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Exhibit 1.2
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
20,250,000 Shares of Class A Common Stock
(Par Value $0.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
December, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
as Lead Manager of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Infinity Broadcasting Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in such capacity, the "Lead
Manager"), with respect to the issue and sale by the Company and the purchase by
the International Managers, acting severally and not jointly, of the respective
numbers of shares of Class A Common Stock, par value $0.01 per share, of the
Company (the "Class A Common Stock" and, together with the Class B Common Stock,
par value $0.01 per share, of the Company (the "Class B Common Stock"), the
"Common Stock") set forth in said Schedule A,
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aggregating 20,250,000 shares of Class A Common Stock (the "Initial
International Securities") and with respect to the grant by the Company to the
International Managers, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 3,037,500
additional shares of Class A Common Stock to cover over-allotments, if any. The
Initial International Securities to be purchased by the International Managers
and all or any part of the additional 3,037,500 shares of Class A Common Stock
subject to the option described in Section 2(b) hereof (the "International
Option Securities") are hereinafter called, collectively, the "International
Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 114,750,000 shares of Class A
Common Stock (collectively, the "Initial U.S. Securities") through arrangements
with certain underwriters in the United States and Canada (the "U.S.
Underwriters") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated is acting as representative (in such capacity, the "U.S.
Representative") and the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of an option to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 17,212,500 additional shares of Class A
Common Stock solely to cover over-allotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called, collectively, the "U.S. Securities". It is understood that
the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
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The Company understands that the International Managers propose to make a
public offering of the Securities as soon as the Lead Manager deems advisable
after this Agreement has been executed and delivered.
The Company and the International Managers agree that up to 5% of the
aggregate number of shares of the Initial Securities to be purchased by the
Underwriters (the "Reserved Securities") shall be reserved for offering and sale
by the Underwriters to certain eligible directors, officers and employees of the
Company and CBS Corporation and other persons associated with the Company or
with any director, officer or employee of the Company (collectively, the
"Eligible Reserved Share Participants"), as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. (the "NASD") and all other applicable laws, rules and
regulations. The Reserved Securities will be sold to the Eligible Reserved Share
Participants by the International Underwriters pursuant to this Agreement at the
initial public offering price set forth on Schedule B hereto. To the extent that
such Reserved Securities are not orally confirmed for purchase (assuming
reasonable efforts to contact such persons by the U.S. Underwriters in
accordance with the procedures set forth in the prospectus wrapper material
circulated to Eligible Reserved Share Participants in connection with the sale
of the Reserved Securities) by such Eligible Reserved Share Participants by the
end of the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering
contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-63727) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the Form
of U.S. Prospectus, except for the
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front cover and back cover pages and the information set forth under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form of
International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information or the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is referred to herein as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the final
Form of U.S. Prospectus in the forms first furnished to the Underwriters for use
in connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms "U.S.
Prospectus" and "International Prospectus" shall refer to the preliminary
International Prospectus dated November 12, 1998 (the "International Preliminary
Prospectus"), and the preliminary U.S. Prospectus dated November 12, 1998 (the
"U.S. Preliminary Prospectus"), respectively, each together with the applicable
Term Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the International Prospectus, the U.S. Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if
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any) referred to in Section 2(b) hereof, and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus wrapper
prepared in connection therewith, at their respective times of issuance
and at the Closing Time, complied and will comply in all material respects
with any applicable laws or regulations of foreign jurisdictions in which
the Prospectuses and such preliminary prospectuses, as amended or
supplemented, if applicable, are distributed in connection with the offer
and sale of Reserved Securities. Neither of the Prospectuses nor any
amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectuses or any amendments or supplements thereto were
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The
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representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Manager expressly for use in the Registration
Statement or the International Prospectus.
The International Preliminary Prospectus and the U.S. Preliminary
Prospectus filed as part of the Registration Statement and each
preliminary prospectus and the prospectuses filed as part of any
subsequent amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses delivered
to the Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
The Company has filed a registration statement pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
to register the Class A Common Stock, and such registration statement has
become effective.
(ii) Independent Accountants. The accountants who certified (A) the
combined financial statements of the Company and its consolidated
subsidiaries and supporting schedule, (B) the financial statements of CBS
Radio, Inc. (formerly American Radio Systems Corporation) ("CBS Radio")
and its consolidated subsidiaries and (C) the financial statements of Old
Infinity (as defined in the Registration Statement) and its consolidated
subsidiaries, in each case included in the Registration Statement are, in
each case, independent public accountants as required by the 1933 Act and
the 1933 Act Regulations.
