EXHIBIT 1.1
RADIO ONE, INC.
RADIO ONE TRUST I*
RADIO ONE TRUST II*
FORM OF UNDERWRITING AGREEMENT
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1. Introductory. Radio One, Inc.*, a Delaware corporation ("Company"),
proposes to issue and sell from time to time certain of its unsecured debt
securities, preferred stock and Class D Common Stock, par value $.001 per share,
of the Company ("Common Stock"), warrants, stock purchase contracts, stock
purchase units and trust preferred securities (the "Trust Preferred Securities")
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The Registered Securities constituting debt
securities will be issued under one or more of the following indentures as
follows: (i) the 8 7/8% Senior Subordinated Notes due 2011, by and among the
Company, its guarantee subsidiaries and The Bank of New York, as trustee, as
amended by that First Supplemental Indenture dated August 10, 2001 and Second
Supplemental Indenture dated December 31, 2001 (the "8 7/8% Indenture"); (ii)
the form of new senior debt indenture, between the Company and Wilmington Trust
Company (the "Senior Debt Indenture"); (iii) the form of new subordinated debt
indenture, between the Company and Wilmington Trust Company (the "Subordinated
Debt Indenture"); and (iv) the form of new junior subordinated debenture
indenture, between the Company and Wilmington Trust Company (the "Junior
Subordinated Indenture"), each of the 8 7/8% Indenture, the Senior Debt
Indenture, the Subordinated Debt Indenture and the Junior Subordinated
Indenture, (an "Indenture"), in one or more series, which series may vary as to
interest rates, maturities, redemption provisions, selling prices and other
terms. The Registered Securities constituting preferred stock may be issued in
one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices and other terms. Particular series or offerings of
Registered Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with the terms of offering determined at the
time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(e) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company [and the Radio One
Trusts]. The Company [and the Radio One Trusts, jointly and severally,] as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
__________________
* If any trust preferred securities are issued, then Radio One Trust I, a
Delaware statutory business trust, and/or Radio One Trust II, a Delaware
statutory business trust, as the case may be (together, the "Radio One Trusts"),
shall be added as a party (or parties) to the final Underwriting Agreement. The
bracketed language in this form of Underwriting Agreement will be included if
both Radio One Trusts are parties to the final Underwriting Agreement. If only
one of the Radio One Trusts is a party, the bracketed language will be modified
appropriately.
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(a) A registration statement (No. 333- ), including two
prospectuses, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectuses included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt
securities or preferred stock [or Trust Preferred Securities]) and the
terms of the offering of the Offered Securities, as first filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933 ("Act"), including all
material incorporated by reference therein, are hereinafter referred to
as the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of
1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by
any Underwriter through the Representatives, if any, specifically for
use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, [to hold the
common securities of the Radio One Trusts (the "Trust Common
Securities"), to issue, deliver and perform its obligations under the
Trust Agreements (as defined below)]; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have, individually or in the aggregate,
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated or
organized and is an existing corporation (or other entity) in good
standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation (or other entity) in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to so qualify would not have a Material Adverse
Effect; all of the issued and outstanding capital stock (or other
equity interests) of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable (if
applicable); and, except as disclosed in the Prospectus, the capital
stock (or other equity interests) of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
[(e) Each of the Radio One Trusts has been duly created and is
validly existing as a statutory business trust in good standing under
the Business Trust Act of the State of Delaware (the "Delaware Business
Trust Act") with trust power and authority to own property and conduct
its
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business as described in the Prospectus; each of the Radio One Trusts
has conducted and will conduct no business other than the transactions
contemplated by this Agreement and as described in the Prospectus; each
of the Radio One Trusts is not a party to or bound by any agreement or
instrument other than this Agreement, the applicable Amended and
Restated Trust Agreement dated as of _________ (the "Trust Agreement")
among the Company, Wilmington Trust Company, as property trustee (the
"Property Trustee"), Wilmington Trust Company, as Delaware trustee (the
"Delaware Trustee") and the individuals named therein as the
administrative trustees (the "Administrative Trustees"), and the
holders, from time to time, of undivided beneficial ownership interests
in the assets of the Radio One Trust, and the agreements and
instruments contemplated by the Trust Agreement and described in the
Prospectus; each of the Radio One Trusts has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreements described in
the Prospectus; each of the Radio One Trusts is not a party or subject
to any action, suit or proceeding of any nature; each of the Radio One
Trusts is and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; each of the Radio One Trusts does
not have any consolidated or unconsolidated subsidiaries; each of the
Radio One Trusts is and will be treated as a consolidated subsidiary of
the Company pursuant to generally accepted accounting principles; and
each of the Radio One Trusts is not required to be authorized to do
business in any jurisdiction other than the State of Delaware.]
[(f) Each of the Trust Agreements has been duly authorized, and
when executed and delivered by the Company, as Sponsor, and the
Administrative Trustees, and, assuming due authorization, execution and
delivery of the Trust Agreements by the Property Trustee and the
Delaware Trustee, will constitute a valid and legally binding
obligation of the Company and the Administrative Trustees, enforceable
against the Company and the Administrative Trustees in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance and transfer, reorganization, moratorium and other similar
laws of general applicability relating to or affecting creditors'
rights and to general equitable principles (collectively, the
"Bankruptcy Exceptions"), and will conform to the description thereof
contained in the Prospectus. Each of the Administrative Trustees
currently is an employee of the Company and has been duly authorized by
the Company to serve in such capacity and to execute and deliver the
Trust Agreements.]
