EXHIBIT 1.1
Heftel Broadcasting Corporation
[Form of]
Underwriting Agreement
[for Equity Securities]
[To be revised according to New York, New York
the type of Security offered.] , 19
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Heftel Broadcasting Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of shares of Class A Common Stock, $.001 par value,
("Common Stock"), set forth in Schedule I hereto (the "Securities") of the
Company, and the person[s] named in Schedule II hereto [(the "Selling
Stockholder[s]")] propose[s] to sell to the Underwriters the shares of Common
Stock indicated on Schedule II (said shares to be issued and sold by the Company
and shares to be sold by the Selling Stockholder[s] collectively being
hereinafter called the "Underwritten Securities"). The [Company] [and
the][Selling Stockholder] [Selling Stockholders named in Schedule II hereto]
also propose[s] to grant to the Underwriters an option to purchase up to the
number of additional shares of Common Stock indicated on Schedule II (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities")]. The Selling
Stockholders have executed Custody Agreements (the "Custody Agreements") and
certain of them have executed Powers of Attorney, the forms of which have been
previously delivered to you, pursuant to which the Selling Stockholders have
placed their respective Selling Shareholder Shares in custody with the Company
and agreed to take certain other actions with respect thereto and hereto. If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms. To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the
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terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
1. REPRESENTATIONS AND WARRANTIES. [(i)] The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in Section 16
hereof.
(a) The Company meets the requirements for the use of Form S-3 under
the Act and has filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b), (y)
prior to the Effective Date of such registration statement, an amendment to
such registration statement, including the form of final prospectus
supplement, or (z) a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), [and on any
date on which shares sold in respect of the Underwriters' over-allotment
option are purchased, if such date is not the Closing Date (a "Settlement
Date"),] the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; on the Effective Date and
at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date [and
any Settlement Date], the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in
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reliance upon and in conformity with information furnished herein or in
writing to the Company by or on behalf of any Underwriter through the
Representatives [or the Selling Stockholder[s]] specifically for inclusion
in the Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; each of the subsidiaries of
the Company as listed on Schedule III hereto (collectively, the
"Subsidiaries") has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its organization, with power
and authority to own or lease its properties and conduct its business as
described in the Final Prospectus; the Company and each of the
Subsidiaries are duly qualified to transact business in all jurisdictions
in which the conduct of their business requires such qualification and a
failure to qualify would have a materially adverse effect upon the business
or financial condition of the Company and the Subsidiaries taken as a
whole; except as set forth on Schedule III hereto, or as described in the
Final Prospectus, the outstanding shares of capital stock or partnership
interests of each of the Subsidiaries owned by the Company or a Subsidiary
have been, in the case of capital stock, duly authorized and validly
issued, are fully paid and nonassessable and, in the case of partnership
interests, have been duly authorized and validly issued and paid for, and
in each case are owned by the Company or another subsidiary free and clear
of all liens, encumbrances and security interests and no options, warrants
or other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock or
ownership interests in the Subsidiaries are outstanding.
(d) The authorized shares of Common Stock of the Company have been
duly authorized. The outstanding shares of Common Stock of the Company
have been duly authorized and are validly issued, fully-paid and
non-assessable.
(e) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(f) The information set forth under the caption "Capitalization" in
the Final Prospectus is true and correct. The Securities conform in all
material respects with the statements concerning them in the Final
Prospectus.
(g) The Commission has not issued an order preventing or suspending
the use of any Basis Prospectus, Preliminary Final Prospectus or Final
Prospectus relating to the proposed offering of the Securities nor
instituted proceedings for that purpose.
(h) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules incorporated by
reference in the Final Prospectus present fairly the financial position and
the results of operations of the Company and its subsidiaries consolidated,
at the indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results
for such periods have been made. The selected and summary financial and
statistical data included in the Final Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
the financial statements
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incorporated by reference therein and the books and records of the Company.
The pro forma financial information included in the Final Prospectus present
fairly the information shown therein, have been properly compiled on the
pro forma bases 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.