(iii) Financial Statements. The combined financial statements of the
Company included in the Registration Statement and the Prospectuses,
together with the related schedule and notes (but not including the
information set forth in the Prospectuses under the captions "Prospectus
Summary-Summary Combined and Pro Forma Financial Data", "Capitalization"
and "Selected Combined and Pro Forma Financial Data"), present fairly in
all material respects the financial position of the Company, its
consolidated subsidiaries and the predecessor entities to the Company at
the dates indicated
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and the statements of earnings, changes in stockholders' equity
(deficiency) and cash flows of the Company, its consolidated subsidiaries
and the predecessor entities to the Company for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The financial statements
of CBS Radio included in the Registration Statement and the Prospectuses,
together with the related notes, present fairly in all material respects
the financial position of CBS Radio and its consolidated subsidiaries at
the dates indicated and the statements of operations, stockholders' equity
and cash flows of CBS Radio and its consolidated subsidiaries for the
periods specified; such financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved. The financial statements of Old Infinity included in the
Registration Statement and the Prospectuses, together with the related
notes, present fairly in all material respects the financial position of
Old Infinity and its consolidated subsidiaries at the dates indicated and
the statements of earnings, changes in stockholders' equity and cash flows
of Old Infinity and its consolidated subsidiaries for the periods
specified; such financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved. The
supporting schedule included in the Registration Statement presents fairly
in all material respects in conformity with GAAP the information required
to be stated therein. The selected financial data and the summary
financial information included in the Prospectuses present fairly in all
material respects the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements included
in the Registration Statement. The pro forma financial statements and the
related notes thereto included in the Registration Statement and the
Prospectuses present fairly in all material respects the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein or contemplated
thereby, (A) there has been no material adverse change in the condition,
financial or
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otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries which are material with respect to the Company
and its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, and has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification or good standing is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect and except for
jurisdictions not recognizing the legal concepts of good standing or
qualification.
(vi) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X (each
a "Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation and, in jurisdictions
where the legal concept exists, in good standing under the laws of the
jurisdiction of its incorporation or organization, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification or good standing is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect and except for
jurisdictions not recognizing the legal concepts of good standing or
qualification; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through its
subsidiaries (except for
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directors' qualifying shares), free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of any preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 21.1 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for the
conversion of all the outstanding shares of common stock, par value $1.00,
of the Company, into 700,000,000 shares of Class B Common Stock or
subsequent issuances, if any, pursuant to this Agreement, or pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company. At the Closing Time, the Company's
Restated Certificate of Incorporation will be effective.
(viii) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by
the Company.
(ix) Authorization and Description of Securities. Assuming the
Restated Certificate of Incorporation of the Company has become effective,
the International Securities and the U.S. Securities to be purchased by
the International Managers and the U.S. Underwriters, respectively, from
the Company have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, respectively, and,
when issued and delivered by the Company pursuant to this Agreement and in
the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable;
assuming the Restated Certificate of Incorporation of the Company has
become effective, the Common Stock conforms to all statements relating
thereto contained in the Prospectuses under the heading "Description of
Capital Stock" and such description conforms to the rights set
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forth in the instruments defining the same; no holder of the Securities
will be subject to personal liability by reason of being such a holder;
and the issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. (A) Neither the Company nor
any of its Subsidiaries is in violation of its charter or by-laws or in
default in the due performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its Subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and (B) the execution,
delivery and performance of this Agreement and the U.S. Purchase Agreement
and the consummation of the transactions contemplated in this Agreement,
the U.S. Purchase Agreement and in the Registration Statement (including
the Reorganization (as defined in note (1) to the Company's combined
financial statements included in the Prospectuses)), the issuance and sale
of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under this
Agreement and the U.S. Purchase Agreement have been duly authorized by all
necessary corporate action of the Company and do not and assuming
application of the proceeds from the sale of the Securities by the Company
as described in the Prospectuses under the caption "Use of Proceeds" will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its Subsidiaries pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that, individually or in the aggregate,
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any
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event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its Subsidiaries.
(xi) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent which may reasonably be expected to result in a
Material Adverse Effect.
(xii) Absence of Proceedings. Except as disclosed in the
Registration Statement, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign (including, but not limited to, the Federal
Communications Commission (the "FCC")) now pending or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement, or which is reasonably expected to result in a Material Adverse
Effect, or which is reasonably expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective properties or assets is the subject
that are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, considered in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect.
(xiii) Intercompany Agreements. Each of the Intercompany Agreement
and the Tax Sharing Agreement (each as defined in the Prospectuses) has
been duly authorized, executed and delivered by the Company and constitutes
the binding agreement of the Company, and is enforceable against the
Company in accordance with its terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable principles
and the discretion of courts in granting equitable remedies and except that
any rights to indemnify and contribution may be limited by Federal and
state securities laws and public policy considerations.
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(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
by the Company of the Securities under this Agreement and the U.S.
Purchase Agreement or the consummation of the transactions contemplated by
this Agreement and the U.S. Purchase Agreement, except (A) such as have
been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws or by the
rules and regulations of the NASD, (B) such as have been already obtained
or may be required under the Communications Act of 1934, as amended, (C)
such as have been obtained under the laws and regulations of jurisdictions
outside the United States in which the Reserved Securities are offered and
(D) the filing prior to the Closing Time of the Restated Certificate of
Incorporation of the Company with the Secretary of State of the State of
Delaware.
(xvi) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate Federal, state, local or foreign regulatory agencies or bodies
(including, without limitation, the FCC) necessary to conduct the business
now operated by them; the Company and its Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, for the maximum term
customarily issued, with no material conditions, restrictions or
qualifications except when the invalidity of such Governmen-
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tal Licenses or the failure of such Governmental Licenses to be in full
force and effect or the restrictions would not have a Material Adverse
Effect; and neither the Company nor any of its Subsidiaries has received
any notice from the FCC of the initiation of proceedings other than
release of public notices of filings with the FCC by interested parties
relating to the revocation, modification, non-renewal or suspension of any
such Governmental Licenses which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xvii) Title to Property. The Company and its Subsidiaries have good
and marketable title to all real property owned by the Company and its
Subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except such as (A) are
described in the Prospectuses or (B) would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
All of the leases and subleases material to the business of the Company
and its Subsidiaries, considered as one enterprise, and under which the
Company or any of its Subsidiaries holds properties described in the
Prospectuses, are in full force and effect except where the failure to be
in full force and effect would not reasonably be expected to have a
Material Adverse Effect.