[(g) Each of the Trust Preferred Securities Guarantee Agreements
(the "Guarantee Agreements") between the Company and Wilmington Trust
Company, as guarantee trustee (the "Guarantee Trustee"), has been duly
authorized, executed and delivered by the Company, and, assuming due
authorization, execution and delivery thereof by the Guarantee Trustee,
will constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to the Bankruptcy Exceptions, and will conform to the description
thereof contained in the Prospectus.]
(h) If the Offered Securities are debt securities: the applicable
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below)
or pursuant to Delayed Delivery Contracts (as hereinafter defined), the
applicable Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated, issued
and delivered and will conform to the description thereof contained in
the Prospectus and the applicable Indenture and such Offered Securities
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to the Bankruptcy
Exceptions.
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(i) If the Offered Securities are preferred stock: the Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been validly
issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders
of the Company have no preemptive rights with respect to the Offered
Securities.
(j) If the Offered Securities are Common Stock: the Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to its Common Stock.
(k) If the Offered Securities are convertible: when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement
on the Closing Date, such Offered Securities will be convertible into
Common Stock in accordance with their terms (if the Offered Securities
are preferred stock) or the applicable Indenture (if the Offered
Securities are debt securities); the shares of Common Stock initially
issuable upon conversion of such Offered Securities have been duly
authorized and reserved for issuance upon such conversion and, when
issued upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Common Stock.
[(l) If the Offered Securities are Trust Preferred Securities:
(i) The Trust Common Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the applicable Radio One Trust to the Company
against payment therefor as described in the Prospectus, will
be validly issued and, subject to the terms of the Trust
Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the applicable Radio One Trust and
will conform in all material respects to the description
thereof contained in the Prospectus. The issuance of the Trust
Common Securities is not subject to preemptive or other
similar rights. At the Closing Date all of the issued and
outstanding Trust Common Securities of the applicable Radio
One Trust will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, claim,
encumbrance or equitable right.
(ii) The Trust Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered against payment therefor as provided herein, will be
validly issued and, subject to the terms of the Trust
Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the applicable Radio One Trust and
will conform in all material respects to the description
thereof contained in the Prospectus. The issuance of the Trust
Preferred Securities will not be subject to preemptive or
other similar rights.
(iii) The junior subordinated debentures (the "Junior
Subordinated Debentures") have been duly authorized by the
Company and, at the Closing, will have been duly executed by
the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as
described in the Prospectus, will constitute valid and binding
obligations of the Company, enforceable against the
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Company in accordance with their terms, subject to the
Bankruptcy Exceptions; and the Junior Subordinated Debentures
will be in the forms contemplated by, and entitled to the
benefits of, the Junior Subordinated Indenture and will
conform in all material respects to the descriptions thereof
in the Prospectus.]
(m) If the Offered Securities are Common Stock or are convertible
into Common Stock: except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment.
(n) If the Offered Securities are Common Stock or are convertible
into Common Stock: except as disclosed in the Prospectus and except for
the Registration Rights Agreement dated as of February 7, 2001 by and
among the Company and the Stockholders (as defined therein) and except
as disclosed on Schedule 2(m) attached hereto, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any Common Stock
or convertible security of the Company owned or to be owned by such
person or to require the Company to include such Common Stock or
convertible security in the securities registered pursuant to the
Registration Statement or in any Common Stock or convertible security
being registered pursuant to any other registration statement filed by
the Company under the Act.
(o) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body including, without limitation,
the Federal Communications Commission ("FCC") or any court or other
person is required to be obtained or made by the Company [or the Radio
One Trusts] for the execution and delivery of this Agreement and
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement), in connection with the
issuance and sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and, if the Offered
Securities are debt securities, the Trust Indenture Act and such as may
be required under state securities laws.
(p) The execution, delivery and performance of the applicable
Indenture (if the Offered Securities are debt securities), the Terms
Agreement (including the provisions of this Agreement), [the Trust
Agreements, the Guarantee Agreements], and any Delayed Delivery
Contracts, and [the issuance of Trust Common Securities and Trust
Preferred Securities by each of the Radio One Trusts, the issuance of
the Junior Subordinated Debentures by the Company,] the issuance and
sale of the Offered Securities and, if the Offered Securities are debt
securities or preferred stock [or Trust Preferred Securities],
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body (including, without limitation, any
order of the FCC published or otherwise known to the Company) or any
court, domestic or foreign, having jurisdiction over the Company [or
the Radio One Trusts] or any subsidiary of the Company [or the Radio
One Trusts] or any of their properties, or any agreement or instrument
to which the Company [or the Radio One Trusts] or any such subsidiary
is a party or by which the Company [or the Radio One Trusts] or any
such subsidiary is bound or to which any of the properties of the
Company [or the Radio One Trusts] or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary [or the
Trust Agreements], and the Company [and the Radio One Trusts have]
[has] full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement). [Each of the Radio One Trusts has full
power and authority to authorize, issue and sell the Trust Common
Securities and the Trust Preferred Securities, and the Company has full
power and authority to authorize, issue and sell the Junior
Subordinated Debentures.]
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(q) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company [and the Radio One Trusts] and, if the Offered Securities are
debt securities or preferred stock, any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company.
