EXHIBIT 1.1
46,000,000 Shares
ENTRAVISION COMMUNICATIONS CORPORATION
Class A Common Stock
UNDERWRITING AGREEMENT
----------------------
July __, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
As representatives of the
several Underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
ENTRAVISION COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), proposes to issue and sell ____________ shares of its Class A Common
Stock, $0.0001 par value per share (the "Firm Shares"), to the several
Underwriters named in Schedule I hereto (the "Underwriters"). ▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ"), Credit Suisse First Boston
Corporation and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall act as
representatives (the "Representatives") of the several Underwriters. The
Company also proposes to issue and sell to the several Underwriters not more
than an additional ___________ shares of its Class A Common Stock, $0.0001 par
value per share (the "Additional Shares"), if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter referred to collectively as the "Shares". The shares of Class A
Common Stock of the Company to be outstanding after giving effect to the sales
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contemplated hereby are hereinafter referred to as the "Class A Common Stock".
The Company has previously issued, and there are outstanding as of the date
hereof, shares of its Class B Common Stock and of its Class C Common Stock, none
of which is being sold pursuant to this Agreement. The Class A Common Stock,
the Class B Common Stock and the Class C Common Stock are referred to
collectively herein as the "Common Stock."
It is understood that, prior to the Closing Date (as defined in Section 4
below), the Company and certain of its affiliates will consummate certain
transactions (the "Reorganization Transactions") contemplated by that certain
Exchange Agreement dated as of April 19, 2000, and other related agreements
(collectively, the "Reorganization Agreements") in substantially the form
provided to the Representatives.
Section 1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1, including a prospectus, relating
to the Shares. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "Registration Statement"; and the
prospectus in the form first used to confirm sales of Shares are hereinafter
referred to as the "Prospectus." If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Class A Common Stock (a
"Rule 462(b) Registration Statement"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $______ (the "Purchase Price"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, any or all of the Additional Shares from
the Company, at the Purchase Price. Additional Shares may be purchased solely
for the purpose of covering over-allotments made in connection with the offering
of
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the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part from time to time by giving written notice
thereof to the Company within 30 days after the date of this Agreement. The
Representatives shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If less than all of the Additional Shares are
to be purchased, (i) the Representatives shall determine in their sole
discretion the number, if any, of Additional Shares to be purchased from the
Company (ii) each Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional Company Shares, if any are purchased
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) which bears the same proportion to the total
number of Additional Shares to be purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Shares.
[Other than the sale of ___________ shares of Common Stock to Univision
Communications Inc. as described in the Prospectus,] [t]he Company hereby agrees
not to (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option (other than
to outside directors), right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. Notwithstanding
the foregoing, during such period the Company may issue shares of Class A Common
Stock (i) upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof or (ii) to be used as consideration for
the completion of acquisitions as to which definitive agreements have been
entered into as of the date hereof. Other than registration statements on Form
S-8 for securities issued pursuant to an employee benefit plan, the Company also
agrees not to file any registration statement with respect to any shares of
Class A Common Stock or any securities convertible into or exercisable or
exchangeable for Class A Common Stock for a period of 180 days after the date of
the Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation. The Company shall, prior to or concurrently with the
execution of this Agreement, deliver an
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agreement executed by (i) each of the directors and officers of the Company and
(ii) each stockholder listed on Annex I hereto to the effect that such person
will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Corporation, (A) engage in
any of the transactions described in the first sentence of this paragraph or (B)
make any demand for, or exercise any right with respect to, the registration of
any shares of Class A Common Stock or any securities convertible into or
exercisable or exchangeable for Class A Common Stock.
As part of the offering contemplated by this Agreement, DLJ has agreed to
reserve, of the Firm Shares set forth opposite its name on Schedule I to this
Agreement, up to 2,000,000 shares of the Company's Class A Common Stock, for
sale to the Company's employees, officers, and directors and other parties
associated with the Company (collectively, "Participants"), as set forth in the
Prospectus under the heading "Underwriting" (the "Directed Share Program"). The
shares of the Company's Class A Common Stock to be sold by DLJ pursuant to the
Directed Share Program (the "Directed Shares") will be sold by DLJ pursuant to
this Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by the end of the business day on
which this Agreement is executed will be offered to the public by DLJ as set
forth in the Prospectus.
Section 3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of the Shares as soon after
the execution and delivery of this Agreement as in your judgment is advisable
and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus.