(i) Except for those license renewal applications of the Company or
its Subsidiaries currently pending before the Federal Communications
Commission (the "FCC"), a description of which is set forth on Schedule III
hereto or as set forth in the Final Prospectus there is no action or
proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of the Subsidiaries before any court or administrative
agency which could reasonably be likely to result in any material adverse
change in the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) of the Company and of the
Subsidiaries (taken as a whole).
(j) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial statements
hereinabove described (or as described in the Final Prospectus) subject to
no material lien, mortgage, pledge, charge or encumbrance of any kind,
except those reflected in such financial statements or as described in the
Final Prospectus or set forth on Schedule III. The Company and the
Subsidiaries occupy their leased properties under valid leases with such
exceptions as are not material to the Company and the Subsidiaries taken as
a whole and do not materially interfere with the use made and proposed to
be made of such properties by the Company and the Subsidiaries.
(k) The Company and the Subsidiaries have filed all Federal, State
and foreign income tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments received
by them or any of them to the extent that such taxes have become due and
are not being contested in good faith. The Company has no knowledge of any
tax deficiency that has been or might be asserted against the Company.
(l) Since the last date as of which information is given in the Final
Prospectus, as it may be amended or supplemented, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise)
or business prospects of the Company and its Subsidiaries (taken as a
whole), whether or not occurring in the ordinary course of business, other
than general economic and industry conditions changes in the ordinary
course of business and changes or transactions described or contemplated in
the Final Prospectus and there has not been any material definitive
agreement entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and
transactions contemplated by the Final Prospectus, as it may be amended or
supplemented. None of the Company or the Subsidiaries have any material
contingent obligations which are not disclosed in the Final Prospectus, as
it may be amended or supplemented.
(m) Neither the Company nor any of the Subsidiaries is or with the
giving of notice or lapse of time or both, will be in default under its
certificate or articles of incorporation, by-laws or partnership agreement
or any agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it, or any of its properties,
is bound and which default is of material significance in respect
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of the business or financial condition of the Company and its Subsidiaries
(taken as a whole). The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other material agreement or instrument to which
the Company or any Subsidiary is a party, or of the certificate or
articles of incorporation, by-laws or partnership agreement of the Company
or any order, rule or regulation applicable to the Company or any
Subsidiary, or of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction, except in all cases
a conflict, breach or default which would not have a materially adverse
effect on the business or financial condition of the Company and the
Subsidiaries (taken as a whole).
(n) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. or the Nasdaq National
Market ("Nasdaq") or may be necessary to qualify the Securities for public
offering by the Underwriters under State securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
(o) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities, including
without limitation, the FCC, which are necessary to the conduct of their
businesses; and neither the Company nor any of the Subsidiaries has
received notice of any infringement of any material patents, patent rights,
trade names, trademarks or copyrights, which infringement is material to
the business of the Company and the Subsidiaries (taken as a whole).
(p) Ernst & Young LLP, KPMG Peat Marwick LLP and Miller, Kaplan,
Arase & Co., each of whom have certified certain of the financial
statements incorporated by reference in the Final Prospectus, are to the
knowledge of the Company independent public accountants as required by the
Act and the Rules and Regulations.
(q) To the Company's knowledge, there are no affiliations or
associations between any member of the National Association of Securities
Dealers and any of the Company's officers, directors or 5% or greater
security holders except as otherwise disclosed in writing to __________
[name of lead manager].
(r) Neither the Company nor any Subsidiary is an "investment company"
within the meaning of such term under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
(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.
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(t) The Company and each of its Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar
industries.
(u) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) for which the Company would have any liability has occurred and is
continuing; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(v) The information set forth in the Final Prospectus under the
caption "Recent Developments" is true and correct in all material respects.
[(ii) [The] [Each] Selling Stockholder represents and warrants to,
and agrees with, each Underwriter that:
(a) [The] [Such] Selling Stockholder is the lawful owner of the
Securities to be sold by [the] [such] Selling Stockholder hereunder and
upon sale and delivery of, and payment for, such Securities, as provided
herein, [the] [such] Selling Stockholder will convey good and marketable
title to such Securities, free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) [Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of
the Company contained herein or the information contained in the Final
Prospectus and documents incorporated therein by reference, such Selling
Stockholder is familiar with the Final Prospectus and has no actual
knowledge of any material fact not disclosed in the Final Prospectus or the
documents incorporated therein by reference which has materially adversely
affected or may materially adversely affect the operations, assets or
business of the Company.] [[The] [Such] Selling Stockholder has no reason
to believe that the representations and warranties of the Company contained
in this Section 1 are not true and correct, is familiar with the
Registration Statement and has no knowledge of any material fact, condition
or information not disclosed in the Prospectus or any supplement thereto
which has adversely affected or may adversely affect the business of the
Company or any of its subsidiaries; and the sale of Securities by [the]
[such] Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of its subsidiaries which is not
set forth in the Prospectus or any supplement thereto.]