(r) Except as disclosed in the Prospectus, the Company, [and] its
subsidiaries [and the Radio One Trusts] have good and marketable title
to all real properties and all other properties and assets owned by
them, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company, [and] its subsidiaries [and the Radio One
Trusts] hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(s) The Company and its subsidiaries possess adequate certificates,
authorities or permits and hold all necessary licenses issued by
appropriate governmental agencies or bodies (including, without
limitation, licenses issued by the FCC) necessary to conduct the
business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority, permit or license that, if determined adversely
to the Company or any of its subsidiaries, would have a Material
Adverse Effect. Neither the Company nor any of its subsidiaries is in
violation of any material requirement of any Federal Communications Law
or any published order of any court or administrative agency or
authority relating thereto, where such violation, individually, or in
the aggregate would have a Material Adverse Effect or would result in a
revocation, or non-renewal of, any of the main commercial radio station
licenses issued by the FCC and held by the Company and the identified
subsidiaries as specified in Attachment I to the Terms Agreement (the
"FCC Licenses"), other than as disclosed in the Registration Statement
or Prospectus.
(t) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(u) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(v) Each of the Company, [and] its subsidiaries [and the Radio One
Trusts] has filed all necessary federal, state, local and foreign
income and franchise tax returns that are required to be filed, except
where the failure to file such returns would not have a Material
Adverse Effect and each of the Company, [and] its subsidiaries [and the
Radio One Trusts] has paid all taxes shown as due thereon, except for
any assessment, fine or penalty that is currently being contested in
good faith and for which adequate reserves have been provided or as
described in the Prospectus.
(w) Except as disclosed in the Prospectus, the Company, [and] its
subsidiaries [and the Radio One Trusts] are not in violation of any
statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), do
not own
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or operate any real property contaminated with any substance that is
subject to any environmental laws, are not liable for any off-site
disposal or contamination pursuant to any environmental laws, or are
not subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(x) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings, inquiries or investigations before or
brought by any court or governmental agency or body (including without
limitation, the FCC) against or affecting the Company, any of its
subsidiaries[, the Radio One Trusts] or any of their respective
properties that, if determined adversely to the Company, [or] any of
its subsidiaries [or the Radio One Trusts], would individually or in
the aggregate have a Material Adverse Effect, would result in the
revocation or non-renewal of any of the FCC Licenses or would
materially and adversely affect the ability of the Company [or the
Radio One Trusts] to perform their obligations under the applicable
Indenture (if the Offered Securities are debt securities), the Terms
Agreement (including the provisions of this Agreement), [the Trust
Agreements, the Guarantee Agreements] or any Delayed Delivery
Contracts, or which are otherwise material in the context of the sale
of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge [or the Radio One Trusts'
knowledge], contemplated.
(y) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; any schedules included in the Registration
Statement present fairly the information required to be stated therein;
and if pro forma financial statements are included in the Registration
Statement and Prospectus: the assumptions used in preparing the pro
forma financial statements included in the Registration Statement and
the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect
the proper application of those adjustments to the corresponding
historical financial statement amounts.
(z) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(aa) The Company [and each Radio One Trust] is not and, after
giving effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act of 1940.
(bb) Each of the Company, [and] its subsidiaries [and the Radio One
Trusts] (i) make and keep accurate books and records and (ii) maintain
internal accounting controls that provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain profitability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
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(cc) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not reasonably be expected to have a
Material Adverse Effect, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, any redemption provisions and any
sinking fund requirements and whether any of the Offered Securities may be sold
to institutional investors pursuant to Delayed Delivery Contracts (as defined
below), the purchase price to be paid by the Underwriters and (if the Offered
Securities are debt securities or preferred stock [or Trust Preferred
Securities]) the terms of the Offered Securities not already specified (in the
applicable Indenture, in the case of Offered Securities that are debt
securities), including, but not limited to, interest rate (if debt securities),
dividend rate (if preferred stock), maturity (if debt securities), any
redemption provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to Delayed
Delivery Contracts (as defined below). The Terms Agreement will also specify the
time and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Underwriter first
named in the Terms Agreement (the "Lead Underwriter") and the Company agree as
the time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing Date (if
later than the otherwise applicable settlement date) shall be the date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities for which payment of
funds and delivery of securities shall be as hereinafter provided. The
obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to offer
the Offered Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later
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than the business day prior to the Closing Date of the principal amount or
number of shares of Contract Securities.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of ______ at the place of payment specified in the Terms Agreement on
the Closing Date, against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities.
4. Certain Agreements of the Company [and the Radio One Trusts]. The
Company [and the Radio One Trusts, jointly and severally] agree[s] with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company [and the Radio One Trusts] will file the Prospectus
with the Commission pursuant to and in accordance with Rule 424(b)(2)
(or, if applicable and if consented to by the Lead Underwriter,
subparagraph (5)) not later than the second business day following the
execution and delivery of the Terms Agreement.
