EXHIBIT 1.1
[ ] Shares
LIN TV CORP.
Class A Common Stock
($.01 Par Value Per Share)
EQUITY UNDERWRITING AGREEMENT
May [ ], 2002
Deutsche Bank Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
LIN TV Corp., a Delaware corporation (the "Company") proposes
to sell to the several underwriters (the "Underwriters") named in Schedule I
hereto for whom you are acting as representatives (the "Representatives") an
aggregate of [ ] shares (the "Firm Shares") of the Company's Class A Common
Stock, $.01 par value (the "Class A Common Stock"). The respective amounts of
the Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. The Company also proposes to sell at
the Underwriters' option an aggregate of up to [ ] additional shares of the
Company's Class A Common Stock (the "Option Shares") as set forth below. 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 the Underwriters, and
the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires.
As the Representatives, you have advised the Company (a) that
you are authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the numbers of
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Firm Shares set forth opposite their respective names in Schedule I, plus their
pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
Deutsche Bank Securities Inc. ("Deutsche Bank Securities") has
agreed to reserve up to [ ] of the Shares to be purchased by it under this
Agreement for sale to the Company's vendors, employees, family members of
employees, customers and other third parties related to the Company
(collectively, "Participants"), as set forth in the Prospectus (as defined
below) under the heading "Underwriting" (the "Directed Share Program"). The
Shares to be sold by Deutsche Bank Securities and its affiliates pursuant to the
Directed Share Program are referred to hereinafter as the "Directed Shares." Any
Directed Shares not orally confirmed for purchase by any Participants by 8:00
a.m. of the business day following the day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
The Company and Sunrise Television Corp., a Delaware
corporation ("Sunrise"), have entered into an Agreement and Plan of Merger dated
as of February 19, 2002, and amended as of March 29, 2002 (as so amended, the
"Merger Agreement"), pursuant to which Sunrise will be merged (the "Merger")
with and into the Company, with the Company continuing as the surviving
corporation. In connection with the Merger, Sunrise will dispose of its
television stations located in the North Dakota markets. In the event that
Sunrise is unable to complete the disposition of its North Dakota stations prior
to the consummation of the Merger, the exchange ratios under the Merger
Agreement will be adjusted. In connection with the Merger, certain affiliates of
▇▇▇▇▇, Muse ▇▇▇▇ & ▇▇▇▇▇ Incorporated ("HMTF") will acquire (i) 250,000 shares
of 14% Redeemable Preferred Stock, par value $.01 per share (the "STC Preferred
Stock"), of STC Broadcasting, Inc., a wholly owned subsidiary of Sunrise, and
(ii) a Senior Subordinated Promissory Note, dated December 30, 1999, in the
original principal amount of $21.7 million by Sunrise in favor of Hicks, Muse,
▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, L.P., as subsequently transferred to SA
Television, and a Senior Subordinated Promissory Note, dated December 30, 1999,
in the original principal amount of $750,617, by Sunrise in favor of HM3
Coinvestors, L.P. and subsequently transferred to SA Television (collectively,
the "Notes"). Pursuant to the terms of an Exchange Agreement, dated as of
February 19, 2002, between such affiliates of HMTF and the Company, such
affiliates of HMTF intend to exchange the STC Preferred Stock and the Notes for
shares of Class B Common Stock, par value $.01 per share (the "Class B Common
Stock"), of the Company. On the Closing Date (as defined below), the Company
will (i) terminate the Monitoring and Oversight Agreement, dated as of March 3,
1998, as amended, by and among the Company, certain subsidiaries of the Company
and Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Partners, L.P. ("HMCo") and (ii) enter into the
Amended and Restated Financial Advisory Agreement, dated as of the Closing Date,
by and among the Company, certain subsidiaries of the Company and HMCo, in each
case in exchange
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for a combination of cash, warrants to purchase Class B Common Stock of the
Company and the assignment of a note receivable. At or prior to the Closing
Date, the Company will amend its Certificate of Incorporation to effect a 1 for
21 reverse stock split and to create the Class C Common Stock, par value $.01
per share, of the Company. The Company will also receive approximately $60.4
million in cash from the redemption of its preferred equity interests in
Southwest Sports Group Holdings LLC, an affiliate of HMTF, by that entity. Also,
prior to the consummation of the Merger, the Company will obtain an amendment
and waiver to the Amended and Restated Credit Agreement, dated as of June 29,
2001, among LIN Television Corporation, the Guarantors named therein, JPMorgan
Chase Bank (formerly The Chase Manhattan Bank), as administrative Agent, and the
other lenders party thereto, as amended, supplemented, modified, extended or
restated from time to time (including the related guarantees and security
documents, the "Credit Agreement"). The foregoing transactions, together with
the offering of the Shares contemplated by this Agreement, are collectively
referred to herein as the "Transactions."