(c) [The] [Such] Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
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(d) [Certificates in negotiable form for [the] [such] Selling
Stockholder's Securities have been placed in custody, for delivery pursuant
to the terms of this Agreement, under a Custody Agreement [duly
authorized,] executed and delivered by such Selling Stockholder[s].
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals
as have been obtained.
(f) Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms
hereof by such Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under any law or [the charter or
by-laws of such Selling Stockholder or] the terms of any indenture or other
agreement or instrument to which such Selling Stockholder [or any of its
subsidiaries] is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder [or any of its subsidiaries] of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder [or any of its
subsidiaries].
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed solely to be a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. [(a)] Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company [agrees] [and the Selling Stockholder[s] (collectively, the "Sellers"
and individually a "Seller") agree, severally and not jointly,] to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company [Sellers], at the purchase price per share set forth on
Schedule I the number of shares set forth on Schedule I set forth opposite such
Underwriter's name in Schedule II hereto. [The amount of Securities to be
purchased by each Underwriter from each Seller shall be as nearly as practicable
in the same proportion to the total amount of Securities to be purchased by such
Underwriter as the total amount of Securities to be sold by each Seller bears to
the total amount of Securities to be sold pursuant hereto.]
[(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company [and the Selling
Stockholders] hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to the number of shares of Option Securities set
forth on Schedule I at the same purchase price per share as the Underwriters
shall pay for the Underwritten Securities. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Final
Prospectus upon written or telegraphic notice by the Representatives to the
Company setting forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the settlement date.
Delivery of certificates for the shares of Option Securities, and payment
therefor, shall be made as provided in Section 3 hereof. The number of shares
of the Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject
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to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.]
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
[Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date)] shall be made on the date and at the time
specified in Schedule I hereto (or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate), which date and time may be postponed by agreement between [among]
the Representatives [,] and the Company [and the Selling Stockholder[s]] or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof [respective aggregate purchase
prices of the Securities being sold by the Company and [each of] the Selling
Stockholder[s]] to or upon the order of the Company [and the Selling
Stockholders] by wire transfer payable in same-day funds to an account specified
by the Company. Delivery of the [Underwritten Securities and the Option]
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
[[The] [Each] Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Securities to be purchased by them from [the] [such] Selling Stockholder and
the respective Underwriters will pay any additional stock transfer taxes
involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Closing Date, the [Company][and the][Selling
Stockholder] [Selling Stockholders named in Schedule I hereto] will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
[Company] [and the][Selling Stockholder] [Selling Stockholder[s] identified in
Schedule I] by wire transfer payable in same-day funds to an account specified
by the [Company][and the][Selling Stockholder][Selling Stockholders named in
Schedule I hereto]. If settlement for the Option Securities occurs after the
Closing Date, [the Company] [and][Selling Stockholder] [such Selling
Stockholders] will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 5 hereof.]
4. AGREEMENTS. [(i)] The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object in writing. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
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filing. The Company will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b)
or when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or of
any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its reasonable efforts to prevent the
issuance of any such stop order or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement or, if appropriate, a filing under the Exchange Act, which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering, provided that the Company will not be
required to file a consent to service of process in any state in which it
is not qualified or for which consent has not been given.
(f) The Company will not, without the prior written consent of
_______ [name of lead manager], offer, sell, contract to sell, pledge or
otherwise dispose of, or file a registration statement with the Commission
in respect of, or establish or increase a put
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equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act with respect to, any
shares of capital stock of the Company or any securities convertible into
or exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction, for a period of
[ ] days after the date of this Agreement, other than (i) any shares of
Common Stock to be sold hereunder, (ii) any option or warrant or the
conversion of a security outstanding on the date hereof and (iii) the issue
and sale of shares of Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company in
effect on the date hereof and the issue of shares of Common Stock issuable
upon the conversion of securities or the exercise of warrants outstanding
on the date hereof.