Section 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Company, with any transfer
taxes thereon duly paid by the Company, to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation through the facilities of The Depository Trust Company
("DTC"), for the respective accounts of the several Underwriters, against
payment to or for the account of the Company of the Purchase Price therefor by
wire transfer of Federal or other funds immediately available in New York City.
The certificate(s) representing the Shares shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date or the applicable Option Closing Date, as the case may
be, at the office of DTC or its designated custodian (the "Designated Office").
The time and date of delivery and payment for the Firm Shares shall be 9:00
A.M., New York City time, on
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August 4, 2000 or such other time on the same or such other date as ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and the Company shall agree in writing.
The time and date of delivery for the Firm Shares are hereinafter referred to as
the "Closing Date". The time and date of delivery and payment for any Additional
Shares to be purchased by the Underwriters shall be 9:00 A.M., New York City
time, on the date specified in the applicable exercise notice given by you
pursuant to Section 2 or such other time on the same or such other date as
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and the Company shall agree
in writing. The time and date of delivery for any Additional Shares are
hereinafter referred to as an "Option Closing Date".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement
shall be delivered at the offices of O'Melveny & ▇▇▇▇▇ LLP, 1999 Avenue of the
Stars, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and the Shares shall be
delivered at the Designated Office, all on the Closing Date or such Option
Closing Date, as the case may be.
Section 5. Agreements of the Company.
The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you five (5) signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
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number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other
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documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Prospectus, the Registration Statement, any
preliminary prospectus or the offering or sale of the Shares, in any
jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending [July
__, 2001] that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Class A Common Stock or
furnished to or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed and such other publicly
available information concerning the Company and its subsidiaries as you may
reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Company's obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration and
delivery of the Shares under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares, (iv) all
expenses in connection with the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the several states and
all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Shares by the National Association
of Securities Dealers, Inc., (vi) all fees and expenses in
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connection with the preparation and filing of the registration statement on Form
8-A relating to the Class A Common Stock and all costs and expenses incident to
the listing of the Shares on the New York Stock Exchange, (vii) the cost of
printing certificates representing the Shares, (viii) the costs and charges of
any transfer agent, registrar and/or depositary, and (ix) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section.
(j) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange and to maintain the listing of the Shares
on the New York Stock Exchange for a period of three years after the date of
this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(m) in connection with the Directed Share Program, to ensure that the
Directed Shares will be restricted to the extent required by the National
Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement. DLJ will
notify the Company as to which Participants will need to be so restricted. The
Company will direct the removal of such transfer restrictions upon the
expiration of such period of time.
(n) to pay all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program.
Furthermore, the Company covenants with DLJ that the Company will comply with
all applicable securities and other applicable laws, rules and regulations in
each foreign jurisdiction in which the Directed Shares are offered in connection
with the Directed Share Program.
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Section 6. Representations and Warranties of the Company.
The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement),
when it became effective, did not contain and, as amended, if applicable, will
not contain any 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, (ii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act, and are not
required to include or describe, by virtue of any doctrine of integration or
otherwise, any Common Stock other than the shares of Class A Common Stock so
included and described, (iii) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement and any amendments thereto, when they become
effective (A) will not contain any 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 (B) will comply in all material respects
with the Act and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with the
Act, and did 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, in the light of the circumstances under which they were
made, not
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misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in any preliminary prospectus
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries, and each of Z-Spanish Media
Corporation ("Z-Spanish") and its subsidiaries, has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, proforma for the
acquisition by the Company of Z- Spanish, taken as a whole.
(e) Except as set forth on Schedule 6A(e), there are no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or liens granted or issued by the Company or any of its
subsidiaries relating to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of the Company or any of its
subsidiaries, or of Z-Spanish or any of its subsidiaries, except as otherwise
disclosed in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company have been,
or will be in connection with the consummation of the Reorganization
Transactions, duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights; and the Shares
to be issued and sold by the Company have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the Company's
subsidiaries, and of Z-Spanish and each of its subsidiaries, have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company or, in the case of Z-Spanish and each of its subsidiaries,
will, on the closing date of the Z-Spanish acquisition be owned by the Company,
directly or indirectly through one or more subsidiaries, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any nature,
except as otherwise disclosed in the Prospectus.