In consideration of the mutual agreements contained herein and
of the interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to each of the
Underwriters (both before and after giving effect to the Transactions) as
follows:
(i) A registration statement on Form S-1 (File No. 333-83068)
with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. The
Company and the transactions contemplated by this Agreement meet the
requirements and comply with the conditions for the use of Form S-1.
Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. Such registration
statement, together with any registration statement filed by the
Company pursuant to Rule 462(b) of the Act, is herein referred to as
the "Registration Statement," which shall be deemed to include all
information omitted therefrom in reliance upon Rule 430A of the Act and
contained in the Prospectus referred to below, has become effective
under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. "Prospectus"
means the form of prospectus first filed with the Commission pursuant
to Rule 424(b) of the Act. Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus." Any reference herein to any
Prospectus shall be deemed to include any supplements or
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amendments thereto, filed with the Commission after the date of filing
of the Prospectus under Rules 424(b) or 430A of the Act, and prior to
the termination of the offering of the Shares by the Underwriters.
(ii) The Registration Statement and any amendment thereto do
not contain, and will not contain, any untrue statement of a material
fact and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to
state any material fact required to be stated therein or necessary 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 representation or warranty as to information contained
in or omitted from the Preliminary Prospectus or the Prospectus in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the
Representatives relating to such Underwriter specifically for use in
the preparation thereof.
(iii) The Company and each of its subsidiaries have been duly
organized and are validly existing as organizations in good standing
under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(iv) The authorized capital stock of the Company consists of
5,000,000 shares of preferred stock, par value $0.01 per share,
100,000,000 shares of Class A Common Stock, par value $.01 per share,
50,000,000 shares of Class B Common Stock, par value $.01 per share and
50,000,000 shares of Class C Common Stock, par value $.01 per share
(collectively, the "Capital Stock"). All of the outstanding shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party (other than liens and
security interests created pursuant to the agreement governing the
Credit Agreement or any document or agreements contemplated thereby or
applicable law), and restrictions on transfer imposed by Federal
Communications Commission (the "FCC") requirements.
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(v) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
(vi) 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.
(vii) The outstanding shares of Capital Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company have
been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully paid and non-assessable; and no
preemptive rights of stockholders exist with respect to any of the
Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any shares of Class A Common Stock.
(viii) The Company's authorized equity capitalization is as
set forth in the Prospectus under the caption "Capitalization" as of
the date set forth therein. The Capital Stock, including the Shares, of
the Company conforms in all material respects to the description
thereof contained in the Prospectus. The form of certificates for the
Shares conforms to the corporate law of the jurisdiction of the
Company's incorporation.
(ix) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering
of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments
or supplements thereto will contain, all statements which are required
to be stated therein by, and will conform to, the requirements of the
Act and the Rules and Regulations.
(x) The Company and its subsidiaries have filed all Federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes indicated by such 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 and for
which an adequate reserve for accrual has been established in
accordance with generally accepted accounting principles, except where
the failure to make such filings and payments would not have a Material
Adverse Effect. All tax liabilities have been adequately provided for
in the financial statements of the Company, and the Company does not
know of any actual or proposed additional material tax assessments.
(xi) The execution, delivery and performance by the Company
and each of its subsidiaries of this Agreement, the issuance,
authentication, sale and delivery of the Shares
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by the Company and compliance by the Company with the terms thereof and
the consummation by the Company and each of its subsidiaries, as
applicable, of the transactions contemplated by this Agreement and the
other Transactions do not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any material indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for any such conflict, breach, violation, default,
lien, charge or encumbrance that could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect or any
material adverse effect on the ability of the Company to perform its
obligations under this Agreement; nor will such actions result in any
violation of the provisions of the certificate of incorporation or
by-laws or similar organizational documents of the Company or any of
its subsidiaries or any statute or any order, rule or regulation
(including, without limitation, the Communications Act of 1934, as
amended by the Telecommunications Act of 1996, the rules and
regulations of the FCC thereunder, and the written orders, policies,
and decisions of the FCC and the courts interpreting the above (the
"Communications Act")) of any court or arbitrator or governmental
agency or body (including, without limitation, the FCC) having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and, no consent, approval, authorization or
order of, or filing, registration or qualification with, any such court
or arbitrator or governmental agency or body (including, without
limitation, the FCC) is required for the execution, delivery and
performance by the Company of this Agreement, the offering, sale and
delivery by the Company of the Shares and compliance by the Company
with the terms thereof and the consummation by the Company of the
transactions contemplated by this Agreement and the other Transactions,
except for such consents, approvals, authorizations, orders, filings,
registrations or qualifications (i) which have been obtained or made
prior to the Closing Date, (ii) as may be required to be obtained or
made under applicable state Blue Sky or securities laws in connection
with the offering and sale of the Shares by the Underwriters and (iii)
that from time to time, the Company or any of its subsidiaries may be
required to obtain from or make with the FCC in the ordinary course of
business.