[(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not, without the prior written
consent of _______ [name of lead underwriter], offer, sell, contract to
sell, pledge or otherwise dispose of, or file a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of [ ] days after
the date of this Agreement, other than (i) any shares of Common Stock to be
sold hereunder, (ii) any option or warrant or the conversion of a security
outstanding on the date hereof, (iii) any shares of Common Stock disposed
of as bona fide gifts approved by _____ [name of lead underwriter] and
(iv) any shares of Common Stock subject to margin accounts identified on
Schedule III.
[(b) Such Selling Stockholder will comply with its agreement contained
in Section (1)(ii)(b).
(c) 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.
(d) 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(a)(iv) hereof, of any change in the Company's
condition (financial or otherwise), prospects, earnings, business or
properties 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
that suggests that any statement made in the Registration Statement or the
Prospectus (as then amended or supplemented, if amended or supplemented) is
or may be untrue in any material respect or that the Registration Statement
or Prospectus (as then amended or supplemented, if amended or supplemented)
omits or may omit to state a material fact or a fact necessary to be stated
therein in order to make the statements therein not misleading in any
material respect, or of the necessity to amend or supplement the Prospectus
(as then amended or supplemented, if amended or supplemented) in order to
comply with the Act or any other law.]]
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the [Underwritten] Securities [and
the Option Securities, as the case may be,] shall be subject to the accuracy of
the representations and warranties on the part of the Company [and the Selling
Stockholders[s]] contained herein as of the Execution Time [,] and the Closing
Date [and any settlement date pursuant to Section 3 hereof], to the accuracy of
the state-
11
ments of the Company made in any certificates pursuant to the provisions hereof,
to the performance by the Company of its [and the Selling Stockholder[s] of
their respective] obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and 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 threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Akin, Gump. Strauss, Hauer & Feld, L.L.P., counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of the Company, _____ and _____ [list material
subsidiaries and partnerships] (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus or in a schedule attached to such opinion, all
outstanding shares of capital stock of the Subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests, claims,
liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the description of the capital stock of
the Company conforms in all material aspects to the description
thereof contained in the Final Prospectus; the outstanding shares of
Common Stock [(including the Securities being sold hereunder by the
Selling Stockholder[s])] have been duly and validly authorized and
issued and are fully paid and nonassessable; the Securities [being
sold hereunder by the Company] have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities being sold hereunder by the Company [and the Selling
Stockholder[s]] are duly authorized for listing, subject to official
notice of issuance, on the Nasdaq National Market ("Nasdaq"); the
certificates for the Securities are in valid and sufficient form; and
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities[; and, except as set forth in the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding].