(xviii) Tax Returns and Payment of Taxes. The Company and its
Subsidiaries have timely filed all Federal, state, local and foreign tax
returns that are required to be filed or have duly requested extensions
thereof and all such tax returns are true, correct and complete, except to
the extent that any failure to file or request an extension, or any
incorrectness would not, individually or in the aggregate, result in a
Material Adverse Effect. The Company and its Subsidiaries have timely paid
all taxes shown as due on such filed tax returns (including any related
assessments, fines or penalties), except to the extent that any such taxes
are being contested in good faith and by appropriate proceedings, or to
the extent that any failure to pay would not, individually or in the
aggregate, result in a Material Adverse Effect; and adequate charges,
accruals and reserves have been provided for in the financial statements
referred to in Section 1(a)(iii) above in accordance with GAAP in respect
of all Federal, state, local and foreign taxes for all periods as to which
the tax liability of the Company or any of its Subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities. The Company is not a "United States real property holding
corporation" within the meaning of Section 897(c)(3) of the Internal
Revenue Code of 1986, as amended.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application
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of the net proceeds therefrom as described in the Prospectuses will not
be, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended.
(xx) Insurance. 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; and neither the Company nor any of its
Subsidiaries has any reason to believe that any of them 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 except where the failure to renew or maintain such
coverage is not reasonably expected to result in a Material Adverse
Effect.
(xxi) Registration Rights. Except pursuant to the Intercompany
Agreement described under the caption "Relationship between the Company
and CBS -- Intercompany Agreement-Registration Rights" in the
Prospectuses, no person has registration rights or other similar rights to
have any securities of the Company registered by the Company pursuant to
the Registration Statement or otherwise registered by the Company under
the ▇▇▇▇ ▇▇▇.
(xxii) No Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M
under the 1934 Act.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company and delivered to the Global Coordinator, the Lead Manager or to counsel
for the International Managers shall be deemed a representation and warranty by
the Company to each International Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial
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International Securities set forth in Schedule A opposite the name of such
International Manager, plus any additional number of Initial International
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional 3,037,500 shares of
Class A Common Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company setting forth the number of
International Option Securities as to which the several International Managers
are then exercising such option and the time and date of payment and delivery
for such International Option Securities. Any such time and date of delivery for
the International Option Securities (a "Date of Delivery") shall be determined
by the Global Coordinator, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time
(as defined in Section 2(c) below). If the option is exercised as to all or any
portion of the International Option Securities, each of the International
Managers, acting severally and not jointly, will purchase that proportion of the
total number of International Option Securities then being purchased which the
number of Initial International Securities set forth in Schedule A opposite the
name of such International Manager bears to the total number of Initial
International Securities, subject in each case to such adjustments as the Global
Coordinator in its discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Cravath, Swaine & ▇▇▇▇▇, 825 Eighth Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after
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such date as shall be agreed upon by the Global Coordinator and the Company
(such time and date of payment and delivery being herein called the "Closing
Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International. Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Manager for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Manager, for
its account, to accept delivery of, receipt for and make payment of the purchase
price for, the Initial International Securities and the International Option
Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
and not as representative of the International Managers may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Securities or the International Option Securities, if any, to be purchased by
any International Manager whose funds have not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Manager may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Manager in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company hereby
confirms its engagement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated as, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated hereby confirms its agreement with the Company to
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render services as, a "qualified independent underwriter" within the meaning of
Rule 2720 of the Conduct Rules of the NASD with respect to the offering and sale
of the U.S. Securities. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, solely in its capacity as qualified independent underwriter
and not otherwise, is referred to herein as the "Independent Underwriter".
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
Subject to Section 3(b), the Company will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable period of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the International Managers shall reasonably object.
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(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Lead Manager and counsel for the International Managers, without
charge, one signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and one signed copy of all consents and certificates of
experts, and will also deliver to the Lead Manager, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the International Managers. The copies of
the Registration Statement and each amendment thereto furnished to the
International Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the U.S.
