the Company or in the opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) to comply with the Act or any other law, the Company will
forthwith prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto or file an
Incorporated Document, and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof. In the event that the Company and
you, as Representatives of the several Underwriters, agree that the Prospectus
should be amended or supplemented, the Company, if requested by you, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or qualification;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where it
is not now so subject.
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(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than fifteen months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(i) During the period of five years after the date of this
Agreement, the Company will furnish to you (i) as soon as available, a copy of
each report of the Company mailed to stockholders or filed with any stock
exchange or regulatory body and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company or the Selling Stockholders to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Representatives for all out-of-pocket expenses (including fees and expenses
of counsel for the Underwriters) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus in the proper manner pursuant to Rule 424(b) under
the Act and will advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not
offer to sell, sell, contract to sell or otherwise dispose of any Common Stock
or any securities convertible into or exercisable or exchangeable for Common
Stock, or grant any options or warrants to purchase Common Stock or such
securities, for a period of 90 days after the date of the Prospectus, without
the prior written consent of Smith Barney Inc.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders designated by you.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
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(p) The Company will use its reasonable and diligent efforts
to have the Shares listed, subject to notice of issuance of Shares, on the
Nasdaq National Market concurrently with the execution of this Agreement.
6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent
necessary to cause the registration statement or any post-effective amendment
thereto to become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all federal and other
taxes, if any on the transfer or sale of the Shares being sold by such Selling
Stockholder to the Underwriters.
(c) Such Selling Stockholder will do or perform all things
required to be done or performed by such Selling Stockholder prior to the
Closing Date or any Option Closing Date, as the case may be, to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement or
as otherwise reasonably requested by the Underwriters.
(d) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(e) Except as provided in this Agreement, such Selling
Stockholder will not offer to sell, sell, contract to sell or otherwise dispose
of any Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or grant any options or warrants to purchase
Common Stock or such securities, for a period of 90 days after the date of the
Prospectus, without the prior written consent of Smith Barney Inc.
(f) Such Selling Stockholder will advise you promptly and, if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in the Company's condition
(financial or otherwise), business, prospects, properties, net worth or results
of operations, or of the happening of any event, including the filing of any
information, documents or reports pursuant to the Exchange Act, or of any change
in information relating to such Selling Stockholder or the Company or any new
information relating to the Company or relating to any matter stated in the
Prospectus or any amendment or supplement thereto which comes to the attention
of such Selling Stockholder, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or
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Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law.
7. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The Commission
has not issued any order preventing or suspending the use of any Prepricing
Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement in the form in which it became or becomes effective, and
also in such form as it may be when any post-effective amendment thereto shall
become effective, and the Prospectus and any supplement or amendment thereto
when filed with the Commission under Rule 424(b) under the Act, complied or will
comply in all material respects with the provisions of the Act and did not or
will not at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, any
further Incorporated Documents so filed will, when they are filed, conform in
all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) All the outstanding shares of the capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the Shares to be
issued and sold by the Company have
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been duly authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar rights; the
shares of Class A Common Stock which may be issued upon conversion of the
Company's Class B Common Stock will be validly issued, fully paid and
nonassessable and free of any preemptive or similar rights and the capital stock
of the Company conforms to the description thereof in the Registration Statement
and the Prospectus.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Maryland with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify would not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
(f) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed on Exhibit A hereto. Each Subsidiary is a corporation
or a trust duly organized, validly existing and in good standing in the
jurisdiction of its incorporation or organization, as the case may be, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a Material Adverse Effect; all the outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly, or indirectly through
one of the other Subsidiaries, free and clear of any lien, adverse claim,
security interest, equity or other encumbrance except as described in the
Prospectus.
(g) The Company has full legal right, power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to be sold
by it as provided herein. No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of this Agreement by
the Company or the consummation by the Company or any Subsidiary, as the case
may be, of the transactions contemplated hereby, except such as may be required
under the Act, the Exchange Act and state securities or blue sky laws or by the
National Association of Securities Dealers, Inc. The execution, delivery and
performance of this Agreement by the Company and the consummation by the Company
or any Subsidiary, as the case may be, of the transactions contemplated hereby
does not
-11-
and will not conflict with or result in a breach or violation by the Company of
any of the terms or provisions of, constitute a default by the Company under, or
result in the creation or imposition of any lien, charge, security interest or
encumbrance upon any of the assets of the Company or any Subsidiary pursuant to
the terms of any (A) indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any of the
Subsidiaries, as the case may be, is a party or to which any of them or any of
their respective properties is subject, (B) the charter or bylaws of the Company
or any of the Subsidiaries, as the case may be, or (C) any statute, judgment,
decree, order, rule or regulation of any court or governmental agency or body
applicable to the Company or any of the Subsidiaries or any of their respective
properties.
(h) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement has been duly and validly
authorized by all necessary corporate action on the part of the Company, and
this Agreement has been duly executed and delivered by the Company.
(i) Except as described or referred to in the Prospectus,
there is not pending or to the knowledge of the Company threatened, any action,
suit, proceeding, inquiry or investigation, to which the Company or any of the
Subsidiaries is a party, or to which the property of the Company or any of the
Subsidiaries is subject, before or brought by any court or governmental agency
or body, which, if determined adversely to the Company or any of the
Subsidiaries would individually or in the aggregate result in a Material Adverse
Effect or might materially adversely affect the consummation of the transactions
contemplated by this Agreement; and all pending legal or governmental
proceedings to which the Company or any of the Subsidiaries is a party or that
affect any of their respective properties, that are not described in the
Prospectus or the Incorporated Documents, including ordinary routine litigation
incidental to the business, would not, if determined adversely to the Company or
any of the Subsidiaries, individually or in the aggregate, result in a Material
Adverse Effect.
(j) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or bylaws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries, or in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound and no condition or state of facts exists,
with which the passage of time or the giving of notice or both would constitute
such a default, except in each case where such violation or default would not,
singly or in the aggregate, have a Material Adverse Effect.
-12-
(k) There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act.
(l) The accountants, Arthur Andersen LLP, Ernst & Young LLP,
KPMG Peat Marwick LLP and Price Waterhouse LLP, who have certified or shall
certify the financial statements included in or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), are independent public accountants as required by the Act.
(m) The consolidated financial statements, together with the
related schedules and notes included in or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial position, results of operations and changes in financial position of
the entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis, except as
otherwise stated therein. The selected financial data and summary financial data
included in or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited consolidated financial statements
included in the Registration Statement and the Prospectus. The pro forma
financial statements and other pro forma financial information included in or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein in accordance with the adjustments
and assumptions described therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma basis described therein
and in the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(n) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and the Subsidiaries
taken as a whole.