12
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Final Prospectus which is not adequately disclosed in
the Final Prospectus, to the knowledge of such counsel, and there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and, to the knowledge of such counsel, the statements
included or incorporated in the Final Prospectus heading[s] " ",
" " and " " [if the Prospectus contains a discussion of specific
legal or regulatory matters or proceedings, add references to
appropriate sections of the Prospectus] fairly summarize such matters;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its subsidiaries
pursuant to, (i) the charter or by-laws of the Company or its
subsidiaries, or (ii) to such counsel's knowledge, the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument and to which the Company or its subsidiaries is a party or
bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree known to such counsel to
be applicable to the Company or its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or its
subsidiaries or any of its or their
13
properties, except for such as would not have a material adverse effect
on the Company and its subsidiaries taken as a whole; and
(x) except as set forth on Schedule III attached hereto, which
rights have been waived or satisfied, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
In addition, such counsel shall also state that they have no reason to
believe that on the Effective Date or at the Execution Time the
Registration Statement contains or contained any untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Final Prospectus as of its date and on the Closing Date
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (in
each case, other than the financial statements and other financial
information contained therein, as to which such counsel need express no
opinion with respect to such statement, such counsel may state that their
belief is based upon the procedures set forth therein, but is without
independent verification).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Texas, the State of Delaware or the Federal laws of the United States,
to the extent deemed proper and specified in such opinion, upon the opinion
of other counsel of good standing believed to be reliable and who are
reasonably satisfactory to counsel for the Underwriters and (B) as to
matters of fact, on certificates or other written statements of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
[(c) The Selling Stockholder[s] shall have furnished to the
Representatives the opinion of
, counsel for the Selling Stockholder[s],
dated the Closing Date, to the effect that:
(i) this Agreement [, the Custody Agreement and the
Power-of-Attorney] has [have] been duly [authorized,] executed and
delivered by the Selling Stockholder[s] [, the Custody Agreement is
valid and binding on the Selling Stockholders] and [the] [each] Selling
Stockholder has full legal right and authority to sell, transfer and
deliver in the manner provided in this Agreement [and the Custody
Agreement] the Securities being sold by [the] [such] Selling
Stockholder hereunder;
(ii) the delivery by [the] [each] Selling Stockholder to the
several Underwriters of certificates for the Securities being sold
hereunder by [the] [such] Selling Stockholder against payment therefor
as provided herein, will pass good and marketable title to such
Securities to the several Underwriters, free and clear of all liens,
encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by
[the] [any] Selling Stockholder of the transactions contemplated
herein, except such as may have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained; and
14
[(iv) neither the sale of the Securities being sold by [the]
[any] Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by [the] [any] Selling Stockholder or
the fulfillment of the terms hereof by [the] [any] Selling Stockholder
will conflict with, result in a breach or violation of, or constitute
a default under any law or [the charter or By-laws of the Selling
Stockholder or] the terms of any indenture or other agreement or
instrument known to such counsel and to which [the] [any] Selling
Stockholder [or any of its subsidiaries] is a party or bound, or any
judgment, order or decree known to such counsel to be applicable to
[the] [any] Selling Stockholder [or any of its subsidiaries] of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over [the] [any] Selling Stockholder
[or any of its subsidiaries].]
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Texas, the State of Delaware or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters, and (B) as to
matters of fact, to the extent they deem proper, on certificates of
[responsible officers of] the Selling Stockholder[s] and public officials.]
(c) [(d)] The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company [and [the] [each] Selling
Stockholder] shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) [(e)] The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
[(f) [The] [Each] Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the [Chairman of the Board or the
President and the principal
15
financial or accounting officer of] [the] [such] Selling Stockholder, dated
the Closing Date, to the effect that [the signer[s] of such certificate have
carefully examined the Registration Statement the Prospectus, any supplement
to the Prospectus and this Agreement and that] the representations and
warranties of [the] [such] Selling Stockholder in this Agreement are true
and correct in all material respects on and as of the Closing Date to the
same effect as if made on the Closing Date.]
(e)[(g)] At the Execution Time and at the Closing Date, Ernst & Young
LLP, KPMG Peat Marwick LLP [and Miller, Kaplan, Arase & Co.] shall have
furnished to the Representatives letters dated as of the Execution Time and
the Closing Date, in form and substance satisfactory to the
Representatives.
(f)[(h)] Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting materially
adversely the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
[(i) On or prior to the Execution Time, Nasdaq shall have approved the
Underwriters' participation in the distribution of the Securities to be
sold by the Selling Stockholder[s].]
[(g)[(j)] At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto
from [each officer and director of the Company and [major stockholders]]
addressed to the Representatives.]
(h)[(k)] The Company shall have caused the Securities to be eligible
for trading on Nasdaq upon issuance.
(i)[(l)] Except as agreed to by [name of lead manager],
subsequent to the Execution Time, there shall not have been any decrease in
the rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purpose of
Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(j)[(m)] The Underwriters hall have received on the Closing Date the
opinion of Cohn and Marks, special FCC counsel to the Company, dated the
Closing Date, addressed to the Underwriters as is reasonably acceptable to
the Underwriters.