(xii) This Agreement and each of the Transactions conform in
all material respects to the description thereof contained in the
Prospectus.
(xiii) Each of the network affiliation agreements between the
broadcast television stations owned or operated by the Company or its
subsidiaries, on the one hand, and CBS Television Network, a division
of CBS Inc., NBC TV Network, a division of NBC, American Broadcasting
Companies, Inc., FOX Broadcasting Company, United Paramount Network or
WB Communications, on the other hand, have been duly authorized,
executed
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and delivered by the Company (or a wholly owned subsidiary thereof) and
constitute valid and legally binding agreements of the respective
parties thereto.
(xiv) The local marketing agreements between the Company or
its subsidiaries, on the one hand, and entities or persons listed on
Schedule II hereto, on the other hand, are a complete list of Company's
local marketing agreements, have been duly authorized, executed and
delivered by the Company (or a wholly owned subsidiary thereof) and
constitute valid and legally binding agreements of the respective
parties thereto.
(xv) (i) PricewaterhouseCoopers LLP are independent public
accountants with respect to the Company and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants and its interpretations and
rulings thereunder, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public
accountants with respect to Sunrise and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants and its interpretations and
rulings thereunder, and (iii) the financial statements (including the
related notes) contained in the Registration Statement have been
prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly
present, in all material respects, the financial condition and the
results of operations of the entities purported to be covered thereby
for the respective periods indicated except as otherwise disclosed
therein. The financial information contained in the Registration
Statement under the headings "Prospectus Summary--Summary Historical
and Pro Forma Consolidated Financial Data," "Capitalization,"
"Unaudited Pro Forma Financial Data," "Selected Consolidated Financial
Data," and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" are derived from the accounting records of
the entities purported to be covered thereby and fairly present the
information purported to be shown thereby. The historical and
statistical financial information and data included in the Registration
Statement and Prospectus fairly present, in all material respects, the
information purported to be shown thereby. The pro forma financial
statements and other pro forma financial information included in the
Registration Statement and the Prospectus present fairly the
information shown 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 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.
(xvi) There are no legal or governmental proceedings
(including, without limitation, before or by the FCC) pending to which
the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries or
affiliates is the subject which, singularly or in the aggregate, if
determined adversely to the Com-
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pany or any of its subsidiaries or affiliates, could reasonably be
expected to have a Material Adverse Effect; and to the best knowledge
of the Company, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xvii) No injunction, restraining order or order of any nature
by any federal or state court of competent jurisdiction has been issued
with respect to the Company or any of its subsidiaries which would
prevent or suspend the offering or sale of the Shares or the use of the
Preliminary Prospectus or the Prospectus in any jurisdiction; no
action, suit or proceeding is pending against or, to the best knowledge
of the Company, threatened against or affecting the Company or any of
its subsidiaries before any court or arbitrator or any governmental
agency, body or official, domestic or foreign, which could reasonably
be expected to interfere with or adversely affect the offering of the
Shares or in any manner draw into question the validity or
enforceability of any of this Agreement or any action taken or to be
taken pursuant thereto or any of the other Transactions.
(xviii) None of the Company or any of its subsidiaries is (i)
in violation of its charter or by-laws, (ii) in default in any respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject or (iii) in violation in any
respect of any applicable law, ordinance, court decree, governmental
rule or regulation (including, without limitation, the Communications
Act and the rules and regulations of the FCC thereunder) to which it or
its property or assets may be subject, as applicable, except in the
case of clauses (ii) and (iii) as could not, singly or in the
aggregate, be expected to have a Material Adverse Effect.