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(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) None of the Company, any of its subsidiaries, Z-Spanish or any of its
subsidiaries is in violation of its respective charter or by-laws or in default
in the performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole proforma for the acquisition of Z-Spanish, to which the Company or any of
its subsidiaries, or Z-Spanish or any of its subsidiaries, is a party or by
which the Company or any of its subsidiaries or any of their respective property
is bound.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby and the application of the
net proceeds from the sale of the Shares as contemplated by the Registration
Statement, and the execution, delivery and performance of the Reorganization
Agreements and the compliance with the provisions thereof, will not (i) require
any consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required under
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default (or event
which, with giving of notice or passage of time or both, would constitute a
default) under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective property is
bound, (iii) conflict with or constitute a breach of any of the terms and
provisions of any statute, any rule, regulation (including, without limitation,
the Communications Act of 1934, as amended, and the regulations promulgated
thereunder (the "Communications Laws")), or any order of any governmental agency
or body (including, without limitation, the Federal Communications Commission
(the "FCC")) or any court having jurisdiction over the Company, any subsidiary
of the Company, Z-Spanish or any subsidiary of Z-Spanish or any of their
respective properties, (iv) constitute a Repayment Event (as defined below), (v)
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries, or their respective
property, (vi) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or any of its subsidiaries, or
Z-Spanish or any of its subsidiaries, or any other impairment of the rights of
the holder of any such Authorization with, any governmental agency or body
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(including without limitation, the FCC or any court, except that a copy of this
Agreement is to be filed with the FCC within 30 days of its execution. As used
in this Agreement, "Repayment Event" means any event or condition that 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 or
redemption or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
(k) The Company and each of its subsidiaries, and Z-Spanish and each of
its subsidiaries are in compliance in all material respects with all applicable
laws, rules and regulations, including without limitation the rules and
regulations of the FCC.
(l) Except as disclosed in the Prospectus, there are no pending actions,
suits, proceedings, inquiries or investigations before or brought by any court
or governmental agency or body (including, without limitation, the FCC) against
or, to the knowledge of the Company, affecting the Company, any of its
subsidiaries, Z-Spanish, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect, or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise material in
the context of the offer and sale of the Shares by the Company; and no such
actions, suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(m) None of the Company, any of its subsidiaries, Z-Spanish or any of its
subsidiaries has violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or any provisions of the Foreign Corrupt
Practices Act, or the rules and regulations promulgated thereunder, except for
such violations which, singly or in the aggregate, would not have a material
adverse effect on the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole proforma for the
acquisition of Z-Spanish.
(n) The Company and each of its subsidiaries and Z-Spanish and each of its
subsidiaries has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and has made
all filings with and notices to, all governmental or regulatory authorities
(including without limitation the FCC) and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
12
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, proforma for the acquisition of Z-Spanish or on
any radio or television station licensed to the Company or any of its
subsidiaries or to Z-Spanish or any of its subsidiaries. Except as disclosed in
the Prospectus, each such material Authorization is valid and in full force and
effect, with no conditions, restrictions or qualifications (other than those
applicable generally to holders of broadcast television and radio licenses from
the FCC) and the Company and each of its subsidiaries and Z-Spanish and each of
its subsidiaries is in compliance with all the respective terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice of proceedings or
other notice from any authority or governing body) which allows or, after notice
or lapse of time or both, would allow or, if determined adversely to the
Company, any subsidiary of the Company, Z-Spanish or any subsidiary of Z-Spanish
could result in, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome, respectively, to the
Company or any of its subsidiaries or to Z-Spanish or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, proforma for the
acquisition of Z-Spanish.
(o) To the best of the Company's knowledge, there are no costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(p) The Company has not offered, or requested the Underwriters to offer,
any Directed Shares to any person with the specific intent to unlawfully
influence (i) a customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information about the
Company or any of its subsidiaries or of Z-Spanish or of any of its
subsidiaries.
13
(q) This Agreement has been duly authorized, executed and delivered by the
Company.
(r) McGladrey & ▇▇▇▇▇▇, LLP are independent public accountants with
respect to the Company and its subsidiaries, DeSoto-Channel 62, Ltd., and
KFRQ(FM), KKPS(FM), KVPA(FM) and KVLY(FM) Radio Stations. Ernst & Young LLP are
independent public accountants with respect to Latin Communications Group and
its subsidiaries and Deloitte & Touche LLP are independent public accountants
with respect to Z-Spanish and its subsidiaries.