-13-
(o) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the Prospectus
as being owned by it, free and clear of all liens, claims, security interests or
other encumbrances, except such as are described in the Registration Statement
and the Prospectus or with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such properties by the
Company and the Subsidiaries and could not reasonably be expected individually
or in the aggregate to result in a Material Adverse Effect; and all of the
leases and subleases material to the business of the Company and the
Subsidiaries taken as a whole, and under which the Company or any of the
Subsidiaries holds properties whether or not described in the Registration
Statement and the Prospectus, are in full force and effect and neither the
Company nor any of the Subsidiaries has any notice of any claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any of the
Subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any of the Subsidiaries to the
continued possession of the leased or subleased premises under any such lease or
sublease, which claim could reasonably be expected individually or in the
aggregate to result in a Material Adverse Effect.
(p) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, trademarks, service marks, trade names and
know-how (including trade secrets and other patentable and/or unpatentable
proprietary or confidential information or procedures) (collectively,
"intellectual property") necessary to carry on its business as presently
operated by it, except where the failure to own or possess or have the ability
to acquire any such intellectual property would not individually or in the
aggregate result in a Material Adverse Effect; and none of the Company or any of
the Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
intellectual property or of any facts which would render any intellectual
property invalid or inadequate to protect the interest of the Company or any of
the Subsidiaries therein and which infringement or conflict could reasonably be
expected in the aggregate to result in a Material Adverse Effect.
(q) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act. None of the Company or any of the Subsidiaries has taken, or will take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
the Shares or any shares of capital stock of the Company.
(r) Except as described in or contemplated by the Prospectus,
each of the Company and the Subsidiaries owns or possesses all governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations necessary to own its
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properties and to conduct its business in the manner described in the
Prospectus, except where the failure to own or possess such licenses, permits,
certificates, consents, orders, approvals and other authorizations
(collectively, "Material Licenses") would not individually or in the aggregate
result in a Material Adverse Effect; all of the Material Licenses are valid and
in full force and effect; and no event, including receipt of notice of
proceedings relating to revocation or modification of any Material Licenses, has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of the rights
of any holder of any such Material License, subject in each case to such
qualifications as may be set forth in the Prospectus.
(s) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(t) To the best of the Company's knowledge, neither the
Company nor any of its Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(u) Except as disclosed in the Prospectus, all United States
federal income tax returns of the Company and the Subsidiaries required by law
to be filed have been filed (taking into account extensions granted by the
applicable federal governmental agency) and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid, except for such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided and except for such taxes the payment of which would
not individually or in the aggregate result in a Material Adverse Effect. All
other corporate franchise and income tax returns of the Company and the
Subsidiaries required to be filed pursuant to applicable foreign, state or local
law have been filed except insofar as the failure to file such returns would not
individually or in the aggregate result in a Material Adverse Effect, and all
taxes shown on such returns or otherwise assessed which are due and payable have
been paid, except for such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided and except for such taxes
the payment of which would not individually or in the aggregate result in a
Material Adverse Effect.
-15-
(v) Except for rights which have been waived, no holder of any
security of the Company or any Subsidiary has any right to require registration
of shares of capital stock or any other security of the Company because of
consummation of the transactions contemplated by this Agreement or otherwise.
Except as described or incorporated by reference in or contemplated by the
Prospectus, there are no outstanding options, warrants or other rights calling
for the issuance of, and there are no commitments, plans or arrangements to
issue, any shares of capital stock or debt securities of the Company or any
security convertible into or exchangeable or exercisable for capital stock or
debt securities of the Company.
(w) Each of the Company and the Subsidiaries is not now, and
after sale of the Shares as contemplated hereunder and application of the net
proceeds from such sale as described in the Prospectus under the caption "Use of
Proceeds" will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(x) The Company has filed in a timely manner each document or
report required to be filed by it pursuant to the Exchange Act and the rules and
regulations thereunder; each such document or report (including any financial
statements) and any amendment thereto at the time it was filed conformed to the
requirements of the Exchange Act and the rules and regulations thereunder; and
none of such documents or reports contained an untrue statement of any material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(y) Except as described in the Prospectus, the Company and the
Subsidiaries comply in all material respects with all Environmental Laws (as
defined below), except to the extent that failure to comply with such
Environmental Laws would not individually or in the aggregate result in a
Material Adverse Effect. To the knowledge of the Company, none of the Company or
any of the Subsidiaries is the subject of any pending or, to the knowledge of
the Company, threatened federal, state or local investigation evaluating whether
any remedial action by the Company or any of the Subsidiaries is needed to
respond to a release of any Hazardous Materials (as defined below) into the
environment, resulting from the Company's or any of the Subsidiaries' business
operations or ownership or possession of any of their properties or assets or is
in contravention of any Environmental Law that could reasonably be expected
individually or in the aggregate to result in a Material Adverse Effect. None of
the Company or any of the Subsidiaries have received any notice or claim, nor
are there pending or, to the knowledge of the Company, threatened lawsuits
against them, with respect to violations of an Environmental Law or in
connection with any release of any Hazardous Material into the environment that
could reasonably be expected in the aggregate to result in a Material Adverse
Effect. As used herein, "Environmental Laws" means any federal, state or local
law or regulation applicable to the Company's or any of the Subsidiaries'
business operation or ownership or possession of any of their properties or
assets relating
-16-
to environmental matters, and "Hazardous Materials" means those substances that
are regulated by or form the basis of liability under any Environmental Laws.
(z) No labor problem exists with the employees of the Company
or any of the Subsidiaries or, to the knowledge of the Company, is imminent
that, in either case, could reasonably be expected individually or in the
aggregate to result in a Material Adverse Effect.
(aa) The Company and each of the Subsidiaries maintain
insurance of the types and in the amounts that are reasonable for the businesses
operated by them, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and the Subsidiaries against
theft, damage, destruction, acts of vandalism, liability and malpractice, all of
which insurance is in full force and effect.
(bb) The Company and each of the Subsidiaries is in compliance
with, and each such entity has not received any notice of any outstanding
violation of, all laws, regulations, ordinances and rules applicable to it and
its operations, except, in either case, where any failure by the Company or any
of the Subsidiaries to comply with any such law, regulation, ordinance or rule
would not individually or in the aggregate result in a Material Adverse Effect.