(xix) The Company and each of its subsidiaries possess all
material licenses, orders, certificates, authorizations, approvals and
permits issued by, and have made all declarations, applications,
reports, instruments, information and filings with, the appropriate
federal, state or foreign regulatory agencies or bodies (including,
without limitation, the FCC) that are necessary or desirable for the
ownership of their respective properties or the conduct of their
respective businesses as described in the Prospectus and such
declarations, applications, reports, instruments, information and
filings are true, correct and complete in all material respects, except
where the failure to possess or make the same would not, singularly or
in the aggregate, have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received notification of any
revocation or modification of any such license, certificate,
authorization or permit that is generally renewable in the ordinary
course or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course. The
licenses issued by the FCC with respect to the broadcast television
stations owned or operated by the Company (or subsidiaries thereof)
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(the "Licenses") are valid and in full force and effect with no
restrictions or qualifications (other than standard restrictions or
qualifications usually pertaining to similar licenses) that would,
singly or in the aggregate, have a Material Adverse Effect. No event
has occurred that permits, or with notice or lapse of time or both
would permit, and no legal governmental proceeding has been instituted
or threatened that could cause, the revocation or termination of any of
the Licenses or that might result in any other impairment or
modification of the rights of the Company or any of its subsidiaries
thereof that in any such case would, singly or in the aggregate, have a
Material Adverse Effect. The Company has no reason to believe that any
License issued by the FCC will not be renewed in the ordinary course.
(xx) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, an "investment company" as
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxi) The Company and each of its subsidiaries maintain a
system of internal accounting controls the Company believes is
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability,
(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 the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxii) The Company and each of its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, which insurance is in amounts and insures against such
losses and risks as are in the Company's opinion adequate to protect
the Company and its subsidiaries and their respective businesses. None
of the Company or any of its subsidiaries have received notice from any
insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue
such insurance.
(xxiii) Except in any case in which the failure to do so could
not reasonably be expected, singly or in the aggregate, to result in a
Material Adverse Effect, the Company and each of its subsidiaries own
or possess adequate rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses; and the
conduct of their respective businesses does not conflict in any
material respect with, and the Company and its subsidiaries have not
received any notice of any claim of conflict with, any such rights of
others.
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(xxiv) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real and personal property which are
material to the business of the Company and its subsidiaries, taken as
a whole, in each case free and clear of all liens, encumbrances and
defects other than (i) liens and encumbrances to be granted pursuant to
the Credit Agreement and (ii) liens, encumbrances and defects that do
not materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries or could not
reasonably be expected to have a Material Adverse Effect.
(xxv) No labor disturbance by or dispute with the employees of
the Company or any of its subsidiaries exists or, to the best knowledge
of the Company, is imminent, which could reasonably be expected to have
a Material Adverse Effect.
(xxvi) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release or
threatened release of any kind of toxic or other wastes or other
hazardous substances by, due to or caused by the Company or any of its
subsidiaries (or, to the best knowledge of the Company, any other
entity (including any predecessor) for whose acts or omissions the
Company or any of its subsidiaries are or could reasonably be expected
to be liable) upon any property now or previously owned or leased by
the Company or any of its subsidiaries, or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability except for any
violation or liability which would not have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse
Effect; and there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of
any kind which would not have, singularly or in the aggregate with all
such other disposals, discharges, emissions and other releases, a
Material Adverse Effect.
(xxvii) No "prohibited transaction" (as defined in Section 406
of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of
the Company or any its subsidiaries which could reasonably be expected
to have a Material Adverse Effect; each such employee benefit plan is
in compliance in all material respects with applicable law, including
ERISA and the Code; the Company and each of its
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subsidiaries have not incurred and do not expect to incur liability
under Title IV of ERISA with respect to the termination of, or
withdrawal from, any pension plan for which the Company or any of its
subsidiaries would have any liability; and each such pension plan 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 could reasonably be expected to
cause the loss of such qualification.
(xxviii) Except as described in the Prospectus, there are no
outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of,
any shares of capital stock of or other equity or other ownership
interest in the Company or any of its subsidiaries.
(xxix) The statistical and market-related data included in the
Prospectus are based on or derived from sources which the Company
believes to be reliable and accurate.