Purchase Agreement and the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the International Managers or for
the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will
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promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses comply with
such requirements, and the Company will furnish to the International Managers
such number of copies of such amendment or supplement as the International
Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its commercially
reasonable efforts, in cooperation with the International Managers, to qualify
the Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions (domestic or foreign) as the Global
Coordinator may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Class A Common Stock (including the Securities) on the New York Stock
Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator (i) offer, pledge, sell, contract to sell,
sell any option or
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contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of or otherwise dispose of or transfer any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) any shares of Common
Stock transferred to an affiliate of the Company or any CBS Party (as defined in
the Restated Certificate of Incorporation of the Company) which agrees to be
bound by the provisions of this Section 3(j), (B) the Securities to be sold
hereunder or under the U.S. Purchase Agreement, (C) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to the Company's
1998 Long-Term Incentive Plan, Executive Annual Incentive Plan and Savings Plans
referred to in the Prospectuses or (D) any shares of Class A Common Stock issued
in connection with any acquisitions to be made by the Company in the future in
consideration for shares of Class A Common Stock.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that the
Reserved Securities will be restricted as required by the NASD under NASD Rule
2110(d) and the NASD's interpretations thereof from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of this
Agreement. The Underwriters have notified the Company as to which persons will
need to be so restricted. At the request of the Global Coordinator, the Company
will direct the transfer agent to place a stop transfer restriction upon such
Reserved Securities for such period of time. Should the Company release, or seek
to release, from such restrictions any of the Reserved Securities that are
subject to resale restrictions in accordance with NASD rules, the Company agrees
to reimburse the Underwriters for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
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(m) Compliance with Rule 463. The Company will file with the Commission
such reports and report the use of proceeds of the sale of the Securities as may
be required pursuant to Rule 463 of the 1933 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed with the Commission and
of each amendment thereto, (ii) any printing of this Agreement, any Agreement
among Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Securities, (iii)
the preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters and the transfer of the Securities between the U.S.
Underwriters and the International Managers, (iv) the fees and disbursements of
the Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of the
terms of the sale of the Securities, (x) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange,
Inc. and (xi) all reasonable costs and expenses of the Underwriters, including
the reasonable fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Manager in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
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out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
Subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the Lead Manager
shall have received the favorable opinion and statement, dated as of the Closing
Time, of each of (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., and (ii) Cravath, Swaine & ▇▇▇▇▇,
counsel for the Company, together with signed or reproduced copies of such
letter for each of the other International Managers in each case in the form set
forth in Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4, as applicable, hereto and to such
further effect as counsel to the International Managers may reasonably request.
(c) Opinion of Regulatory Counsel for Company. At the Closing Time, the
Lead Manager shall have received the favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PLLC, special regulatory counsel for the
Company, together with signed or reproduced copies of such letter for each of
the other International Managers in the form set forth in Exhibit B hereto and
to such further effect as counsel to the International Managers may reasonably
request.
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(d) Opinion of Counsel for International Managers. At the Closing Time,
the Lead Manager shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
International Managers, together with signed or reproduced copies of such letter
for each of the other International Managers in form and substance satisfactory
to the Lead Manager. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the Lead
Manager. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its Subsidiaries and certificates of
public officials.
(e) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Lead Manager
shall have received a certificate of the Company, signed by any one of the
Chairman of the Board, the President, Chief Executive Officer or an Executive
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii) the Company
has complied with all agreements set forth herein or in the U.S. Purchase
Agreement or contemplated hereby or thereby and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to the best of their knowledge, no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Manager shall have received a letter dated such date, in
form and substance satisfactory to the Lead Manager, together with signed or
reproduced copies of such letter for each of the other International Managers
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters from KPMG Peat Marwick LLP with
respect to (i) the combined financial statements of the Company and its
consolidated subsidiaries and
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certain financial information contained in the Registration Statement and the
Prospectuses, (ii) the financial statements of CBS Radio and its consolidated
subsidiaries and certain financial information contained in the Registration
Statement and the Prospectuses and (iii) the financial statements of Old
Infinity and its consolidated subsidiaries contained in the Registration
Statement and the Prospectuses.
(g) Bring-down Comfort Letter. At the Closing Time, the Lead Manager shall
have received a letter from KPMG Peat Marwick LLP, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished by
them, pursuant to subsection (f) of this Section , except that the "specified
date" referred to in such letter shall be a date not more than three business
days prior to the Closing Time.
(h) Approval of Listing. At the Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, Inc., subject only to
official notice of issuance.
(i) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(j) Lock-up Agreements. At the date of this Agreement, the Lead Manager
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule C hereto.
(k) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(l) Reorganization. At or prior to the Closing Time, the Company shall
have effected the Reorganization (as defined and described in note (1) to the
Company's combined financial statements included in the Prospectuses).
(m) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option granted in Section
2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true
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and correct as of each Date of Delivery and, at the relevant Date of Delivery,
the Lead Manager shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Company, signed by any one of the Chairman of Board, the
President, Chief Executive Officer or an Executive Vice President of the
Company and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(e) hereof remains true and correct as of such Date
of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion and
statement of each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. and Cravath, Swaine & ▇▇▇▇▇,
counsel for the Company, in each case, dated such Date of Delivery,
relating to the International Option Securities to be purchased on such
Date of Delivery and otherwise in the same form as the opinion and
statement required by Section 5(b) hereof.
(iii) Opinion of Regulatory Counsel for Company. The favorable
opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PLLC, special regulatory counsel
for the Company, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(iv) Opinion of Counsel for International Managers. The favorable
opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(v) Bring-down Comfort Letter. A letter from KPMG Peat Marwick LLP,
in form and substance satisfactory to the Lead Manager and dated such Date
of Delivery, substantially in the same form and substance as the letter
furnished by them to the Lead Manager pursuant to Section 5(g) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
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(n) Additional Documents. At the Closing Time and at each Date of
Delivery, if any, counsel for the International Managers shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
International Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the International Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the Lead
Manager and counsel for the International Managers.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement (or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
International Option Securities) may be terminated by the Lead Manager by notice
to the Company at any time at or prior to the Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. (1) The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in
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order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any
applicable laws or regulations of foreign jurisdictions where Reserved
Securities have been offered and (B) any untrue statement or alleged
untrue statement of a material fact included in the supplement or
prospectus wrapper material distributed in the United States, the United
Kingdom or Singapore in connection with the reservation and sale of the
Reserved Securities to Eligible Reserved Share Participants or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, when considered in conjunction with the
Prospectuses or preliminary prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation
of the nature referred to in Section 6(a)(1)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission or in connection with any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof, to the extent that any such expense is not
paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Global Coordinator expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434
27
28
Information, if applicable, or any preliminary prospectus or the International.