(cc) There are no business relationships or related-party
transactions of the nature described in Item 404 of Regulation S-K involving the
Company or any of its Subsidiaries and any person described in such Item that
are required to be disclosed in the Prospectus and which have not been so
disclosed.
(dd) To the best of the Company's knowledge, each of Baltimore
(WNUV-TV) Licensee, Inc. as the licensee of WNUV-TV, Baltimore, Maryland; WVTV
Licensee, Inc. as the licensee of WVTV(TV), Milwaukee, Wisconsin; WPTT, Inc. as
the licensee of WPTT(TV), Pittsburgh, Pennsylvania; Raleigh (WRDC-TV) Licensee,
Inc. as the licensee of WRDC(TV), Durham, North Carolina; River City License
Partnership as the licensee of WTTV(TV), Bloomington, Indiana and WTTK(TV),
Kokomo, Indiana; Anderson (WFBC-TV) Licensee, Inc. as the licensee of WFBC-TV,
Anderson, South Carolina; San Antonio (KRRT-TV) Licensee, Inc. as the licensee
of KRRT(TV), Kerrville, Texas; Tiab Communications Corporation as the licensee
of WILT(AM), Mt. Pocono, Pennsylvania; WDBB-TV, Inc. as the licensee of
WDBB(TV), Tuscaloosa, Alabama; and Birmingham (WABM-TV) Licensee, Inc. as the
licensee of WABM(TV), Birmingham, Alabama (each individually an "LMA Station"
and together the "LMA Stations") owns or possesses all governmental licenses,
permits, certificates, consents, orders, approvals and other authorizations
necessary to own its properties (collectively, the "LMA Material Licenses"), and
to conduct its business in the manner described in the Prospectus, except where
the failure to own or possess such licenses, permits, certificates, consents,
orders, approvals and other authorizations would not individually or in the
aggregate result in any Material Adverse Effect; all of the LMA Material
Licenses are valid and in full force and effect; and no event, including receipt
of notice of proceedings
-17-
relating to revocation or modification of any LMA Material License, has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or result in any other material impairment of the rights of
any holder of any such permit, subject in each case to such qualifications as
may be set forth in the Prospectus; and, except as described in the Prospectus,
none of such permits contains any restriction that is materially burdensome to
the LMA Station or the Company and the Subsidiaries; and there is in full force
and effect with each LMA Station a contract, enforceable in accordance with its
terms against the Company and against the LMA Station pursuant to which the
Company provides programming services to the LMA Station as described or except
as described in the Incorporated Documents.
(ee) The execution and delivery of the Heritage Acquisition
Agreements (as defined in the Prospectus) by the Company have been duly
authorized by all necessary corporate action. The Heritage Acquisition
Agreements have been duly executed and delivered by the Company and after
execution and delivery by the other parties thereto are the legal, valid,
binding and enforceable obligations of the parties thereto. There have been no
amendments to the Heritage Acquisition Agreements subsequent to the date
thereof.
(ff) The execution and delivery of the Underwriting Agreement,
dated September 17, 1997 (the "Preferred Underwriting Agreement") among the
Company and certain underwriters, relating to the issuance and sale of 3,000,000
shares of $3.00 Convertible Exchangeable Preferred Stock, by the Company have
been duly authorized by all necessary corporate action. The Preferred
Underwriting Agreement has been duly executed and delivered by the Company and
when executed and delivered by the Underwriters will be the legal, valid,
binding and enforceable obligation of the Company. No consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the execution, delivery or
performance of the Preferred Underwriting Agreement by the Company or the
consummation by the Company of the transactions contemplated thereby, except
such as may be required under the Act, the Exchange Act and state securities or
blue sky laws or by the National Association of Securities Dealers, Inc. (the
"NASD") The execution, delivery and performance of the Preferred Underwriting
Agreement by the Company and the consummation by the Company or any Subsidiary,
as the case may be, of the transactions contemplated thereby does not and will
not conflict with or result in a breach or violation by the Company of any of
the terms or provisions of, constitute a default by the Company under, or result
in the creation or imposition of any lien, charge, security interest or
encumbrance upon any of the assets of the Company or any Subsidiary pursuant to
the terms of any (A) indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any of the
Subsidiaries, as the case may be, is a party or to which any of them or any of
their respective properties is subject, (B) the charter or bylaws of the Company
or any of the Subsidiaries, as the case may be, or (C) any statute, judgment,
decree, order, rule or regulation of any court or governmental agency or body
applicable to the Company or any of the Subsidiaries or
-18-
any of their respective properties. The representations and warranties made by
the Company in the Preferred Underwriting Agreement are true, complete and
correct.
8. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder now has, and on the Closing Date
will have, valid and marketable title to the Shares to be sold by such Selling
Stockholder, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Stockholder now has, and on the Closing Date
will have, full legal right, power and authorization, and any approval required
by law, to sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement, and upon delivery of and payment for such Shares hereunder,
the several Underwriters will acquire valid and marketable title to such Shares
free and clear of any lien, claim, security interest, or other encumbrance.
(c) Each of this Agreement and the Custody Agreement has been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding agreement of such Selling Stockholder
enforceable against such Selling Stockholder in accordance with its terms. By
law no spousal consents are needed and no agreement, indenture or other
instrument exists which would require spousal consents to effectuate the
transactions contemplated by this Agreement or the Custody Agreement.
(d) Neither the execution and delivery of this Agreement or
the Custody Agreement by or on behalf of such Selling Stockholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Stockholder requires any consent, approval, authorization or
order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares) or conflicts or will conflict with or constitutes or will constitute a
breach of, or default under, or violates or will violate, any agreement,
indenture or other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is or may be bound or to which any of such
Selling Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to such
Selling Stockholder or to any property or assets of such Selling Stockholder.
(e) Such Selling Stockholder does not have any knowledge or
any reason to believe that the Registration Statement, Prepricing Prospectus or
the Prospectus (or any amendment or supplement thereto) contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
-19-
(f) The representations and warranties of such Selling
Stockholder in the Custody Agreement are, and on the Closing Date and any Option
Closing Date will be, true and correct.
(g) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares, except for the lock-up arrangements
described in the Prepricing Prospectus or the Prospectus.