(s) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations, stockholders' deficit/equity, cash flows and
changes in financial position of each of the Company and its consolidated
subsidiaries, of Latin Communications Group and its consolidated subsidiaries,
Z-Spanish and its consolidated subsidiaries, DeSoto-Channel 62, Ltd. and
KFRQ(FM), KKPS(FM), KVPA(FM) and KVLY(FM) Radio Stations as applicable, on the
respective basis stated therein at the respective dates or for the respective
periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) present
fairly the information shown therein and have been prepared on a basis
consistent with the financial statements and the books and records of each of
the Company, Latin Communications Group and Z-Spanish and their respective
consolidated subsidiaries, DeSoto-Channel 62, Ltd. and KFRQ(FM), KKPS(FM),
KVPA(FM) and KVLY(FM) Radio Stations included in the Prospectus and Registration
Statement. The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) have been
prepared on a basis consistent with the historical financial statements of the
Company and its subsidiaries, give effect to the assumptions used in the
preparation thereof on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by the Registration
Statement and the Prospectus. Such pro forma financial statements have been
prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated by the Commission and have been properly computed 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
14
transactions and circumstances referred to therein. The other pro forma
financial and statistical information and data set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with the pro forma financial statements. No applicable statute, rule or
regulation requires the inclusion of any financial statement data or information
in the Prospectus or the Registration Statement other than as are included
therein.
(t) The Company is not, and after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus will not be, and Z-Spanish is not, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(u) Except as otherwise described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(v) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any endments
or supplements thereto subsequent to the date of this Agreement), (i) there has
not occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its
subsidiaries, or of Z-Spanish and its subsidiaries, taken as a whole, (ii) there
has not been any material adverse change or any development involving a
prospective material adverse change in the capital stock or in the long-term
debt of the Company or any of its subsidiaries, (iii) none of the Company, any
of its subsidiaries, Z-Spanish or any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, and (iv) there has been
no dividend or distribution of any kind declared, paid or made by the Company or
any of its subsidiaries on any class of capital stock nor any repurchase or
redemption by the Company or any of its subsidiaries of any shares of any class
of capital stock.
(w) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(x) None of the Company, any of its subsidiaries, Z-Spanish or any of its
subsidiaries has at any time during the last five (5) years (i) knowingly made
any unlawful contribution to any candidate for foreign office or failed to
disclose fully
15
any contribution in violation of law, or (ii) knowingly made any payment to any
federal or state governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted
by the laws of the United States or any jurisdiction thereof.
(y) The Company has not taken and will not take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares.
(z) The Company and its subsidiaries and Z-Spanish and its subsidiaries
have good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material to the
business of the Company and its subsidiaries, and Z-Spanish and its subsidiaries
taken as a whole, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the net equity value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries and Z-Spanish and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries and Z-Spanish and
its subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
subsidiaries and Z-Spanish and its subsidiaries, taken as a whole, in each case
except as described in the Prospectus.
(aa) To the best of its knowledge, the Company and each of its
subsidiaries and Z-Spanish 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 none of the Company, any of its subsidiaries, Z-Spanish or any of
its subsidiaries (i) has received notice from any insurer or agent of such
insurer that substantial capital improvements or other material expenditures
will have to be made in order to continue such insurance or (ii) has any reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers at a cost that would not have a material adverse effect on the
business, prospects, financial conditions or results of operations of the
Company and its subsidiaries, taken as a whole, proforma for the acquisition of
Z-Spanish.
(bb) No relationship, direct or indirect, exists between or among the
Company, any of its subsidiaries, Z-Spanish or any of its subsidiaries on the
one hand, and the directors, officers, stockholders, customers or suppliers of
the Company, any of its subsidiaries, Z-Spanish or any of its subsidiaries on
the other
16
hand, which is required by the Act to be described in the Registration Statement
or the Prospectus which is not so described.
(cc) There is no:
(i) significant unfair labor practice complaint, grievance or
arbitration proceeding served upon the Company, pending or, to the
Company's best knowledge, threatened against the Company, any of its
subsidiaries, Z-Spanish or any of its subsidiaries before the National
Labor Relations Board or any foreign, state or local labor relations board
or similar authority;
(ii) strike, labor dispute, slowdown or stoppage pending or, to the
Company's best knowledge, threatened against the Company, any of its
subsidiaries, Z-Spanish or any of its subsidiaries; or
(iii) union representation question existing with respect to the
employees of the Company and its subsidiaries;
which, singly or in the aggregate, would have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, proforma for the acquisition of
Z-Spanish. To the best of the Company's knowledge, no collective bargaining
organizing activities are taking place with respect to the Company, any of its
subsidiaries, Z-Spanish or any of its subsidiaries, except as disclosed in the
Prospectus.