Prospectus (or any amendment or supplement thereto); and provided, further,
however, that the Company shall not be liable to any indemnified party with
respect to any preliminary prospectus (or supplement thereto) if the
Prospectuses corrected any such untrue statement or omission, was delivered to
such indemnified party (sufficiently in advance of the Closing Date and in
sufficient quantity to allow for distribution by the Closing Date) and such
indemnified party failed to furnish a copy of the applicable Prospectus in
contravention of a requirement of applicable law at or prior to the written
confirmation of the sale of Securities to the applicable purchaser.
(2) In addition to and without limitation of the Company's obligations to
indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇ as an Underwriter, the Company also agrees to indemnify
and hold harmless the Independent Underwriter and each person, if any, who
controls the Independent Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, from and against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, incurred as a
result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the NASD in connection with the offering of the International Securities, except
for any losses, claims, damages, liabilities and judgments found in a final
judgment by a court to have resulted from the Independent Underwriter's or such
controlling person's willful misconduct or gross negligence.
(b) Indemnification of Company, Directors and Officers. Each International
Manager severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section , as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
international prospectus or the International Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such International Manager through the Lead Manager
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
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(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances; provided, that, if indemnity is
sought pursuant to Section 6(a)(2), then, in addition to the fees and expenses
of such counsel for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one counsel (in
addition to any local counsel) separate from its own counsel and that of the
other indemnified parties for the Independent Underwriter in its capacity as a
"qualified independent underwriter" and all persons, if any, who control the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of 1934 Act in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances if, in the reasonable judgment of the Independent
Underwriter, there may exist a conflict of interest between the Independent
Underwriter and the other indemnified parties. Any such separate counsel for the
Independent Underwriter and such control persons of the Independent Underwriter
shall be designated in writing by the Independent Underwriter. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and
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30
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a
request, in writing to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of Eligible Reserved Share Participants to
pay for and accept delivery of Reserved Securities which, by the end of the
first business day following the date of this Agreement, were subject to a
properly confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
International Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 of the
International Managers on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof, which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
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31
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
Initial International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof.
The Company and the U.S. Underwriters agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇ will not
receive any additional benefits hereunder for serving as the Independent
Underwriter in connection with the offering and sale of the U.S. Securities.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such
31
32
International Manager has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International.
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company, and shall survive delivery of the International
Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Manager may terminate this Agreement,
by notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
32
33
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Manager, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in the
Class A Common Stock has been suspended or materially limited by the Commission
or the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at the Closing Time or a Date
of Delivery to purchase the Initial U.S. Securities or the International Option
Securities, respectively, which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Lead Manager shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however, the Lead
Manager shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers; or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International. Securities to be purchased on such date, this Agreement (or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the International Option Securities to be purchased and sold on such Date of
Delivery) shall, upon prior
33
34
notice to the Company of such fact, terminate without liability on the part of
any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time and which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Manager or
the Company shall have the right to postpone the Closing Time or the relevant
Date of Delivery, as the case may be, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the term
"International Manager" includes any person substituted for an International
Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, telecopied
(which is confirmed), sent by overnight courier (providing proof of delivery) or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager at ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director; and notices to the Company shall
be directed to it at Infinity Broadcasting Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the International Managers and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their respective heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
International Managers and the Company and their respective successors, and such
controlling persons and officers and directors and their respective heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No
34
35
purchaser of Securities from any International Manager shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
35
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING
CORPORATION
By:________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:__________________________________
Authorized Signatory
For themselves and as Lead Manager of
the other International Managers named in
Schedule A hereto.
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37
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International..............................
BT Alex. ▇▇▇▇▇ International, a division of Bankers Trust
International PLC........................................
▇▇▇▇▇▇▇ Sachs International..............................
▇▇▇▇▇ & Company Incorporated.............................
Credit Suisse First Boston (Europe) Limited..............
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International...............
▇▇▇▇▇▇ Brothers International (Europe)...................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited...............
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC....................
Salomon Brothers International Limited...................
Bear, ▇▇▇▇▇▇▇ International Limited......................
Deutsche Bank AG London..................................
ING Barings..............................................
Lazard Capital Markets...................................
PaineWebber International (U.K.) Ltd.....................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & Co., Inc..........................
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited..........................
▇▇ ▇▇▇▇▇ International L.P...............................
ABN AMRO ▇▇▇▇▇▇▇▇▇.......................................
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc........................
Chase Manhattan International Limited....................
▇.▇. ▇▇▇▇▇▇ Securities Ltd...............................
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc......................