9. Indemnification and Contribution.
(a) Each of the Company and the Selling Stockholders jointly
and severally agrees to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prepricing Prospectus or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by such Underwriter to any person if a copy of the Prospectus
shall not have been delivered or sent to such person within the time required by
the Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Prepricing Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company or
any of the Selling Stockholders may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the party against
whom indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the
-20-
defense thereof, including the employment of counsel and payment of all fees and
expenses. Such Underwriter or any such controlling person shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Underwriter or such
controlling person and the indemnifying parties and such Underwriter or such
controlling person shall have been advised by its counsel that representation of
such indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Smith Barney Inc., and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, each Selling Stockholder, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
to the same extent as the foregoing indemnity from the Company and the Selling
Stockholders to each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, any Selling Stockholder or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and
-21-
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company, its directors, any of such officers,
the Selling Stockholders and any such controlling persons shall have the rights
and duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Shares 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 Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company, the Selling Stockholders or the Underwriters
from the offering of the Shares shall include the net proceeds (before deducting
expenses) received by the Company and the Selling Stockholders and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand 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 and the Selling Stockholders on
the one hand or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-22-
(e) The Company the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total fees received (and not reimbursed to the Company) by such
Underwriter with respect to the Shares underwritten by it and distributed 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 to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 12 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding 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 claims that are the
subject matter of such action, suit or proceeding 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 any indemnified party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers,
the Selling Stockholders or any person controlling the Company, (ii) acceptance
of any Shares and payment therefor hereunder and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, or a Selling Stockholder
-23-
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
10. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially, adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company or any Selling
Stockholder which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Thomas & Libowitz, P.A., counsel for the Company and the Selling Stockholders,
dated the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Maryland, with full power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and is duly
qualified to transact business as a foreign corporation in good standing under
the laws of each jurisdiction where the
-24-
ownership or leasing of its properties or the conduct of its business requires
such qualification except where the failure to so qualify would not have a
material adverse effect upon its business taken as a whole;
(ii) All of the outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and non-assessable and were not issued in violation of any preemptive or similar
rights of stockholders of the Company arising under the corporation laws of the
State of Maryland, under the charter or bylaws of the Company or, to the best of
such counsel's knowledge, under any agreement to which the Company is a party;
(iii) Each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation, with full power and
authority to own its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business as a foreign corporation
in good standing under the laws of each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification; and all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights of stockholders of such Subsidiary arising under the corporation law of
its respective jurisdiction of incorporation, its charter or bylaws or, to the
best of such counsel's knowledge, under any agreement to which such Subsidiary
is a party, and all of the outstanding shares of capital stock of each of the
Subsidiaries are owned beneficially by the Company free and clear of all liens,
encumbrances, equities and claims except as described in the Prospectus;
(iv) To the knowledge of such counsel, except as
described or referred to in the Prospectus, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any of the Subsidiaries is a party, or to which the property of the Company or
any of the Subsidiaries is subject, before or brought by any court or
governmental agency or body which, if determined adversely to the Company or any
of the Subsidiaries, would individually or in the aggregate result in any
material adverse change in the business, financial position, net worth, results
of operation or prospects, or materially adversely affect the properties and
assets collectively of the Company and the Subsidiaries taken as a whole or
might materially adversely affect the consummation of the transactions
contemplated by the Registration Statement; and all pending legal or
governmental proceedings to which the Company or any of the Subsidiaries is a
party or that affect any of their respective properties that are not described
in the Prospectus, including ordinary routine litigation incidental to the
business, are considered in the aggregate not to result in a material adverse
change in the business, financial position, net worth, results of operation or
prospects, or materially adversely affect the properties and assets collectively
of the Company and the Subsidiaries taken as a whole;
-25-
(v) The execution, delivery and performance of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby and compliance by the Company with the terms hereof does not and will not
conflict with or result in a breach or violation by the Company or any
Subsidiary, as the case may be, of any of the terms or provisions of, constitute
a default by the Company or any Subsidiary, as the case may be, under, or result
in the creation or imposition of any lien, charge, security interest or
encumbrance upon any of the assets of the Company or any Subsidiary, as the case
may be, pursuant to the terms of (a) any material indenture, mortgage, deed of
trust, loan or credit agreement, bond, debenture, note, lease or other agreement
or instrument to which the Company or any Subsidiary, as the case may be, is a
party or to which any of them or any of their respective properties is subject;
(b) the charter or bylaws of the Company or any Subsidiary, as the case may be;
or (c) any statute, rule or regulation or, to the best of such counsel's
knowledge, any judgment, decree or order of any court or governmental agency or
court or body applicable to the Company or any of the Subsidiaries or any of
their respective properties;
(vi) Neither the Company nor any of the Subsidiaries
is in violation of its respective certificate or articles of incorporation or
bylaws, or other organizational documents, or to the knowledge of such counsel
after reasonable inquiry, is in default in the performance of any material
obligation, agreement or condition contained in any bond, debenture, note or
other evidence of indebtedness, except as may be disclosed in the Prospectus;
(vii) Except as described or incorporated by
reference in the Prospectus, there are no outstanding options, warrants or other
rights calling for the issuance of, and such counsel does not know of any
commitment, plan or arrangement to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable or exercisable for
capital stock of the Company;
(viii) Except for rights which have been waived,
there is no holder of any security of the Company or any other person who has
the right, contractual or otherwise, to cause the Company to sell or otherwise
issue to them, or to permit them to underwrite the sale of, the Shares or the
right to have any shares of capital stock or other securities of the Company
included in the registration statement or the right, as a result of the filing
of the registration statement, to require registration under the Act of any
shares of capital stock or other securities of the Company;
(ix) The Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to be sold
by it to the Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company;
(x) The execution and delivery of the Heritage
Acquisition Agreements by the Company have been duly authorized by all necessary
corporate action, and the Heritage Acquisition Agreements have been duly
executed and delivered by the
-26-
Company and after execution and delivery by the other parties thereto are the
legal, valid, binding and enforceable obligations of the Company. To the best
knowledge of such counsel, there have been no amendments to the Heritage
Acquisition Agreements subsequent to the date thereof;
(xi) Each of this Agreement and the Custody Agreement
has been duly authorized, executed and delivered by or on behalf of each of the
Selling Stockholders, and the Custody Agreement is a valid and binding agreement
of each Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms. By law no spousal consents are needed and to the
knowledge of such counsel no agreement, indenture or other instrument exists
which would require spousal consents to effectuate the transactions contemplated
by this Agreement or the Custody Agreement;
(xii) To the knowledge of such counsel, each Selling
Stockholder has full legal right, power and authorization, and has obtained any
approval required by law, to sell, assign, transfer and deliver good and
marketable title to the Shares which such Selling Stockholder has agreed to sell
pursuant to this Agreement. Upon delivery and payment for such Shares to be sold
by such Selling Stockholder hereunder in accordance with this Agreement, the
Underwriters (whom counsel may assume to be bona fide purchasers) will acquire
good and marketable title to such Shares so sold; and
(xiii) Neither the execution and delivery of this
Agreement or the Custody Agreement by or on behalf of such Selling Stockholder
nor the consummation of the transactions herein or therein contemplated by or on
behalf of such Selling Stockholder requires any consent, approval, authorization
or order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares or with the NASD) or conflicts or will conflict with or constitutes or
will constitute a breach of, or default under, or violates or will violate, any
agreement, indenture or other instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is or may be bound or to which any of
such Selling Stockholder's property or assets is subject, or any statute, law,
rule, regulation, ruling, judgment, injunction, order or decree applicable to
such Selling Stockholder or to any property or assets of such Selling
Stockholder.