(dd) The Company and each of its subsidiaries and Z-Spanish and each of
its subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(ee) All material tax returns required to be filed by the Company and each
of its subsidiaries and Z-Spanish and each of its subsidiaries in any
jurisdiction have been filed, other than those filings being contested in good
faith, and all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company, any of its subsidiaries,
Z-Spanish or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
17
(ff) Except as disclosed in the Prospectus, there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
(gg) No vote or consent of any stockholder of the Company or of Z-Spanish,
and no consent, approval or waiver of any party to or any person entitled to any
right or benefit under the charter or by-laws of the Company or of Z-Spanish,
any shareholders' agreements or arrangements, or any other instrument or
agreement to which the Company or Z-Spanish is a party or by which either of
them is bound or under which either of them is entitled to any right or benefit,
is required in connection with the offering, issuance, sale or purchase by you
of any of the Shares under this Agreement or the consummation of any of the
other transactions contemplated hereby or the application of the net proceeds
from the sale of the Shares as contemplated by the Registration Statement,
except such as have been obtained; no Underwriter or subsequent purchaser or
transferee of any of the Shares is required to become or shall be deemed to be a
party to, or shall be subject to the terms or provisions of, any shareholders'
agreement or arrangement and none of the Shares sold to the Underwriters will be
subject to the terms or provisions of any of such agreements or arrangements.
(hh) Other than restrictions on the payment of dividends that would render
the Company's subsidiaries insolvent or as prohibited under the Company's credit
agreements, there are no limitations or restrictions on the Company's ability to
receive dividends or distributions of any kind from its subsidiaries, whether
based on laws, contracts, or currency controls, and the payment of such
dividends or distributions is not subject to any tax or withholding.
(ii) The reorganization of the Company as described in the Prospectus
under the caption "Certain Relationships and Related Transactions -
Reorganization" will not result in the imposition of any tax liability on the
Company or any of its subsidiaries.
(jj) The FCC has conditionally approved the transfer of the FCC broadcast
licenses from Z-Spanish to the Company, [and the applicable waiting period for
approval of the acquisition under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, has expired]. The Company is not aware of any fact or
circumstance that would prevent the closing of the Company's acquisition of Z-
Spanish.
(kk) Each agreement relating to the Reorganization Transactions has been
duly authorized by all necessary board of directors and stockholder action, or
all necessary advisory board, manager and member action, as the case may be, on
the
18
part of each of the parties thereto and has been duly executed and delivered by
each of the parties thereto. The Company has provided to the Underwriters true,
complete and correct copies of the Reorganization Agreements, including all
amendments thereto. The execution and delivery of the Reorganization Agreements,
the compliance with all of the provisions therein and the consummation of the
transactions therein contemplated do not and will not conflict with or result in
a breach or violation of any of the terms or provisions of, or give rise to
(with the giving of notice, the passage of time or both) a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which any party thereto is a party or by which any such party is
bound or to which any of the property or assets of any such party is subject,
nor will such actions result in any violation of the provision of the
certificate or articles of incorporation or bylaws, or the certificate of
formation or limited liability company agreement, as the case may be, of any
such party as currently in effect and as in effect upon the consummation of the
Reorganization Transactions, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over any such party
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the consummation by any such party of the transactions
contemplated by the Reorganization Agreements except such as have been obtained.
Section 7. Indemnification.
(a) The Company and each of its subsidiaries, jointly and severally, agree
to indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus, as then
amended or
19
supplemented (so long as the Prospectus and any amendments or supplements
thereto was provided by the Company to the several Underwriters in the requisite
quantity and on a timely basis to permit proper delivery on or prior to the
Closing Date), to the person asserting any losses, claims, damages, liabilities
or judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in such preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented, and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
In addition to the foregoing, in connection with the offer and sale of the
Directed Shares, the Company and each of its subsidiaries, and Z-Spanish and
each of its subsidiaries, jointly and severally, 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 (i) the failure of purchasers of the Directed Shares (including
eligible directors, officers, employees, customers, subscribers and persons
having business relationships with the Company) to pay for and accept delivery
of the Directed Shares which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed application to
purchase or (ii) any violation or alleged violation of the Act or any other
federal or state law or any liability based on common law, in each case, arising
out of or relating to the manner in which the Directed Shares are sold and
pertaining to any actions or inactions by the Company (or by the Company jointly
with any other person) including without limitation any e-mails or other
communications by the Company (or by the Company jointly with any other person)
with customers or subscribers of the Company relating to the Directed Shares or
possible opportunities to purchase Directed Shares.