(k) [(n)] Prior to the Closing Date, the Company [and [the] [each]
Selling Stockholder] shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
16
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancelation shall be
given to the Company [and [the] [each] Selling Stockholder] in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on
the Closing Date.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company [or [the]
[any] Selling Stockholder] to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
_______ [name of lead manager] on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale
of the Securities, but the Company shall not be liable in any event to any of
the Underwriters for damages on account of loss of anticipated profits from
the sale of the Securities. [If the Company is required to make any payments
to the Underwriters under this Section 6 because of [the] [any] Selling
Stockholder's refusal, inability or failure to satisfy any condition to the
obligations of the Underwriters set forth in Section 5, [the Selling
Stockholder] [the Selling Stockholders pro rata in proportion to the percentage
of Securities to be sold by each] shall reimburse the Company on demand for all
amounts so paid.]
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as reasonably incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that with respect to any untrue statement or omission of material
fact made in any Preliminary Prospectus, the indemnity agreement contained in
this Section 7(a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstance where (w) the
Company had previously furnished copies of the Final Prospectus to the
Representatives, (x) delivery of the Final Prospectus was required by the Act
to be made to such person, (y) the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in the
Preliminary Prospectus was corrected in the Final Prospectus and (z) there
was not sent or given to such person, at or prior to the written confirmation
of the sale of such securities to such person, a copy of the Final
Prospectus. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
17
[(b) [The] [Each] Selling Stockholder [severally and not jointly] agrees
to indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls the Company or any Underwriter within the meaning of either the
Act or the Exchange Act [and each other Selling Stockholder] to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information furnished to the Company by or on
behalf of [the] [such] Selling Stockholder specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which [the] [any]
Selling Stockholder may otherwise have.] [In no event, however, shall the
liability of a Selling Stockholder for indemnification under this Section 7(b)
exceed the lesser of (i) that proportion of the total losses, claims, damages
or liabilities indemnified against equal to the proportion of total Securities
sold hereunder which is sold by such Selling Stockholder and (ii) the proceeds
received by such Selling Stockholder from the Underwriters in the Offering.
This indemnity agreement will be in addition to any liability which such Selling
Stockholder may otherwise have.]
(b) [(c)] Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act [and [the] [each] Selling
Stockholder], to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges [and [the] [each] Selling Stockholder[s]
acknowledge[s]] that the statements set forth in the [last] paragraph of the
cover page regarding delivery of the Securities, the stabilization legends in
block capital letters on page [S-2] and page [2] and, under the heading
"Underwriting" or "Plan of Distribution", (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to stabilization
in any Preliminary Final Prospectus or the Final Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity.
(c) [(d)] Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) [(a), (b) or (c)] above unless and to the extent it did not otherwise
learn of such action and such failure results in the prejudice by the
indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) [(a), (b) or (c)]above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ one separate
counsel (and, if reasonably necessary, one additional local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of interest, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the
18
institution of such action or, (iii) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) [(e)] In the event that the indemnity provided in paragraph
[(a), (b) or (c)] (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the
Company[, the Selling Stockholder[s]] and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
[, [one or more of] the Selling Stockholder[s]] and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company [, by the Selling Stockholder[s]
] and by the Underwriters from the offering of the Securities; PROVIDED,
HOWEVER, that in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company [, the Selling Stockholder[s]] and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company [, of the Selling Stockholders] and of the Underwriters in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company
[and by the Selling Stockholder[s]] shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it
[each of them], and benefits received by the Underwriters shall be deemed to
be equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company [, the Selling Stockholder[s]] on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company [, the Selling Stockholder[s]] and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d)[(e)], 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. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d)[(e)]. [In no event, however, shall
the liability of a Selling Stockholder for indemnification under this Section
7(d) exceed the lesser of (i) that proportion of the total losses, claims,
damages or liabilities indemnified against equal to the proportion of total
Securities sold hereunder which is sold by such Selling Stockholder and (ii)
the proceeds received by such Selling Stockholder from the Underwriters in the
Offering. This indemnity agreement will be in addition to any liability which
such Selling Stockholder may otherwise have.]