In addition, such opinion shall state that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or the information contained in or incorporated by reference in the
Registration Statement or the Prospectus and such counsel is not passing upon
and does not assume any responsibility therefor. In the course of the
preparation by the Company and the Subsidiaries of the Registration Statement
and the Prospectus, such counsel has participated in discussions with
representatives of the Underwriters and those of the Company and the
-27-
Subsidiaries and their independent accountants, in which the business and
affairs of the Company and the Subsidiaries and the contents of the Registration
Statement and the Prospectus (including the Incorporated Documents) were
discussed. Based upon the information such counsel gained in the course of such
counsel's representation of the Company and the Subsidiaries in connection with
their preparation of the Registration Statement and the Prospectus and such
counsel's participation in the discussions referred to above, such counsel has
no reason to believe that (i) as of its effective date, the Registration
Statement (including the Rule 430A Information, if applicable, and any amendment
thereto) or any of the Incorporated Documents contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, or any amendment or supplement thereto, at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Date, contains any untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. Such
counsel need express no opinion, however, as to the financial statements,
including the notes and schedules thereto, or any other financial data included
in the Registration Statement, the Prospectus or the Incorporated Documents.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States and the law of the State of Maryland, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate representatives of
the Company and the Subsidiaries and certificates of public officials and the
Selling Stockholders.
(d) You shall have received on the Closing Date, an opinion of
Wilmer, Cutler & Pickering, securities counsel for the Company, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Maryland, with full power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and is duly
qualified to transact business as a foreign corporation in good standing under
the laws of each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification except where the
failure to so qualify would not have a material adverse effect upon its business
taken as a whole;
(ii) The Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to be sold
by it to the Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company;
-28-
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of this Agreement by
the Company or the consummation by the Company of the transactions contemplated
by this Agreement, except (i) such as have been obtained under the Act and the
Exchange Act and (ii) such as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Shares by the
several Underwriters or as may be required by the NASD, as to each of which in
clause (ii) such counsel expresses no opinion;
(iv) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings, and contracts
and other documents present fairly in all material respects the information
required to be shown; and such counsel does not know of any statutes or
regulations or any pending or threatened legal or governmental proceedings
required to be described in the Prospectus which are not described as required,
nor of any contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as required. Such
counsel need express no opinion as to the description of any statute, regulation
or proceedings with respect to the regulation of the Company and the
Subsidiaries by the Federal Communications Commission.
(v) The authorized and outstanding capital stock of
the Company is as set forth under the caption "Capitalization" in the
Prospectus; and the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained in
the Prospectus under the caption "Description of Capital Stock;"
(vi) All the shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and sold by the
Company pursuant to this Agreement have been duly authorized and validly issued,
and are fully paid and nonassessable;
(vii) The Shares to be issued and sold to the
Underwriters by the Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights that entitle or will entitle any person to
acquire any Shares upon the issuance thereof by the Company;
(viii) The form of certificates for the Shares
conforms to the requirements of the corporation law of the State of Maryland;
(ix) The Registration Statement and the Prospectus
and any supplements or amendments thereto as of their respective dates of filing
with the Commission, comply as to form in all material respects to the
requirements of the Act as
-29-
applicable to registration statements on Form S-3, except that such counsel,
however, need express no opinion as to the financial statements, schedules and
other financial data included in the Registration Statement or the Prospectus;
(x) The Registration Statement has become effective
under the Act, any required filing of the Prospectus or any supplement thereto
has been made with the Commission pursuant to Rule 424(b), in the manner and
within the time period required by Rule 424(b), and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated under the Act;
(xi) Upon delivery of the Shares pursuant to the
Underwriting Agreement and payment therefor as contemplated therein, assuming
that the Underwriters are bona fide purchasers within the meaning of the New
York Uniform Commercial Code, the Underwriters will acquire good and marketable
title to the Shares free and clear of any lien, claim, security interest, or
other encumbrance, restriction on transfer or other defect in title;
(xii) Neither the Company nor any Subsidiary is an
investment company within the meaning of the Investment Company Act of 1940, as
amended; and
(xiii) All Incorporated Documents, when they were
filed with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act; and such counsel has no reason to believe that
any of such documents, when they were so filed, contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading (except for the financial
statements, schedules or other financial data contained in any such document as
to which counsel need express no opinion).
In addition, such opinion shall state that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or the information contained in the Registration Statement or the
Prospectus (including the Incorporated Documents) and, except with respect to
the descriptions referred to in paragraphs (iv) and (v) above, such counsel is
not passing upon and does not assume any responsibility therefor. In the course
of the preparation by the Company of the Registration Statement and the
Prospectus (including the Incorporated Documents), such counsel has participated
in discussions with representatives of the Underwriters and those of the Company
and their independent accountants, in which the business and affairs of the
Company and the Subsidiaries and the contents of the Registration Statement and
the Prospectus (including the Incorporated Documents) were discussed. Based upon
the information such counsel gained in the course of such counsel's
representation of the Company in connection with its preparation of the
Registration Statement and the Prospectus and such counsel's participation in
the discussions referred to above, nothing has come to such counsel's
-30-
attention that leads them to believe that (i) as of its effective date, the
Registration Statement (including the Rule 430A Information, if applicable, and
any amendment thereto) or any of the Incorporated Documents contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(ii) the Prospectus, or any amendment or supplement thereto, at the time the
Prospectus were issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such counsel need express no opinion, however, as to the financial
statements, including the notes and schedules thereto, or any other financial
information included in the Registration Statement, the Prospectus or the
Incorporated Documents.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, the law of the State of New York, the law of the State of Maryland and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers or other appropriate
representatives of the Company and the Subsidiaries and certificates of public
officials.