(xxx) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective
material adverse change in the condition (financial or otherwise),
results of operations, business or prospects of the Company and it
subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) none of the Company, nor any of its
subsidiaries has incurred any liability or obligation, direct or
indirect, absolute or contingent, other than in the ordinary course of
business, which would, singly or in the aggregate, have a Material
Adverse Effect, (iii) neither any of the Company nor any of its
subsidiaries has entered into any material transaction other than in
the ordinary course of business and (iv) there has not been any change
in the capital stock or long-term debt of any of the Company or any of
its subsidiaries, or any dividend or distribution of any kind declared,
paid or made by any of Company or any of its subsidiaries on any class
of its capital stock.
(xxxi) Neither the Company, nor to the best knowledge of the
Company, any of its affiliates, has taken or may take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Class A
Common Stock to facilitate the sale or resale of the Shares. The
Company acknowledges that the Underwriters may engage in passive market
making transactions in the Shares on the New York Stock Exchange in
accordance with Regulation M under the Exchange Act.
(xxxii) To the best knowledge of the Company, there are no
affiliations or associations between any Underwriter and any of the
Company's officers, directors or 5% or greater securityholders that are
required to be described in the Registration Statement pur-
-12-
suant to the Securities Act or the National Association of Securities
Dealers, Inc. (the "NASD"), except as set forth in the Registration
Statement.
(xxxiii) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency (including, without
limitation, the FCC), other than those obtained, is required in
connection with the offering of the Directed Shares in any jurisdiction
where the Directed Shares are being offered.
(xxxiv) The Company has not offered, or caused Deutsche Bank
Securities or its affiliates to offer, Shares to any person pursuant to
the Directed Share Program with the specific intent to unlawfully
influence (i) a customer or supplier of the Company to alter the
customer's or supplier's level or type of business with the Company, or
(ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
2. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $[ ] per share, the number
of Firm Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be
made in Federal (same day) funds against delivery of certificates therefor to
the Representatives for the several accounts of the Underwriters. Such payment
and delivery are to be made through the facilities of The Depository Trust
Company, New York, New York at 10:00 a.m., New York time, on the [third]
business day after the date of this Agreement or at such other time and date not
later than five business days thereafter as you and the Company shall agree
upon, such time and date being herein referred to as the "Closing Date." (As
used herein, "business day" means a day on which the New York Stock Exchange is
open for trading and on which banks in New York are open for business and are
not permitted by law or executive order to be closed.)
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in whole
or in part by giving written notice (i) at any time before the Closing Date and
(ii) only once thereafter within 30 days after the date of this Agreement, by
you, as Representatives of the several Underwriters, to the Company setting
forth the number of Option Shares as to which the several Underwriters are
exercising the option and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares are to be
delivered shall be determined by the Representatives but shall not be earlier
than three nor later than 10 full business days after the
-13-
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
You, as Representatives of the several Underwriters, may cancel such option at
any time prior to its expiration by giving written notice of such cancellation
to the Company. To the extent, if any, that the option is exercised, payment for
the Option Shares shall be made on the Option Closing Date in Federal (same day
funds) through the facilities of The Depository Trust Company in New York, New
York drawn to the order of the Company.
3. Offering by the Underwriters.
It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at
the initial public offering price set forth in the Prospectus. The
Representatives may from time to time thereafter change the public offering
price and other selling terms. To the extent, if at all, that any Option Shares
are purchased pursuant to Section 2 hereof, the Underwriters will offer them to
the public on the foregoing terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
4. Covenants of the Company.
(a) The Company covenants and agrees with the several
Underwriters that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule
430A of the Rules and Regulations is followed, to prepare and timely
file with the Commission under Rule 424(b) of the Rules and Regulations
a Prospectus in a form approved by the Representatives containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules and
Regulations and (B) not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus or document
incorporated by reference therein of which the Representatives shall
not previously have been advised and furnished with a copy or to which
the Representatives shall have reasonably objected in writing or which
is not in compliance with the Rules and Regulations.
-14-
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto
shall have become effective, (B) of receipt of any comments from the
Commission, (C) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, and (D) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order preventing or suspending
the use of the Prospectus and to obtain as soon as possible the lifting
thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such
documents, and furnish such information as may be reasonably required
for that purpose, provided, that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified
or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents,
as are or may be required to continue such qualifications in effect for
so long a period as the Representatives may reasonably request for
distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing
Date, six signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the exhibits
filed therewith that may reasonably be requested), including all of the
amendments thereto, as the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder, so as
to permit the completion of the distribution of the Shares as
contemplated in this Agreement and the Prospectus. If during the period
in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in
the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Pro-
-15-
spectus is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply
with any law, the Company promptly will prepare and file with the
Commission an appropriate amendment to the Registration Statement or
amendment or supplement to the Prospectus so that the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earning statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will advise you
in writing when such statement has been so made available.