(b) The Company [and the Radio One Trusts] will advise the Lead
Underwriter promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will afford the Lead
Underwriter a reasonable opportunity to comment on any such proposed
amendment or supplement; and the Company [and the Radio One Trusts]
will also advise the Lead Underwriter promptly of the filing of any
such amendment or supplement and of the institution by the Commission
of any stop order proceedings in respect of the Registration Statement
or of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company [and the Radio One Trusts] promptly will notify the Lead
Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the Registration Statement relating to the Registered Securities, (ii)
the effective date of the most recent post-effective
9
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company [and the Radio One Trusts] will furnish to the
Representatives copies of the Registration Statement, including all
exhibits, any related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Lead Underwriter reasonably requests. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company [and the Radio One Trusts] will arrange for the
qualification of the Offered Securities for sale and (if the Offered
Securities are debt securities or preferred stock [or Trust Preferred
Securities]) the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter designates
and will continue such qualifications in effect so long as required for
the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under the Terms Agreement (including the provisions
of this Agreement), for any filing fees or other expenses (including
fees and disbursements of counsel) in connection with qualification of
the Registered Securities for sale and (if the Offered Securities are
debt securities or preferred stock [or Trust Preferred Securities]) any
determination of their eligibility for investment under the laws of
such jurisdictions as the Lead Underwriter may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities (if
they are debt securities or preferred stock [or Trust Preferred
Securities]), for any applicable filing fee incident to, the review by
the National Association of Securities Dealers, Inc. of the Registered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company [or the Radio One
Trusts] in connection with attending or hosting meetings with
prospective purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses,
any preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(i) If the Offered Securities are debt securities or preferred
stock, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock), or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the Lead Underwriter for a period beginning at
the time of execution of the Terms Agreement and ending the number of
days after the Closing Date specified under "Blackout" in the Terms
Agreement.
10
(j) If the Offered Securities are Common Stock or are convertible
into Common Stock, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the
Terms Agreement and ending the number of days after the Closing Date
specified under "Blackout" in the Terms Agreement.
[(k) If the Offered Securities are Trust Preferred Securities, the
Company and the applicable Radio One Trust will not offer, sell,
contract to sell or otherwise dispose of any Trust Preferred
Securities, Junior Subordinated Debentures, any other beneficial
interests in the applicable Radio One Trust, or any other securities
that are substantially similar to the Trust Preferred Securities or
Junior Subordinated Debentures, including any guarantee of such
securities, or any securities convertible into or exchangeable for or
representing the right to receive Trust Preferred Securities, Junior
Subordinated Debentures or any such substantially similar securities,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in
the Terms Agreement.]
[(l) Each of the Radio One Trusts will use the net proceeds
received by it from the sale of the Trust Preferred Securities, and the
Company will use the proceeds received by it from the sale of the
Junior Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."]
[(m) The Company will use its best efforts to cause the Trust
Preferred Securities to be listed on the ____________ Exchange, subject
to official notice of issuance.]
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company [and the Radio One Trusts] herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company [and the Radio One Trusts] of [its] obligations hereunder and to
the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, 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 to
the effect that:
(i) in their opinion the financial statements and
any schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
11
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net broadcasting revenue
or net operating income in the total or (if the
Offered Securities are Common Stock or are
convertible into Common Stock) per share amounts of
consolidated income before extraordinary items or net
income or (if the Offered Securities are debt
securities) in the ratio of earnings to fixed charges
or (if the Offered Securities are preferred stock) in
the ratio of earnings to fixed charges and preferred
stock dividends combined;
except in all cases set forth in clauses (B), (C) and (D)
above for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of
12
such general accounting records and other procedures specified
in such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such letter;
(v) they have
(A) Read the unaudited pro forma
consolidated balance sheet and the unaudited pro
forma consolidated statement of operations and other
data included in the Registration Statement.
(B) Inquired of certain officials of the
Company and the companies being acquired who have
responsibility for financial and accounting matters
about
(x) The basis for their
determination of the pro forma
adjustments, and
(y) Whether the unaudited pro forma
condensed consolidated
financial statements referred
to in Section 5(a) comply as to
form in all material respects
with the applicable accounting
requirements of rule 11-02 of
Regulation S-X.
(C) Proved the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the unaudited pro forma
condensed consolidated financial statements.
The foregoing procedures by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are
substantially less in scope than an examination, the
objective of which is the expression of an opinion on
management's assumptions, the pro forma adjustments,
and the application of those adjustments to
historical financial information. Accordingly, they
do not express such an opinion. The foregoing
procedures would not necessarily reveal matters of
significance with respect to the comments in the
following paragraph. Accordingly, they make no
representation about the sufficiency of such
procedures for the Underwriters' purposes; and
(vi) Nothing came to their attention as a result of the
procedures specified in paragraph (v), however, that caused
them to believe that the unaudited pro forma consolidated
financial statements referred to in (v) included in the
Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements
of rule 11-02 of Regulation S-X and that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements. Had they
performed additional procedures or had they made an
examination of the pro forma condensed consolidated financial
statements, other matters might have come to their attention
that would have been reported to the Underwriters.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) On or prior to the date of the Terms Agreement, the
Representatives shall have received from PricewaterhouseCoopers LLP,
independent public accountants, a letter, in form and substance
satisfactory to the Representatives, dated the date of delivery
thereof, containing statements and
13
information of the type ordinarily included in accountants' "comfort
letters" to Underwriters with respect to certain financial statements
and certain financial information contained in the Prospectus.
(c) On or prior to the date of the Terms Agreement, the
Representatives shall have received from the Chief Financial Officer of
the Company, a certificate, in form and substance satisfactory to the
Representatives, dated the date of delivery thereof, containing
representations with respect to the weighted average exercise price in
the Company's Proxy Statement for the 2001 Annual Meeting of
Stockholders and to certain other agreed upon information.
(d) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company [, the Radio One Trusts] or any
Underwriter, shall be contemplated by the Commission.
(e) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including any Representatives, be likely
to prejudice materially the success of the proposed issue, sale or
disposition of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market; (iv) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York authorities; (vi) any
major disruption of settlements of securities clearance services in the
United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including any Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(f) The Representatives shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, to the
effect that:
(i) Each of the Company and its subsidiaries
is a corporation validly existing and in good standing
under the laws of the jurisdiction of its incorporation,
the Company has the full corporate power to enter into
and perform its obligations hereunder and the Company
and each of its subsidiaries has the corporate power to
own and lease its properties and to carry on its
business as it is currently being conducted.