(e) The Underwriters shall have received an Opinion, dated the
Closing Date of Fisher, Wayland, Cooper, Leader & Zaragoza, L.L.P., regulatory
counsel for the Company, in form and substance satisfactory to the Underwriters
to the effect that:
(i) Except for such Federal Communications Commission
(the "FCC") approvals that have already been obtained, which approvals, to such
counsel's knowledge, are in full force and effect, no FCC approval,
authorization, consent or license is required under the Communications Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"Communications Laws") for the consummation of the transactions contemplated by
this Agreement and the issuance and sale under this Agreement of the Shares. The
execution, delivery and performance in accordance with the terms of this
Agreement by the Company will not violate the Communications Laws. It should be
noted that, under the Communications Laws, FCC approval is required prior to the
transfer of control of the Company or any of the Subsidiaries which hold
broadcast licenses or the assignment of any FCC licenses or authorizations or
prior to the exercise of any voting rights or management authority over the
Company or any of the Subsidiaries which hold broadcast licenses to the extent
that such exercise constitutes a transfer of control of the Company or any of
such Subsidiaries or an assignment of any FCC licenses or authorizations.
(ii) The following Subsidiaries are the licensees of
the respective stations as identified below, and, except as disclosed in the
Prospectus, are authorized to own and operate their respective stations:
-31-
Subsidiary Station
- ---------- -------
Chesapeake Television WBFF(TV)
Licensee, Inc. Baltimore, MD
WTTE, Channel 28 Licensee, WTTE(TV)
Inc. Columbus, OH
WPGH Licensee, Inc. WPGH-TV
Pittsburgh, PA
WCGV Licensee, Inc. WCGV-TV
Milwaukee, Wisconsin
WTTO Licensee, Inc. WTTO(TV)
Birmingham, Alabama
WLFL Licensee, Inc. WLFL(TV)
Raleigh, North Carolina
WTVZ Licensee, Inc. WTVZ-TV
Norfolk, Virginia
WSTR Licensee, Inc. WSTR-TV
Cincinnati, Ohio
KSMO Licensee, Inc. KSMO-TV
Kansas City, MO
WYZZ Licensee Inc. WYZZ(TV)
Bloomington, Illinois
Superior OK License Corp. KOCB(TV)
Oklahoma City, OK
Superior KY License Corp. WDKY-TV
Danville, KY
WSMH Licensee, Inc. WSMH(TV)
Flint, MI
KOVR Licensee, Inc. KOVR(TV)
Stockton, CA
KDSM Licensee, Inc. KDSM-TV
Des Moines, IA
KDNL Licensee, Inc. KDNL-TV
St. Louis, MO
KUPN Licensee, Inc. KUPN(TV)
Las Vegas, NV
-32-
KABB Licensee, Inc. KABB(TV)
San Antonio, TX
WLOS Licensee, Inc. WLOS(TV)
Asheville, NC
Sinclair Radio of Los Angeles Licensee, Inc. KBLA(AM)
Santa Monica, CA
Sinclair Radio of New Orleans Licensee, Inc. WWL(AM), New Orleans, Louisiana
WSMB(AM), New Orleans, Louisiana
WLMG(FM), New Orleans, Louisiana
KMEZ(FM), Belle Chasse, Louisiana
Sinclair Radio of Buffalo Licensee, Inc. WBEN(AM), Buffalo, New York
WWKB(AM), Buffalo, New York
WMJQ(FM), Buffalo, New York
WKSE(FM), Niagara Falls, New York
WGR(AM), Buffalo, New York
WWWS (AM), Buffalo, New York
Sinclair Radio of Memphis Licensee, Inc. WJCE(AM), Memphis, Tennessee
WRVR-FM, Memphis, Tennessee
WOGY-FM, Germantown, Tennessee
Sinclair Radio of Nashville Licensee, Inc. WLAC(AM), Nashville, Tennessee
WLAC-FM, Nashville, Tennessee
WJZC(FM), Russellville, Kentucky
Sinclair Radio of Wilkes-Barre Licensee, Inc. WGBI(AM), Scranton, Pennsylvania
WILK(AM), Wilkes-Barre, Pennsylvania
WGGY(FM), Scranton, Pennsylvania
WKRZ(FM), Wilkes-Barre, Pennsylvania
WILP(AM), West Hazelton, Pennsylvania
WWFH(FM), Freeland, Pennsylvania
WKRF(FM), Tobyhanna, Pennsylvania
WWSH(FM), Pittston, Pennsylvania
Sinclair Radio of St. Louis Licensee, Inc. WVRV(FM), East St. Louis, Illinois
KPNT(FM), St. Genevieve, Missouri
To such counsel's knowledge, all of the licenses held by the subsidiaries
identified in this paragraph (ii) necessary to operate their respective stations
(the "FCC Material Licenses") are valid and in full force and effect. The
stations identified in this paragraph (ii) are collectively referred to as the
"Stations."
(iii) To the best of such counsel's knowledge,
Baltimore (WNUV-TV) Licensee, Inc. is the licensee of WNUV-TV, Baltimore,
Maryland; WVTV Licensee,
-33-
Inc. is the licensee of WVTV(TV), Milwaukee, Wisconsin; WPTT, Inc. is the
licensee of WPTT(TV), Pittsburgh, Pennsylvania; Raleigh (WRDC-TV) Licensee, Inc.
is the licensee of WRDC(TV), Durham, North Carolina; River City License
Partnership is the licensee of WTTV(TV), Bloomington, Indiana and WTTK(TV),
Kokomo, Indiana; Anderson (WFBC-TV) Licensee, Inc. is the licensee of WFBC-TV,
Anderson, South Carolina; San Antonio (KRRT-TV) Licensee, Inc. is the licensee
of KRRT(TV), Kerrville, Texas; Tiab Communications Corporation is the licensee
of WILT(AM), Mt. Pocono, Pennsylvania; WDBB-TV, Inc. is the licensee of
WDBB(TV), Tuscaloosa, Alabama; and Birmingham (WABM-TV) Licensee, Inc., is the
licensee of WABM(TV), Birmingham, Alabama. To the best of such counsel's
knowledge, Baltimore (WNUV-TV) Licensee, Inc., WVTV Licensee, Inc., WPTT, Inc.,
Raleigh (WRDC-TV) Licensee, Inc., River City License Partnership, Anderson
(WFBC-TV) Licensee, Inc., San Antonio (KRRT-TV) Licensee, Inc., Tiab
Communications Corporation, WDBB-TV, Inc., and Birmingham (WABM-TV) Licensee,
Inc., (collectively the "LMA Station Licensees"), except as disclosed in the
Prospectus, are authorized to own and operate their respective LMA stations
identified in this Paragraph (iii) (each individually a "LMA Station" and
collectively the "LMA Stations". To such counsel's knowledge, the licenses held
by the LMA Station Licensees to own and operate their respective LMA Stations
are valid and in full force and effect.