----------
Total.................................................... 20,250,000
==========
Sch A - 1
38
SCHEDULE B
Infinity Broadcasting Corporation
20,250,000 Shares of Class A Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price of the Securities, determined as
provided in Section 2, shall be $|X| per share of Class A Common Stock.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $|X|, being an amount equal to the initial public
offering price set forth above less $|X| per share; provided that the purchase
price per share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial International Securities but not payable on
the International Option Securities.
Sch B - 1
39
SCHEDULE C
List of persons and entities
subject to lock-up
1. CBS Corporation, a Pennsylvania corporation
2. CBS Broadcasting Inc., a New York corporation
3. Mr. ▇▇▇ ▇▇▇▇▇▇▇▇
Sch C - 1
40
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ.,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) Each Subsidiary is a corporation validly existing and in good standing
under the laws of its jurisdiction of incorporation or other organization
(except for jurisdictions not recognizing the legal concept of good standing),
with full corporate or other power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectuses.
(ii) Each of the Company and each Subsidiary is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, other than jurisdictions in which
the failure so to qualify would not have a Material Adverse Effect and other
than jurisdictions not recognizing the legal concepts of good standing or
qualification.
(iii) Except as disclosed in the Registration Statement, all of the issued
and outstanding shares of capital stock of, each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, and, are owned,
directly or through Subsidiaries (except for directors' qualifying shares or
similar interests) by the Company.
(iv) To the knowledge of such counsel, (a) there are not any pending or
threatened actions, suits, proceedings, investigations or inquiries before any
court or governmental agency or authority or any arbitrator against the Company
or any subsidiary or a character required to be disclosed in the Registration
Statement or Prospectuses which is not adequately disclosed as required, and (b)
there is not contract, indenture, mortgage, loan agreement, not, lease or other
document of a character required to be described in the Registration Statement
or Prospectuses, or to be filed as an exhibit, which is not described or filed
as required.
(v) To the knowledge of such counsel, holders of outstanding shares of
capital stock of any Subsidiary are not entitled to statutory preemptive rights
or preemptive rights under their respective charter or by-laws in connection
with the issuance of the Securities, and holders of outstanding shares of
capital stock of the
A-1
41
Company or any Subsidiary are not entitled to any contractual preemptive rights
in connection with the issuance of the Securities.
(vi) To the knowledge of such counsel, except as disclosed in the
Registration Statement and the Prospectuses, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the ▇▇▇▇ ▇▇▇.
(vii) To the knowledge of such counsel, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement, except that such counsel expresses no opinion as to the
covenants referred to under the heading "Risk Factors-Significant Subsidiary
Debt Covenants" in the Registration Statement.
(viii) None of the issue and sale of the Securities, the consummation of
any other of the transaction contemplated by the Purchase Agreements, the
performance of the terms of the Purchase Agreements or the application of the
proceeds of the sale of the Securities with respect to the payment of the CBS
Note (A) will conflict with, result in a breach of, or constitute a default
under, the Restated Certificate of Incorporation or Restated Bylaws of the
Company, or the terms of any indenture or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or bound and listed as an
exhibit to the Registration Statement, or described under the heading
"Description of Indebtedness" in the Registration Statement, except that, in
connection with the offering and sale of the Securities, CBS Radio, Inc. will be
required to make an offer to repurchase all of its existing indebtedness issued
pursuant to the CBS Indentures or (B) will contravene any law, rule or
regulation of the United States, the State of New York or the General
Corporation Law of the State of Delaware applicable to the Company or any of its
Subsidiaries, or, to the knowledge of such counsel, any order or decree of any
court or government agency or instrumentality. In connection with the foregoing,
such counsel points out that certain of the agreements referred to in clause (i)
above are or may be governed by laws other than the laws of the State of New
York. For purposed of the opinion expressed in this paragraph, however, such
counsel has assumed that all such agreements are governed by and would be
interpreted in accordance with the laws of the State of New York.
A-2
42
Exhibit A-2
FORM OF STATEMENT OF ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ESQ. TO BE DELIVERED
PURSUANT TO SECTION 5(b)
In that capacity, I participated in conferences with certain
officers of, and with the accountants and counsel for, the Company concerning
the preparation of (a) the Registration Statement on Form S-1 (Registration No.
333-63727) filed with the Securities and Exchange Commission (the "Commission")
on September 18, 1998, as amended by Amendment No. 1 thereto filed with the
Commission on November 2, 1998, Amendment No.2 thereto filed with the Commission
on November 12, 1998, and Amendment No. 4 thereto filed with the Commission on
[ ], 1998 (such Registration Statement, as amended being hereinafter
called the "Registration Statement"), for registration of the Shares under the
Securities Act of 1933 (the "Securities Act"); and (b) the final U.S. Prospectus
and the final International Prospectus, each dated December [ ], 1998, relating
to the Shares, filed with the Commission pursuant to Rule 424 (b) of the General
Rules and Regulations under the Securities Act (the "Prospectus"). However, I
have not investigated the completeness or accuracy of the Registration Statement
or the Prospectus with respect to matters related to the Communications Act of
1934, which matters have been addressed in the opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, PLLC, special regulatory counsel to the Company.