14
(ii) The Company and each of its
subsidiaries is duly qualified to do business as a
foreign corporation in and is in good standing in each
jurisdiction listed opposite its name on Attachment I
hereto.
(iii) All of the issued and outstanding
shares of capital stock of, or other ownership interests
in, each of the subsidiaries listed on Attachment II
have been duly authorized and validly issued and are
fully paid and nonassessable, and to such counsel's
knowledge, all such shares are owned, directly or
through wholly owned subsidiaries of the Company, by the
Company, free and clear of any lien, except as described
in the Prospectus.
(iv) The Company's authorized capital
stock conforms as to legal matters to the description
thereof contained in the Prospectus.
[(v) The Junior Subordinated Debentures
have been duly authorized, executed and delivered by the
Company, conform in all material respects to the
description thereof contained in the Prospectus and,
assuming due authentification thereof by the Trustee and
payment and delivery as provided in the Terms Agreement,
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance
with their terms, subject to the Bankruptcy Exceptions.]
[(vi) The "Guarantee" Agreements have been
duly authorized, executed and delivered by the Company,
conform in all material respects to the description
thereof contained in the Prospectus and have been duly
qualified under the Trust Indenture Act.]
[(vii) The Trust Agreements have been duly
authorized, executed and delivered by the Company in its
capacity as sponsor thereunder, conform in all material
respects to the description thereof contained in the
Prospectus and have been duly qualified under the Trust
Indenture Act.]
(viii) If the Offered Securities are debt
securities: the applicable Indenture has been duly
authorized, executed and delivered by the Company and
has been duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding obligation
of the Company enforceable in accordance with its terms,
subject to the Bankruptcy Exceptions; the Offered
Securities, other than the Contract Securities, have
been duly authorized and executed and authenticated; the
Offered Securities, other than any Contract Securities,
when issued and delivered in the manner provided in the
applicable Indenture, will constitute valid and legally
binding obligations of the Company enforceable in
accordance with their terms, subject to the Bankruptcy
Exceptions; the Contract Securities, when issued,
delivered and sold pursuant to the Delayed Delivery
Contracts, will constitute valid and legally binding
obligations of the Company enforceable in accordance
with their terms, subject to the Bankruptcy Exceptions;
and the Offered Securities other than any Contract
Securities conform, and any Contract Securities, when so
issued, delivered and sold will conform to the
description thereof contained in the Prospectus;
(ix) If the Offered Securities are
preferred stock: the Offered Securities have been duly
authorized and when issued and delivered against payment
therefor in
15
accordance with this Agreement, the Offered Securities
other than any Contract Securities will have been
validly issued, fully paid and nonassessable; any
Contract Securities, when issued, delivered and sold
pursuant to Delayed Delivery Contracts, will be validly
issued, fully paid and nonassessable; and the Offered
Securities other than any Contract Securities conform,
and any Contract Securities, when so issued, delivered
and sold, will conform, to the description thereof
contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the
Offered Securities;
(x) If the Offered Securities are Common
Stock: the Offered Securities and all other outstanding
shares of the Common Stock have been duly authorized and
when issued and delivered against payment therefor in
accordance with this Agreement, will have been validly
issued, fully paid and nonassessable; and the Offered
Securities conform to the description thereof contained
in the Prospectus; and to such counsel's knowledge, are
not subject to any preemptive or similar rights with
respect to the Offered Securities;
(xi) If the Offered Securities are
convertible: the Offered Securities other than any
Contract Securities are, and any Contract Securities,
when (if the Offered Securities are debt securities)
executed, authenticated, issued and delivered in the
manner provided in the applicable Indenture and sold
pursuant to Delayed Delivery Contracts or (if the
Offered Securities are preferred stock) when issued,
delivered and sold pursuant to Delayed Delivery
Contracts, will be convertible into Common Stock in
accordance with (if they are debt securities) the
applicable Indenture or (if they are preferred stock)
their terms; the shares of Common Stock initially
issuable upon conversion of the Offered Securities have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will
be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof
contained in the Prospectus; and to such counsel's
knowledge, are not subject to any preemptive or similar
rights with respect to the Common Stock;
(xii) If the Offered Securities are not
Trust Preferred Securities: no consent, approval,
authorization or order of, or filing with, any
governmental agency or body or any court is required for
the consummation of the transactions contemplated by the
Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of
the Offered Securities by the Company, except such as
have been obtained and made under the Act and, if the
Offered Securities are debt securities, the Trust
Indenture Act and such as may be required under state
securities laws;
(xiii) The Company's execution, delivery and
performance of the applicable Indenture (if the Offered
Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and the
Company's compliance with all of the provisions thereof,
including the issuance and sale of the Offered
Securities and, if the Offered Securities are debt
securities or preferred stock any Delayed Delivery
Contracts, and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt
securities or preferred stock [or Trust Preferred
Securities], compliance with the terms and provisions
thereof will not (i) violate the Certificate of
Incorporation or Bylaws of the Company or any of its
subsidiaries [or the
16
Trust Agreements], (ii) breach or result in a default
under, any existing obligation of the Company [or the
Radio One Trusts] under, or cause an acceleration of any
obligation under or result in the imposition or creation
of (or the obligation to create or impose) a lien with
respect to, any of the agreements listed as an exhibit
to the Registration Statement, (iii) to such counsel's
knowledge, breach or otherwise violate any provisions in
any order, writ, judgment or decree of any governmental
agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company [or a Radio One
Trust] or any of their properties, or (iv) constitute a
violation by the Company of any applicable provision of
any law, statute or regulation covered by this opinion
and the Company [and the Radio One Trusts] [has] full
power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(xiv) Such counsel has no knowledge about
any legal or governmental proceeding that is pending or
threatened against the Company [or a Radio One Trust]
that has caused us to conclude that such proceeding is
required by Item 103 of Regulation S-K to be described
in the Prospectus but that is not so described or is
required to be filed as an exhibit to the Registration
Statement but has not been so filed;
(xv) To such counsel's knowledge, there
are no outstanding options, warrants or other rights
calling for the issuance of, or any commitment, plan or
arrangement to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable
or exercisable for any capital stock of the Company,
except as described in the Prospectus.