(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of
any shares of Capital Stock of the Company or other securities
convertible into or exchangeable or exercisable for shares of Capital
Stock or derivative of Capital Stock (or agreement for such) will be
made for a period of 180 days after the date of this Agreement,
directly or indirectly, by the Company otherwise than hereunder or with
the prior written consent of Deutsche Bank Securities.
(ix) The Company will use its reasonable best efforts to list,
subject to notice of issuance, the Shares on the New York Stock
Exchange.
(x) The Company has caused each officer and director, and all
of the stockholders and holders of options and warrants to purchase
Capital Stock of the Company who are identified in Schedule III to
furnish to you, on or prior to the date of this Agreement, a letter or
letters, in the form attached hereto as Annex A, pursuant to which,
subject to certain exceptions, each such person shall agree not to
offer, sell, sell short or otherwise dispose of any shares of Capital
Stock (or an agreement for sale) of the Company or any other securities
convertible, exchangeable or exercisable for Capital Stock or
derivative of Capital Stock (or an agreement for such) owned by such
person or request the registration for the offer or sale of any of the
foregoing (or as to which such person has the right to direct the
disposition of) for a period of 180 days after the date of this
Agreement, directly or indi-
-16-
rectly, except with the prior written consent of Deutsche Bank
Securities (the "Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus and shall file such reports
with the Commission with respect to the sale of the Shares and the
application of the proceeds therefrom as may be required in accordance
with Rule 463 under the Act.
(xii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of its subsidiaries to
register as an investment company under the Investment Company Act.
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Class A Common Stock.
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
(xv) The Company will comply with all applicable securities
and other applicable laws, rules and regulations in each jurisdiction
in which the Directed Shares are offered in connection with the
Directed Share Program.
(xvi) For a period of five years following the Closing Date,
to furnish to the Representatives copies of any annual reports,
quarterly reports and current reports filed by the Company with the
Commission on Forms 10-K, 10-Q and 8-K or such other similar forms as
may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company to the holders of
the Class A Common Stock, in each case which are not publicly available
on the Commission's website.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Underwriters' Selling Memorandum, the
Underwriters' Invitation Letter, the Listing Application, the Blue Sky Survey
and any supplements or amendments thereto; the filing fees of the Commission;
the filing fees and expenses (including legal fees and disbursements) incident
to securing any required review by the NASD of the terms of the sale
-17-
of the Shares; the listing fee of the New York Stock Exchange; and the expenses,
including the fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification of the Shares under state securities or
Blue Sky laws. The Company agrees to pay all costs and expenses of the
Underwriters, including the fees and disbursements of counsel for the
Underwriters, incident to the offer and sale of Directed Shares by the
Underwriters to employees and persons having business relationships with the
Company and its subsidiaries. The Company shall not, however, be required to pay
for any of the Underwriters expenses (other than those related to qualification
under NASD regulation (including any counsel fees incurred on behalf of or
disbursements by Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇") in its capacity as
"qualified independent underwriter"; provided, however, that such amounts shall
not exceed in the aggregate $[ ]) and state securities or Blue Sky laws) except
that, if this Agreement shall not be consummated because the conditions in
Section 6 hereof are not satisfied, or because this Agreement is terminated by
the Representatives pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the terms
hereof on its part to be performed, unless such failure, refusal or inability is
due primarily to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder; but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings
required by Rule 424 and Rule 430A of the Act shall have been made
within the applicable time period prescribed by, and in compliance
with, the Rules and Regulations, and any request of the Commission for
additional information (to be included in the Registration Statement or
otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company,
shall be contemplated or threatened by the Commission and no
-18-
injunction, restraining order or order of any nature by a Federal or
state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) substantially to the effect set forth in Annex B hereto.
(c) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, internal FCC counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, addressed
to the Underwriters (and stating that it may be relied upon by counsel
to the Underwriters) substantially to the effect set forth in Annex C
hereto.
(d) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Wiley, Rein & Fielding LLP, special FCC counsel for the Company, dated
the Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters (and stating that it may be relied upon
by counsel to the Underwriters) substantially to the effect set forth
in Annex D hereto.