Although I have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectuses, I do not assume responsibility for the accuracy or completeness of
the statements made in the Registration Statement and the Prospectus. Subject to
the foregoing, I hereby advise you that my work in connection with this matter
did not disclose any information that gave us reason to believe that: (i) the
Registration Statement at the time the Registration Statement became effective,
or the Prospectuses, as of the date hereof, in each case except the financial
statements and other information of an accounting financial nature included
therein, as to which I do not express any view, was not appropriately responsive
in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, or (ii) the
Registration Statement at the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that either of the
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Prospectuses, at the date hereof, includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case except for the financial statements and other
information of an accounting or financial nature included therein, as to which I
do not express any view).
A-4
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Exhibit A-3
FORM OF OPINION OF COMPANY
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly organized and is a corporation validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectuses and to enter into and
perform its obligations under the Purchase Agreements. The opinion in this
paragraph (i) relating to the valid existence and good standing of the Company
is based solely on a certificate from the Secretary of State of the State of
Delaware.
(ii) The Company's authorized equity capitalization is as set forth in the
Prospectuses in the column entitled "Actual" under the caption "Capitalization".
The Securities conform in all material respects to the description thereof
contained in the Registration Statement and the Prospectuses. The Securities
have been duly and validly authorized, and, when issued and delivered to and
paid for by the Underwriters pursuant to the Purchase Agreements, will be
validly issued, fully paid and nonassessable. The Class B Common Stock has been
duly and validly authorized, and is validly issued, fully paid and
nonassessable. The certificates for the Securities are in valid and sufficient
form. Holders of outstanding shares of Class A Common Stock and Class B Common
Stock of the Company are not entitled to statutory preemptive rights or
preemptive rights under the Company's charter or by-laws in connection with the
issuance of the Securities.
(iii) Each of the Purchase Agreements has been duly authorized, executed
and delivered by the Company.
(iv) No authorization, approval or other action by, and no notice to,
consent of, order of or filing with, any United States Federal, New York or, to
the extent required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the Purchase
Agreements, except (A) such as have been obtained under the 1933 Act, the 1934
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and (B) such as have
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been or may be required under the Communications Act of 1934, as amended, and
the rules, regulations and administrative orders promulgated thereunder.
(v) None of the issue and sale of the Securities, the consummation of any
other of the transactions contemplated by the Purchase Agreements or the
performance of the terms of the Purchase Agreements or the application of the
proceeds of the sale of the Securities (A) will conflict with, result in a
breach of, or constitute a default under, the Restated Certificate of
Incorporation or Restate By-laws of the Company or (B) will contravene any law,
rule or regulation of the United States, the State of New York or the General
Corporation Law of the State of Delaware applicable to the Company or any of its
Subsidiaries, or, to our knowledge, any order or decree of any court or
government agency or instrumentality.
(vi) The Company is not an "investment company" or an entity "controlled"
by an "investment company", as such terms are defined in, or subject to
regulation under, the 1940 Act.
(vii) The Registration Statement became effective under the 1933 Act on
December [ ], 1998, and thereupon the offering of the Securities as contemplated
by the Prospectuses became registered under the 1933 Act and, to knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for the purpose have been instituted or are pending or
contemplated under the 1933 Act.
(viii)Each of the Intercompany Agreement and the Tax Sharing Agreement has
been duly authorized, executed and delivered by the Company, and constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject as to enforcement of remedies to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect, to general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law)
and to the discretion of courts in granting equitable remedies, and except that
any rights to indemnity and contribution may be limited by Federal and state
securities laws and public policy considerations.
(ix) The statements made in the Prospectuses under the caption "Certain
United States Tax Consequences to Non-United States Holder", insofar as they
purport to describe the material tax consequences of an investment in the Class
A Common Stock, fairly summarize the matters therein described.
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46
In rendering this opinion, we have assumed, without independent
investigation, the correctness of, and take no responsibility for, the opinion
dated the date hereof of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, PLLC, special regulatory
counsel for the Company, delivered to you pursuant to Section 5(c) of each
Purchase Agreement, as to all matters of law covered therein relating to the
Communications Act of 1934, as amended, and the rules, regulations and
administrative orders promulgated thereunder, and we express no opinion with
respect to such matters.
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Exhibit A-4
FORM OF STATEMENT OF COMPANY'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
In that capacity, we participated in conferences with certain
officers of, and with the accountants and counsel for, the Company concerning
the preparation of (a) the Registration Statement on Form S-1 (Registration No.
333-63727) filed with the Securities and Exchange Commission (the "Commission")
on September 18, 1998, as amended by Amendment No. 1 thereto filed with the
Commission on November 2, 1998, Amendment No.2 thereto filed with the Commission
on November 12, 1998, and Amendment No. 4 thereto filed with the Commission on
[ ], 1998 (such Registration Statement, as amended being hereinafter
called the "Registration Statement"), for registration of the Shares under the
Securities Act of 1933 (the "Securities Act"); and (b) the final U.S. Prospectus
and the final International Prospectus, each dated December [ ], 1998, relating
to the Shares, filed with the Commission pursuant to Rule 424 (b) of the General
Rules and Regulations under the Securities Act (the "Prospectus"). However, we
have not investigated the completeness or accuracy of the Registration Statement
or the Prospectus with respect to matters related to the Communications Act of
1934, which matters have been addressed in the opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, PLLC, special regulatory counsel to the Company.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and the
Prospectuses, the limitations inherent in the role of outside counsel are such
that we cannot and do not assume responsibility for the accuracy or completeness
of the statements made in the Registration Statement and Prospectuses except
insofar as such statements relate to us and except to the extent set forth in
the first two sentences of paragraph (iii), and paragraph (ix) of our opinion to
you dated the date hereof. Subject to the foregoing, we hereby advise you that
our work in connection with this matter did not disclose any information that
gave us reason to believe that: (A) the Registration Statement at the time the
Registration Statement became effective, or the Prospectuses, as of the date
hereof, in each case except the financial statements and other information of an
accounting financial nature included therein, as to which we do not express any
view,
A-8
48
was not appropriately responsive in all material respects to the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder, or (B) the Registration Statement at the time the Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that either of the Prospectuses,
at the date hereof, includes an untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (in each
case except for the financial statements and other information of an accounting
or financial nature included therein, as to which we do not express any view).