19
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay within 24 hours for (in the respective
proportions which the amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
PROVIDED, HOWEVER, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to
purchase within 24 hours all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do
not purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter [, the Selling Stockholder[s]] or
the Company. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter
of its liability, if any, to the Company [, the Selling Stockholder[s]] and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the Nasdaq or trading in securities generally
on the New York Stock Exchange or Nasdaq shall have been suspended or limited
or minimum prices shall have been established on either of such Exchange or
National Market, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the reasonable judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers [, of [the] [each] Selling Stockholder] and of
the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter [, [the] [each] Selling Stockholder] or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed or delivered to __________, attention of the general counsel or, if
sent to the Company, will be mailed or delivered to 100 Crescent Court, Suite
1777, Dallas, TX 75201, attention of the General Counsel, or faxed to (214)
855-8882 and confirmed to it at (214) - , attention of the Secretary
[; or if sent to the Selling Stockholder[s], will be mailed or delivered and
confirmed to it [him] [her] [them] at the address[es] set forth in Schedule I
hereto].
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling
20
persons referred to in Section 7 hereof, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Securities merely because of such purchase.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. HEADINGS. The Section headings used herein are for convenience
only and shall not affect the construction hereof.
16. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including, any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Dallas, Texas.
"Commission" means the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
21
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement.
"Rules and Regulations" means the rules and regulations of the
Commission.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Heftel Broadcasting Corporation
By:
------------------------------
Name:
Title:]
[Selling Stockholder[s]]
[By:
-----------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Names of Representatives]
By: [Name of Lead Manager]
By:
----------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
22
SCHEDULE I
Underwriting Agreement dated , 199
Registration Statement No. 333-
Representative(s):
Underwriters:
Title, Purchase Price and Description of Securities:
Title:
Number of Shares to be sold by the Company:
Price to Public per Share (include accrued dividends, if any):
Price to Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total:
Proceeds to Company per Share:
Proceeds to Company -- total:
Over-allotment Option:
Number of Underwritten Securities and Maximum Number of Option Securities
to be Sold by each Selling Stockholder:
Maximum
SELLING STOCKHOLDER Underwritten Securities Number of Option Securities
------------------- ----------------------- ---------------------------
[Name]
[Address, Fax]
[Name]
[Address, Fax]
Other provisions:
Closing Date, Time and Location: , 199 at 10:00 a.m. at Cravath, Swaine
& Moore, Worldwide Plaza, 825 Eighth Ave., New York, NY 10019
Type of Offering: Non-delayed
Date referred to in Section 4(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from
the accountants delivered pursuant to
Section [5(e)] at the Execution Time:
23
SCHEDULE II
[Maximum
Number of
Options
Number of [Number of [Maximum Securities to
Underwritten Shares to be Number of Option be Purchased
Securities to be Purchased from Securities to be from the
Purchased from the Selling Purchased from Selling
Underwriters the Company Stockholders] the Company] Stockholders]
- ------------ ----------------- -------------- ----------------- -------------
----------------- -------------- ----------------- -------------
Total..........
----------------- -------------- ----------------- -------------
----------------- -------------- ----------------- -------------
24
SCHEDULE III
DISCLOSURE ITEMS
1. Material Subsidiaries:
2. Liens, Encumbrances and other disclosure relating to the Company's and its
Subsidiary capital stock:
[To Come]
3. Pending Renewal applications:
See attached schedule.
4. Shares subject to margin accounts:
25
EXHIBIT A
[Letterhead of officer, director or major shareholder of
Heftel Broadcasting Corporation]
HEFTEL BROADCASTING CORPORATION
PUBLIC OFFERING OF COMMON STOCK
, 19
[names of managers, if any]
As Representative[s] of the several Underwriters,
[address]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Heftel
Broadcasting Corporation, a Delaware corporation (the "Company"), and [each of]
you as representative[s] of a group of Underwriters named therein, relating to
an underwritten public offering of Common Stock, $ par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned or file a registration statement with
the Commission in respect of, or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act with respect to, any shares of capital stock of
the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or publicly announce an intention to effect any such
transaction, for a period of days after the date of this Agreement, other
than (i) any shares of Common Stock to be sold hereunder, (ii) any option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectus to which this Agreement relates, (iii) shares of
Common Stock disposed of as bona fide gifts approved by __________ [name of lead
manager] and (iv) any shares of Common Stock subject to margin accounts
identified on Schedule III of the Underwriting Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
shareholder]
[Name and address of officer, director or major
shareholder]