(e) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion dated the Closing
Date or the Option Closing Date, as the case may be, with respect to
such matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents and
information as they reasonably request for the purpose of enabling them
to pass upon such matters.
(f) The Representatives shall have received, on each of the
date hereof, the Closing Date and, if applicable, the Option Closing
Date, a letter dated the date hereof, the Closing Date or the Option
Closing Date, as the case may be, in form and substance reasonably
satisfactory to them, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules
examined by them and included in the Registration Statement comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters
with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and
Prospectus.
-19-
(g) The Representatives shall have received, on each of the
date hereof, the Closing Date and, if applicable, the Option Closing
Date, a letter dated the date hereof, the Closing Date or the Option
Closing Date, as the case may be, in form and substance reasonably
satisfactory to them, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating that
in their opinion the financial statements and schedules examined by
them and included in the Registration Statement comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations; and containing
such other statements and information as is ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial and statistical information
contained in the Registration Statement and Prospectus.
(h) The Representatives shall have received on the Closing
Date and, if applicable, the Option Closing Date, as the case may be, a
certificate or certificates of the Chief Executive Officer and the Vice
President of Corporate Development and Treasurer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the
case may be, each of them severally represents as follows:
(i) the Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for such purpose have been taken or are, to his
knowledge, contemplated or threatened by the Commission;
(ii) the representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the case
may be, and the Company has complied in all material respects
with agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder
on or prior to the Closing Date or the Option Closing Date, as
the case may be; and
(iii) since the respective dates as of which
information is given in the Registration Statement and
Prospectus, there has not been any material adverse change or
any development involving a prospective material adverse
change in or affecting the business, management, properties,
assets, rights, operations, condition (financial or otherwise)
or prospects of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of
business.
(i) The Company shall have furnished to the Representatives
such further certificates and documents confirming the representations
and warranties, covenants and conditions contained herein and related
matters as the Representatives may reasonably have requested.
-20-
(j) The Firm Shares and Option Shares, if any, have been duly
listed, subject to notice of issuance, on the New York Stock Exchange.
(k) The Lockup Agreements described in Section 4(x) are in
full force and effect.
(l) Concurrently with or prior to the issuance and sale of the
Firm Shares, the Merger and each of the other Transactions (other than
the offering of the Shares contemplated by this Agreement) shall have
been consummated.
(m) Prior to the issuance and sale of the Firm Securities, the
FCC shall have issued initial staff orders approving the Merger and the
other Transactions in the forms contemplated by the Prospectus and such
orders shall be in full force and effect.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Representatives and to
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in writing
or by telegram at or prior to the Closing Date or the Option Closing Date, as
the case may be.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
7. Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the portion
of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to
-21-
which such Underwriter or any such controlling person may become
subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, (ii) 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 in the light of the
circumstances under which they were made or (iii) any act or failure to
act, or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i) or (ii) above (provided,
that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct); provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation
thereof; provided, further, that with respect to any untrue statement
or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 8(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 it shall be determined
by a court of competent jurisdiction by final and non-appealable
judgment that (i) the Company had previously furnished sufficient
copies of the Prospectus to the Representatives, (ii) the untrue
statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus and (iii) such loss, claim,
damage or liability results from the fact that there was not sent or
given to such person at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Prospectus. The
Company also agrees to indemnify and hold harmless Bear ▇▇▇▇▇▇▇ and
each person, if any, who controls Bear ▇▇▇▇▇▇▇ within the meaning of
either Section 15 of the Act, or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities and
judgments incurred as a result of Bear ▇▇▇▇▇▇▇' participation as a
"qualified independent underwriter" within the meaning of Rule 2720 of
the National Association of Securities Dealers' Conduct Rules in
connection with the offering of the Shares, except to the extent any
such losses, claims, damages, liabilities and judgments
-22-
are found in a final judgment by a court of competent jurisdiction (not
subject to further appeal) to have resulted primarily and directly from
the gross negligence or willful misconduct of Bear ▇▇▇▇▇▇▇; and
(2) to reimburse each Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage
or liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Shares, whether or
not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined that
the Underwriters were not entitled to receive payments for legal and
other expenses pursuant to this subparagraph, the Underwriters will
promptly return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Act, against any losses, claims, damages
or liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter will
be liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b), or (d) shall be available to
any party who shall fail to give notice as provided in this Section 8(c) if the
party to whom notice was not given was unaware of the
-23-
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, but the failure to give such notice shall
not relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a), (b) or (d). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
and shall pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the indemnified
party in the event (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel acceptable to the indemnified party within
a reasonable period of time after notice of commencement of the action. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 8(a), (b) or (d) and by the Company
in the case of parties indemnified pursuant to Section 8(b). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding. Notwithstanding anything contained herein
to the contrary, if indemnity may be sought pursuant to Section 8(a) hereof in
respect of such action or proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for Bear ▇▇▇▇▇▇▇ in its capacity as a "qualified independent
underwriter" and all persons, if any, who control Bear ▇▇▇▇▇▇▇ within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act.