(xvi) The Registration Statement has become
effective under the Act, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified
therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act,
and the Registration Statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the
date of the Terms Agreement, and any amendment or
supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the
Act, if the Offered Securities are debt securities, the
Trust Indenture Act, and the Rules and Regulations; such
counsel have no reason to believe that such registration
statement, as of its effective date, the Registration
Statement, as of the date of the Terms Agreement or as
of the Closing Date, or any amendment thereto, as of its
date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading or that
the Prospectus, as of the date of the Terms Agreement or
as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; it being understood that such counsel need
express no opinion as to the financial statements or
other financial data contained in the Registration
Statement or the Prospectus.
17
(xvii) If the Offered Securities are not
Trust Preferred Securities: the Terms Agreement
(including the provisions of this Agreement) and, if the
Offered Securities are debt securities or preferred
stock, any Delayed Delivery Contracts, have been duly
authorized, executed and delivered by the Company.
[(xviii) If the Offered Securities are Trust
Preferred Securities: the Terms Agreement (including the
provisions of this Agreement) has been duly authorized,
executed and delivered by the Company, and duly executed
and delivered by the Radio One Trusts.]
[(xix) Each of the Radio One Trusts will
be classified as a grantor trust for United States
federal income tax purposes and not as an association
taxable as a corporation; the Junior Subordinated
Debentures will be classified as indebtedness for United
States federal income tax purposes; [and subject to the
qualifications and limitations set forth therein, the
statements set forth in the Prospectus under the caption
"United States Federal Income Tax Consequences," insofar
as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all
material respects.]
(g) The Representatives shall have received an opinion, dated
the Closing Date, from ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, FCC counsel to the
Company, to the effect that:
(i) The information in the Prospectus
under the caption "Risk Factors- Government Regulation,"
to the extent that such information constitutes a
summary of the Communications Act of 1934, as amended,
and the rules, regulations and published administrative
orders promulgated thereunder (collectively, the
"Federal Communications Laws") has been received by such
counsel and is correct in all material respects.
(ii) Except as previously made or
obtained, or as disclosed in the Prospectus, as the case
may be, no filing or registration with, or
authorization, approval, consent, license, order,
qualification or decree of any court or administrative
agency or authority is necessary or required under the
Federal Communications Laws to be obtained or made by
the Company or any subsidiary of the Company in
connection with the execution or delivery by the Company
of the Terms Agreement (including the provisions of this
Agreement), the performance by the Company of the
transactions contemplated thereby or the offering,
issuance or sale of the Offered Securities, or the
public offering thereof by the Underwriters, as
applicable, all as of the Closing Date.
(iii) To their knowledge, neither the
Company nor any of its subsidiaries is in violation in
any material respect of any Federal Communications Law
or in violation of any published order of any court or
administrative agency or authority relating thereto,
where such violation (individually, or in the
aggregate,) would have a Material Adverse Effect or
would result in revocation, or non renewal of, any of
the FCC Licenses, other than as disclosed in the
Registration Statement or Prospectus.
(iv) The Company and the identified
subsidiaries are the holders of the FCC Licenses, all of
which are in full force and effect, for the maximum term
18
customarily issued, with no material conditions,
restrictions or qualifications other than as described
in the Prospectus or that appear in the ordinary course
in the FCC Licenses, and to their knowledge, such FCC
Licenses constitute all of the commercial radio station
licenses necessary for the Company and the subsidiaries
to own their properties and to conduct their businesses
in the manner and to the full extent now operated as
described in the Prospectus. To their knowledge there
are no facts or circumstances which would justify the
Commission denying pending applications for assignment
of any of the main commercial radio station licenses
issued by the FCC and held by the Company and the
identified subsidiaries as specified in Attachment II to
the Terms Agreement (the "Current FCC Licenses") or
approving the assignment for less than the maximum term
customarily issued, or with material conditions,
restrictions or qualifications other than as described
in the Prospectus.
(v) The execution, delivery and
performance of this Agreement, the issuance of the
Offered Securities to be sold by the Company, the sale
of the Offered Securities by the Company and the public
offering thereof by the Underwriters, do not and will
not violate any of the terms or provisions of, or
constitute a default under (A) the Federal
Communications Laws or (B) the FCC Licenses held by the
Company or any subsidiary of the Company.
(vi) There are no published or, to their
knowledge, unpublished FCC orders, decrees or rulings
outstanding against the Company or any of its
subsidiaries or any pending or threatened actions, suits
or proceedings against the Company or any of its
subsidiaries by or before the FCC that seek to revoke,
or if determined adversely to the Company or any of its
subsidiaries, would have a Material Adverse Effect or
would result in a revocation or non-renewal of any of
the FCC Licenses, other than as disclosed in the
Registration Statement or Prospectus.