(iv) Except as set forth in the Prospectus, to such
counsel's knowledge, there are no proceedings pending or threatened in writing
under the Communications Laws that are specifically directed against the
Company, the Subsidiaries, or the Stations before or by the FCC or any court
having jurisdiction over matters arising under the Communications Laws, relating
to any invalidity, revocation, or modification of any FCC Material Licenses,
wherein an unfavorable ruling, decision, or finding would materially and
adversely change the financial condition, business or properties of the Company
and the Subsidiaries individually or taken as a whole. To such counsel's
knowledge, based solely upon such counsel's examination of records available for
public inspection at the FCC in Washington, D.C., the Stations are operating in
compliance with their FCC Material Licenses, except possibly for noncompliance
that would not have a material adverse effect on the financial condition,
business or properties of the Company and the Subsidiaries individually or taken
as a whole.
(v) The statements in the Prospectus under the
captions (a) "RISK FACTORS--Competition" "--Impact of New Technologies,"
"--Governmental Regulations; Necessity of Maintaining FCC Licenses," "--Multiple
Ownership Rules and Effect on LMAs," and "--LMAs - Rights of Preemption and
Termination" and (b) "BUSINESS OF SINCLAIR-- Federal Regulation of Television
and Radio Broadcasting" insofar as such statements constitute a summary of
material Communications Laws and material proceedings, fairly and in all
material respects present the information contained under such captions in light
of the circumstances in which such statements are made, and to the extent they
constitute matters of law and legal conclusions under the Communications Laws,
fairly and in all material respects
-34-
accurately present the information contained under such captions in light of the
circumstances in which such statements are made.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers or other appropriate representatives of the Company and
the Subsidiaries and certificates of public officials.
(f) You shall have received on the Closing Date an opinion of
Fried, Frank, Harris, Shriver & Jacobson, counsel for the Underwriters, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, with respect to the matters agreed upon. In addition, such opinion
shall also state the following: In the course of the preparation by the Company
of the Registration Statement and the Prospectus, such counsel participated in
conferences with certain of the officers and representatives of, and the
independent public accountants for, the Company, at which the Registration
Statement and the Prospectus were discussed. Between the date of effectiveness
of the Registration Statement and the time of delivery of such opinion, such
counsel attended additional conferences with certain of the officers and
representatives of the Company, at which the contents of the Prospectus were
discussed to a limited extent. Given the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process, such counsel is not passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. Subject to the
foregoing and on the basis of the information gained in the performance of the
services referred to above, including information obtained from officers and
other representatives of, and the independent public accountants for, the
Company, no facts have come to such counsel's attention that cause such counsel
to believe that the Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus as of its effective date contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein in light of the circumstances under which they were made not misleading.
Also, subject to the foregoing, no facts have come to such counsel's attention
in the course of proceedings described in the second sentence of this paragraph
that cause such counsel to believe that the Prospectus, at the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading. Such
counsel express no view or belief, however, with respect to financial
statements, notes or schedules thereto or other financial information included
in or omitted from the Registration Statement or Prospectus.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, the law of the
-35-
State of New York, and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to the Underwriters. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers or other
appropriate representatives of the Company and the Subsidiaries and certificates
of public officials.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Arthur Andersen LLP, Ernst & Young LLP, KPMG Peat Marwick and
Price Waterhouse LLP, independent certified public accountants, substantially in
the forms heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other officers
as are acceptable to you), to the effect set forth in this Section 10(h) and in
Section 10(i) hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements contained
in this Agreement and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(j) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have
-36-
received certificates, dated the Closing Date and signed by or on behalf of each
Selling Stockholder to the effect set forth in this Section 10(j) and in Section
10(k) hereof.
(k) The Selling Stockholders shall not have failed at or prior
to the Closing Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them hereunder
at or prior to the Closing Date.
(l) The Shares shall have been listed or approved for listing
upon notice of issuance on the Nasdaq National Market.
(m) Each of Thomas & Libowitz, P.A. and Wilmer, Cutler &
Pickering shall have delivered to you a signed copy of the opinion rendered by
such counsel pursuant to the Preferred Underwriting Agreement to the
underwriters party thereto, accompanied by a letter dated as of the date of such
opinion stating that you may rely on such opinion as if it were addressed to
you.
(n) The Company shall have entered into an amendment to the
Bank Credit Agreement (as defined in the Prospectus) previously submitted to the
Underwriters and in form and substance satisfactory to them which permits the
transactions contemplated in the Preferred Underwriting Agreement and the use of
the proceeds of such transactions as described in the Prospectus.
(o) The Company shall have furnished to you "lock-up" letters,
in form and substance satisfactory to you, signed by each of its current
officers and directors and each of its stockholders designated by you.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company or any
Attorney-in-Fact or any Selling Stockholder and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters, shall
be deemed a representation and warranty by the Company to each Underwriter as to
the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d) and
(f) shall be revised to reflect the sale of Additional Shares.
11. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations
-37-
hereunder: (i) the preparation, printing or reproduction, and filing with the
Commission of the Registration Statement (including financial statements and
exhibits thereto), the Prepricing Prospectus, the Prospectus, and each amendment
or supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, the Prepricing Prospectus, the
Prospectus, and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the listing of the Shares on the Nasdaq National
Market; (vi) the lodging, meals and expenses incurred by or on behalf of Company
officers in connection with presentations to prospective purchasers of the
Shares; (vii) the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees and expenses of counsel for
the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); and (viii) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company and the Selling Stockholders.
12. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, as Representatives of the several Underwriters, by notifying the Company
and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Underwriters are obligated
to purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule II hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Smith Barney Inc. to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
-38-
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company 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. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule II hereto who, with your approval
and the approval of the Company, purchases Shares which a defaulting Underwriter
is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by fax, telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited, (ii) trading in
the Class A Common Stock on the Nasdaq National Market shall have been suspended
or materially limited, (iii) a general moratorium on commercial banking
activities in New York or Maryland shall have been declared by either federal or
state authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by fax.,
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
14. Information Furnished by the Underwriters. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first, third and seventh paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus
constitute the only information
-39-
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and
13 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 2000 West 41st Street, Baltimore, Maryland 21211, Attention: David D.