-24-
(d) The Company and each subsidiary of the Company, whether
direct or indirect, jointly and severally, agree to indemnify and hold harmless
Deutsche Banc Alex. ▇▇▇▇▇ and its affiliates and each person, if any, who
controls Deutsche Banc Alex. ▇▇▇▇▇ or its affiliates within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program, or caused by 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; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant has agreed to purchase; or (iii) related
to, arising out of, or in connection with the Directed Share Program other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of Deutsche Bank Securities.
(e) To the extent the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), (b), or (d) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-25-
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an
additional defendant in any such proceeding in which such other contributing
party is a party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 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 8 and the
representations and warranties of the Company 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 or any persons
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, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
9. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on
-26-
the part of the Company), you, as Representatives of the Underwriters, shall use
your reasonable efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Shares which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Shares agreed to be purchased by
the defaulting Underwriter or Underwriters, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Shares to be purchased on the Closing Date or the Option Closing date, as the
case may be, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Shares which they are obligated to purchase
hereunder, to purchase the Shares which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate number of shares of
Shares with respect to which such default shall occur exceeds 10% of the Shares
to be purchased on the Closing Date or the Option Closing Date, as the case may
be, the Company or you as the Representatives of the Underwriters will have the
right, by written notice given within the next 36-hour period to the parties to
this Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company except to the extent provided in
Sections 5 and 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option Closing
Date, as the case may be, may be postponed for such period, not exceeding seven
days, as you, as Representatives, may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. Notices.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to Deutsche Bank
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel (telecopier no: [ ]), with a copy to Deutsche Bank
Securities Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Manager (telecopier no: [ ]); if to the Company, to
LIN TV Corp., One Richmond Square, Suite 230E, Providence, Rhode Island 02906,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇) and to Hicks, Muse,
▇▇▇▇ & ▇▇▇▇▇ Incorporated, 1325 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy to Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇.
-27-
11. Termination.
(a) This Agreement may be terminated by the Representatives by
notice to the Company at any time prior to the Closing Date or any Option
Closing Date (if different from the Closing Date and then only as to Option
Shares) if any of the following has occurred: (i) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
any material adverse change or any development involving a prospective material
adverse change in or affecting the condition (financial or otherwise), results
of operations business or prospects of the Company and its subsidiaries taken as
a whole of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business; (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political conditions
if the effect of such outbreak, escalation, declaration, emergency, calamity,
crisis or change on the financial markets of the United States would, in the
reasonable judgment of the Representatives, make it impracticable or inadvisable
to market the Shares or to enforce contracts for the sale of the Shares; (iii)
suspension of trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or The Nasdaq National Market or limitation on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such Exchange; (iv) the declaration of a banking moratorium
by United States or New York State authorities; (v) any downgrading, or
placement on any watch list for possible downgrading, in the rating of any of
the debt securities of any of the Company's subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Exchange Act); or (vi) the suspension of trading of the
Company's common stock by the New York Stock Exchange, the Commission, or any
other governmental authority.
(b) as provided in Sections 6 and 9 of this Agreement.
12. Successors.
This Agreement has been and is made solely for the benefit of
the Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
13. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the information set forth the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting", (i) the list
of Underwriters and their respective participation in the sale of the
-28-
Securities; (ii) the sentences related to concessions and reallowances; and
(iii) the paragraph related to stabilization, syndicate covering transactions
and penalty bids in the Preliminary Prospectus and the Prospectus.
14. Miscellaneous.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
-29-
Very truly yours,
LIN TV Corp.
By:
-----------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
As Representatives of the several
Underwriters listed on Schedule I
By: Deutsche Bank Securities Inc.
By:
-------------------------
Authorized Officer
By:
----------------------
Authorized Officer
SCHEDULE I
Schedule of Underwriters
Number of Firm
Shares to
Underwriter be Purchased
----------- ------------
Deutsche Bank Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
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Total [ ]
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