[(h) The Representatives shall have received an opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware
counsel to the Company and the Radio One Trusts, to the effect that:]
[(i) Each Radio One Trust has been duly
created and is validly existing in good standing as a
business trust under the Delaware Business Trust Act;
and all filings required under the laws of the State of
Delaware with respect to the creation and valid
existence of the Trust as a business trust have been
made; and under the Trust Agreement and the Delaware
Business Trust Act, each Radio One Trust has the trust
power and authority to own property and to conduct its
business as described in the Prospectus and to enter
into and perform its obligations under the Terms
Agreement, the Trust Preferred Securities and the Trust
Common Securities.]
[(ii) Assuming due authorization, execution
and delivery of each of the Trust Agreements by the
Property Trustee and the Delaware Trustee, each of the
Trust Agreements constitutes a valid and legally binding
obligation of the Company and the Administrative
Trustees, and is enforceable against the Company and the
Administrative Trustees, in accordance with its terms,
subject, as to enforcement, to the effect upon such
Trust Agreement of the Bankruptcy Exceptions.]
[(iii) Assuming due authorization, execution
and delivery of each of the Guarantee Agreements by the
Guarantee Trustee, each of the Guarantee Agreements
19
constitutes a valid and legally binding obligation of
the Company, and is enforceable against the Company in
accordance with its terms, subject, as to enforcement,
to the effect upon such Guarantee Agreement of the
Bankruptcy Exceptions.]
[(iv) Under the Delaware Business Trust
Act and the Trust Agreement, each Radio One Trust has
the trust power and authority (i) to execute and deliver
and to perform its obligations under, the Terms
Agreement and (ii) to execute and deliver the Trust
Preferred Securities.]
[(v) The Trust Preferred Securities have
been duly authorized by the Trust Agreements and, when
issued and delivered against payment therefor as
described in the Prospectus, the Trust Preferred
Securities will be duly and validly issued and (subject
to the qualifications set forth in this paragraph) fully
paid and nonassessable undivided beneficial interests in
the assets of the applicable Radio One Trust; the
holders of the Trust Preferred Securities will be
entitled to the benefits of the Trust Agreements and, as
beneficial owners of each of the Radio One Trusts, will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for
profit organized under the General Corporation Law of
the State of Delaware (such counsel may note that the
holders of Offered Securities will be subject to the
withholding provisions of Section ___ of the Trust
Agreements and will be required to make payment or
provide indemnity or security in connection with taxes
or governmental charges arising from transfers or
exchanges of certificates for Offered Securities and the
issuance of replacement certificates for the Trust
Preferred Securities, and to provide security or
indemnity in connection with requests of or directions
to the Property Trustee to exercise its rights and
powers under the Trust Agreement, all as set forth in
the Trust Agreements).]
[(vi) Under the Delaware Business Trust
Act and the Trust Agreements, all necessary trust action
has been taken to duly authorize the execution and
delivery by each of the Radio One Trusts of this
Agreement and the performance by each of the Radio One
Trusts of its obligations thereunder.]
[(vii) Under the Delaware Business Trust
Act and the Trust Agreements, the issuance of the
Offered Securities is not subject to preemptive rights.]
[(viii) The issuance by each of the Radio
One Trusts of the Trust Preferred Securities, the sale
by the Radio One Trusts of the Trust Preferred
Securities, the execution, delivery and performance by
each of the Radio One Trusts of this Agreement, the
consummation by each of the Radio One Trusts of the
transactions contemplated by this Agreement, the
compliance by each of the Radio One Trusts with its
obligations thereunder and the performance by the
Company, as sponsor, of its obligations under the Trust
Agreements (A) do not violate (i) any of the provisions
of the [Certificate of Trust] or the Trust Agreement or
(ii) any applicable Delaware law or administrative
regulation and (B) do not require any consent, approval,
license, authorization or validation of, or filing or
registration with, any Delaware legislative,
administrative or regulatory body under the laws or
administrative regulations of the State of Delaware
(other that as may be required
20
under the securities or blue sky laws of the State of
Delaware, as to which such counsel need express no
opinion).]
[(ix) Assuming that each of the Radio One
Trusts derives no income from or connected with services
provided within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as
required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of
Delaware, the holders of the Offered Securities (other
than those holders of Offered Securities who reside or
are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of
Delaware solely as a result of their participation in
either of the Radio One Trusts, and each of the Radio
One Trusts will not be liable for any income tax imposed
by the State of Delaware.]
[(x) No authorization, approval, consent or
order of any Delaware court or Delaware governmental
authority or Delaware agency is required to be obtained
by each of the Radio One Trusts solely as a result of
the issuance and sale of the Trust Preferred
Securities.]
[(xi) The Terms Agreement (including the
provisions of this Agreement) has been duly authorized
by the Radio One Trusts.]
(i) The Representatives shall have received from Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇, LLP, counsel for the Underwriters, such
opinion or opinions, dated as of the Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities,
the Registration Statement, the Prospectus and other related matters as
the Representatives may require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(j) The Representatives shall have received from each officer,
director and certain other stockholders of the Company in form and
substance satisfactory to the Representatives a letter agreement
stating that such stockholder agrees not to offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any
shares of the Securities of the Company or securities convertible into
or exchangeable or exercisable for any shares of Securities, enter into
a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap hedge or other
arrangement for a period of time specified under "Blackout" in the
Terms Agreement, without, in each case, the prior written consent of
Underwriter. Any Securities received upon exercise of options granted
to the stockholder executing such Agreement will also be subject to
such Agreement.