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Exhibit B
FORM OF OPINION OF COMPANY'S SPECIAL REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The information in the Prospectuses under the captions "Risk
Factors-Government Regulation" and "Business-Government Regulation", to the
extent that such information constitutes a summary of federal communications law
and the rules, regulations and administrative orders promulgated or proposed for
promulgation thereunder, has been reviewed by such counsel and is correct in all
material respects.
(ii) Except as previously made or obtained, as the case may be, no filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of any court or administrative agency or authority is
necessary or required under the Communications Act of 1934, as amended, and the
rules, regulations and administrative orders promulgated thereunder
(collectively, the "Federal Communications Laws") in connection with the
execution or delivery by the Company of the Purchase Agreements, the performance
by the Company of the transactions contemplated thereby or the offering,
issuance or sale of the Securities, as applicable.
(iii) The Company and the subsidiaries are the holders of the Licenses
issued by the FCC listed in an attachment to such opinion (the "FCC Licenses"),
all of which are in full force and effect for the maximum license term
customarily issued, with no material conditions, restrictions or qualifications
other than as set forth on the face of authorizations evidencing the FCC
Licenses or as described in the Registration Statement and the Prospectuses.
(iv) To the best knowledge of such counsel, there is no unsatisfied
adverse FCC order, decree or ruling outstanding against the Company or any of
its Subsidiaries which would have a Material Adverse Effect, except as set forth
in the Registration Statement and the Prospectuses.
(v) To the best knowledge of such counsel, there is no proceeding
(including any rulemaking proceeding), complaint or investigation against the
Company or any of its Subsidiaries or in respect of any of the FCC Licenses
pending
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50
or threatened before the FCC which we believe will result in a Material Adverse
Effect except as set forth in the Registration Statement and the Prospectuses.
(vi) To the best knowledge of such counsel, no action, suit, proceeding or
investigation is pending or threatened, and no judgment, order, decree or ruling
has been entered, against the Company or any of its Subsidiaries that gives us
reason to believe that any of the FCC Licenses will be revoked or not renewed in
the ordinary course.
The statements made under the captions "Risk Factors - Government Regulation",
"Business - Competition", "Business - Government Regulation", and "Description
of Capital Stock - Foreign Ownership Restrictions" in the Prospectuses, taken
together, insofar as they are, or refer to, statements of law, legal conclusions
or summaries relating to the Communications Act or the rules or regulations of
the FCC, fairly reflect the provisions purported to be summarized as material to
the Company and are in all material respects correct; and such counsel has no
reason to believe that such statements as of the time the Registration Statement
or any amendment became effective, at the time the Prospectuses were issued, at
the time any amendment or supplement thereto was issued or at the Closing Time,
contain any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make such statements, in light of the circumstances
under which they were made, not misleading.
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51
FORM OF LOCK-UP LETTER
Exhibit C
December , 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
as Lead Manager of the several
International Managers to be named in the
within-mentioned Purchase Agreement
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Infinity Broadcasting Corporation
Ladies and Gentlemen:
As of the closing of the Offering referred to below, the undersigned will
be the beneficial owner of - shares of Class A Common Stock, par value $.01 per
share (the "Class A Common Stock") and - shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock" and, together with the Class A
Common Stock", the "Common Stock") of Infinity Broadcasting Corporation (the
"Company"), a Delaware corporation. The undersigned understands that the Company
has filed a Registration Statement on Form S-1 (the "Registration Statement")
with the Securities and Exchange Commission for the registration of 155,250,000
shares of Class A Common Stock (the "Offering"). The undersigned further
understands that you are contemplating entering into an International Purchase
Agreement and a U.S. Purchase Agreement (together, the "Purchase Agreements")
with the Company is connection with the Offering. All terms not otherwise
defined herein shall have the same meanings as in the Purchase Agreements.
In recognition of the benefit that the Offering will confer upon the
undersigned as a stockholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreements
(the "Underwriters") that, during a period of 180 days from the date of the
Purchase Agreements, the
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undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
transfer or dispose of any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. The foregoing sentence shall not apply to any
shares of Common Stock transferred to an affiliate of the Company or any CBS
Party (as defined in the Restated Certificate of Incorporation of the Company)
which agrees to be bound by the provisions of this agreement.
The undersigned, whether or not participating in the Offering, confirms
that he, she or it understands that the Underwriters and the Company will rely
upon the representations set forth in this agreement in proceeding with the
Offering. This agreement shall be binding on the undersigned and his, her or its
respective successors, liens, personal representatives and assigns.
Very truly yours,
----------------------------------------
Name:
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