Smith, President, with a copy to Thomas & Libowitz, P.A., 100 Light Street,
Suite 1100, Baltimore, Maryland 21202, Attention: Steven A. Thomas, Esq., with a
copy to Wilmer, Cutler & Pickering, 2445 M Street, Washington, D.C. 20037,
Attention: John B. Watkins, Esq.; (ii) if to the Selling Stockholders, c/o
Sinclair Broadcast Group, Inc., 2000 West 41st Street, Baltimore, Maryland
21211, Attention: David D. Smith, with a copy to Thomas & Libowitz, USF&G Tower,
100 Light Street, Suite 100, Baltimore, MD 21202, Attention: Steven A. Thomas,
Esq.; or (iii) if to you, as Representatives of the several Underwriters, c/o
Smith Barney Inc., 388 Greenwich Street, New York, New York 10013, Attention:
Manager, Investment Banking Division, with a copy to Fried, Frank, Harris,
Shriver & Jacobson, One New York Plaza, New York, New York 10004, Attention:
Valerie Ford Jacob, Esq.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof and the Selling Stockholders
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-40-
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
SINCLAIR BROADCAST GROUP, INC.
By: /s/ David B. Amy
-------------------------------
Name: David B. Amy
Title: Chief Financial Officer
David D. Smith
By:/s/ David B. Amy
-------------------------------
Name: David B. Amy
Attorney-in-Fact
Robert E. Smith
By:/s/ David B. Amy
-------------------------------
Name: David B. Amy
Attorney-in-Fact
Frederick G. Smith
By:/s/ David B. Amy
-------------------------------
Name: David B. Amy
Attorney-in-Fact
J. Duncan Smith
By:/s/ David B. Amy
-------------------------------
Name: David B. Amy
Attorney-in-Fact
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Robert E. Smith, Trustee
for the Robert & Melissa Smith
Charitable Remainder Unitrust No. 2
By: /s/ David B. Amy
-------------------------------
Name: David B. Amy
Attorney-in-Fact
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
SMITH BARNEY INC.
BT ALEX. BROWN INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
CHASE SECURITIES INC.
FURMAN SELZ LLC
As Representatives of the several Underwriters
By SMITH BARNEY INC.
By:/s/ Michael E. Anderson
------------------------------
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SCHEDULE I
SINCLAIR BROADCAST GROUP, INC.
Number of Firm Shares:
Selling Stockholder Class B Common Stock*
David D. Smith 325,000
Frederick G. Smith 325,000
J. Duncan Smith 325,000
Robert E. Smith 255,555
Robert E. Smith and Melissa Smith 69,445
Charitable Remainder Unitrust No. 2
Total: 1,300,000
* to be converted into shares of Class A Common Stock upon sale
Number of Additional Shares:
Selling Stockholder Class B Common Stock*
Frederick G. Smith 225,000
Robert E. Smith 155,555
Robert E. Smith and Melissa Smith 69,445
Charitable Remainder Unitrust No. 2
Total: 450,000
* to be converted into shares of Class A Common Stock upon sale
-1-
SCHEDULE II
SINCLAIR BROADCAST GROUP, INC.
Underwriter Number of Firm Shares
Smith Barney Inc. 824,000
BT Alex. Brown Incorporated 824,000
Credit Suisse First Boston Corporation 824,000
Salomon Brothers Inc 824,000
Chase Securities Inc. 302,000
Furman Selz LLC 302,000
Allen & Company Incorporated 100,000
Bear, Stearns & Co. Inc. 100,000
A.G. Edwards & Sons, Inc. 100,000
Goldman, Sachs & Co. 100,000
Legg Mason Wood Walker, Incorporated 100,000
Lehman Brothers Inc. 100,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 100,000
Montgomery Securities 100,000
Oppenheimer & Co., Inc. 100,000
Prudential Securities Incorporated 100,000
Schroeder & Co. Inc. 100,000
UBS Securities LLC 100,000
Wasserstein Perella Securities, Inc. 100,000
Wheat First Butcher Singer 100,000
------------------------
Total: 5,300,000
-2-
EXHIBIT A
SINCLAIR BROADCAST GROUP, INC.
Chesapeake Television, Inc.
Chesapeake Television Licensee, Inc.
Cresap Enterprises, Inc.
FSF-TV, Inc.
KABB Licensee, Inc.
KDNL Licensee, Inc.
KDSM, Inc.
KDSM Licensee, Inc.
KSMO, Inc.
KSMO Licensee, Inc.
KUPN Licensee, Inc.
SCI-Indiana Licensee, Inc.
SCI-Sacramento Licensee, Inc.
Sinclair Capital (Delaware statutory trust)
Sinclair Communications, Inc.
Sinclair Radio of Albuquerque, Inc.
Sinclair Radio of Albuquerque Licensee, Inc.
Sinclair Radio of Buffalo, Inc.
Sinclair Radio of Buffalo Licensee, Inc.
Sinclair Radio of Greenville, Inc.
Sinclair Radio of Greenville Licensee, Inc.
Sinclair Radio of Los Angeles, Inc.
Sinclair Radio of Los Angeles Licensee, Inc.
Sinclair Radio of Memphis, Inc.
Sinclair Radio of Memphis Licensee, Inc.
Sinclair Radio of Nashville, Inc.
Sinclair Radio of Nashville Licensee, Inc.
Sinclair Radio of New Orleans, Inc.
Sinclair Radio of New Orleans Licensee, Inc.
Sinclair Radio of St. Louis, Inc.
Sinclair Radio of St. Louis Licensee, Inc.
Sinclair Radio of Wilkes-Barre, Inc.
Sinclair Radio of Wilkes-Barre Licensee, Inc.
Sinclair Communications of Kentucky, Inc.
Sinclair Communications of Oklahoma, Inc.
Superior KY License Corp.
Superior OK License Corp.
-3-
Tuscaloosa Broadcasting, Inc.
WCGV, Inc.
WCGV Licensee, Inc.
WDBB, Inc.
WLFL, Inc.
WLFL Licensee, Inc.
WLOS Licensee, Inc.
WPGH, Inc.
WPGH Licensee, Inc.
WSMH, Inc.
WSMH Licensee, Inc.
WSTR, Inc.
WSTR Licensee, Inc.
WSYX, Inc.
WTTE, Channel 28, Inc.
WTTE, Channel 28 Licensee, Inc.
WTTO, Inc.
WTTO Licensee, Inc.
WTVZ, Inc.
WTVZ Licensee, Inc.
WYZZ, Inc.
WYZZ Licensee, Inc.
-4-