(k) The Representatives shall have received a certificate,
dated as of the Closing Date, of the Chief Executive Officer and Chief
Financial Officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent
21
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(l) The Representatives shall have received a letter, dated
the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to the Closing Date for the purposes of this
subsection.
(m) The Representatives shall have received a letter, dated
the Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to the Closing Date for the purposes of
this subsection.
(n) The Representatives shall have received a certificate,
dated the Closing Date, of the Chief Financial Officer of the Company
which meets the requirements of subsection (c) of this Section, except
that the specified date referred to in such subsection will be a date
not more than three business days prior to the Closing Date for the
purposes of this subsection.
(o) The Representatives shall have received a certificate,
dated the Closing Date, of the Administrative Trustees of the Radio One
Trusts in which such trustees, to their knowledge, shall state that the
representations and warranties of the Radio One Trusts in this
Agreement are true and correct and that each of the Radio One Trusts
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company [and the Radio One
Trusts, jointly and severally,] will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or other person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in this Agreement, or in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus or preliminary prospectus supplement, 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 will reimburse each Underwriter and other
persons for any legal or other expenses reasonably incurred by such Underwriter
and other persons in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement.
22
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company [and the Radio One Trusts], their directors and officers
and each person, if any, who controls the Company [and the Radio One Trusts]
within the meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities to which the Company [or the Radio One Trusts] may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company [or the Radio One
Trusts] by such Underwriter through the Representatives, if any, specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company [or the Radio One Trusts] in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company [and the Radio One
Trusts] 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 [and the Radio One Trusts] bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
23
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company [and the Radio One Trusts] or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company [and the Radio One Trusts] under
this Section shall be in addition to any liability which the Company [or the
Radio One Trusts] may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company [and the Radio One Trusts], to each officer of the
Company [and the Radio One Trusts] who has signed the Registration Statement and
to each person, if any, who controls the Company [or the Radio One Trusts]
within the meaning of the Act.
(f) The Company agrees to indemnify each of the Radio One Trusts
against all loss, liability, claim, damage and expense whatsoever, as due from
each of the Radio One Trusts under Section 6(a).
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock [or Trust Preferred Securities]) of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount (if debt securities)
or number of shares (if preferred stock or Common Stock [or Trust Preferred
Securities]) of Offered Securities, the Lead Underwriter may make arrangements
satisfactory to the Company [and the Radio One Trusts] for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock [or Trust Preferred Securities]) of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock [or Trust Preferred Securities]) of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the Company
[and the Radio One Trusts] for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, the Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company [or the Radio One Trusts], except as provided in Section 8. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. If the Offered Securities are debt
securities or preferred stock [or Trust Preferred Securities], the respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts (if debt securities) or numbers of
shares
24
(if preferred stock [or Trust Preferred Securities]) of the Offered Securities
set forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company [, the Radio One Trusts] or their officers and of the several
Underwriters set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company[, each of the Radio One Trusts] or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
the Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company [and the Radio One Trusts] shall remain responsible for the expenses to
be paid or reimbursed by it pursuant to Section 4 and the respective obligations
of the Company[, the Radio One Trusts] and the Underwriters pursuant to Section
6 shall remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of the Terms Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 5(e),
the Company [and the Radio One Trusts] will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company [or the Radio One Trusts],
will be mailed, delivered or telegraphed and confirmed to it at Radio One, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company [, each
of the Radio One Trusts] and such Underwriters as are identified in the Terms
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company [and the Radio One Trusts] hereby submit[s] to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to the Terms Agreement (including the provisions of this Agreement) or
the transactions contemplated thereby.
25
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not
later than 9:00 A.M.,
New York time, on............................ , /(1)/)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
[Insert Name of Issuer]
c/o [Insert Name of Underwriter]
Gentlemen:
The undersigned hereby agrees to purchase from , a corporation
("Company"), and the Company agrees to sell to the undersigned, [If one delayed
closing, insert--as of the date hereof, for delivery on , ("Delivery Date"),]
[$]........[shares]
[principal amount] of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , and a Prospectus Supplement
dated , relating thereto, receipt of copies of which is hereby
acknowledged, at [ % of the principal amount thereof plus accrued interest, if
any,] [$ per share plus accrued dividends, if any], and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the [principal amounts]
[amounts] set forth below:
Principal Amount
----------------
Number
Delivery Date of Shares
------------- ---------
_________________________ _________
_________________________ _________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on each Delivery Date shall be made to the Company or its order in
Federal (same day) funds by certified or official bank check or wire transfer to
an account designated by the Company, at the office of at A.M. on
the such Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned for delivery on such Delivery Date in definitive
[If debt issue, insert--fully registered] form and in such
_____________________
/(1)/ Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
26
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on each Delivery Date shall be subject only to the
conditions that (1) investment in the Securities shall not at such Delivery Date
be prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject and (2) the Company shall have sold to the
Underwriters the total [principal amount] [number of shares] of the Securities
less the [principal amount] [number of shares] thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copies of the opinion[s] of counsel for the Company
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
27
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_________________________________________
(Name of Purchaser)
By ______________________________________
______________________________________
(Title of Signatory)
______________________________________
______________________________________
(Address of Purchaser)
Accepted, as of the above date.
[INSERT NAME OF ISSUER]
By ___________________
[Insert Title]
28