(b) The Company and each of its subsidiaries, Z-Spanish and each of its
subsidiaries, jointly and severally, agree to indemnify and hold harmless DLJ
and each person, if any, who controls DLJ within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act ("DLJ Entities"),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i) caused
by the failure of any Participant to pay for and accept delivery of the shares
which immediately following the effective date of the Registration Statement,
were subject to a properly confirmed agreement to purchase; or (ii) related to,
arising out of, or in connection with the Directed Share Program, provided that,
the Company shall not be responsible under this subparagraph (ii) for any
losses, claim, damages or
20
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of DLJ
Entities.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(d) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a), 7(b) or 7(c) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(c), or pursuant to both Sections 7(b) and 7(c) the
Underwriter shall not be required to assume the defense of such action pursuant
to this Section 7(d), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of such Underwriter). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all Underwriters, their
officers and directors and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Act or
21
Section 20 of the Exchange Act, and (ii) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and all persons,
if any, who control the Company within the meaning of either such Section, and
all such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Underwriters, their officers and directors and
such control persons of any Underwriters, such firm shall be designated in
writing by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. In the case of
any such separate firm for the Company and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to Section
7(b) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for DLJ for the defense of any losses,
claims, damages and liabilities arising out of the Directed Share Program, and
all persons, if any, who control DLJ within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act.
(e) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(e)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 7(e)(i) above but also the
relative fault of the Company on the one hand and the
22
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering (after deducting underwriting discounts and commissions, but before
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares (including any shares sold directly by the Company
with the prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation), in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(e) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
23
(f) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ in their
capacities as the Chairman and Chief Executive Officer and President and Chief
Operating Officer, respectively, of the Company, confirming the matters set
forth in Sections 6(v), 8(a) and 8(b) and that the Company has complied with all
of the agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior to the
Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its
subsidiaries, proforma for the acquisition of Z-Spanish, taken as a whole,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the
Company, any of its subsidiaries, Z-Spanish or any of its subsidiaries and
(iii) neither the Company nor any of its subsidiaries shall have incurred
any liability or obligation, direct or contingent, the effect of which, in
any such case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii), in your
judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(e) (i) The Reorganization Transactions shall have been consummated prior
to the Closing Date to the satisfaction of the Underwriters and their counsel,
24
and (ii) conditional approval from the FCC shall have been obtained for the
transfer of the broadcast licenses of Z-Spanish to the Company prior to the
Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Fognani LLP, counsel for the Company (the
"Opinion"). With respect to Z-Spanish and each of its subsidiaries, the Opinion
may in turn rely upon an opinion of counsel to Z-Spanish, if any, to the extent
such opinion includes the entirety of the subject matter set forth below. The
Opinion shall be to the effect that:
(i) The Company and each of its subsidiaries and Z-Spanish and each
of its subsidiaries, respectively, has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus and to own, lease and
operate its properties ;
(ii) the Company and each of its subsidiaries and Z-Spanish and each
of its subsidiaries, respectively, is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(iv) the Shares to be issued and sold by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights;
(v) all of the outstanding shares of capital stock of each of the
Company's subsidiaries and of Z-Spanish and each of its subsidiaries have
been duly authorized and validly issued and are fully paid and non-
assessable, and are owned by the Company or Z-Spanish, respectively,
directly or indirectly through one or more subsidiaries, free
25
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature, except as otherwise disclosed in the Prospectus;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
(vii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge
after due inquiry, pending before or contemplated by the Commission;
(ix) the statements under the captions "Risk Factors", "Business",
"Certain Relationships and Related Transactions", "Description of Capital
Stock", "Shares Eligible for Future Sale", and "Underwriting" in the
Prospectus and Items 14 and 15 of Part II of the Registration Statement,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings;
(x) neither the Company nor any of its subsidiaries or Z-Spanish or
any of its subsidiaries is in violation of its respective charter or by-
laws and, to the best of such counsel's knowledge after due inquiry,
neither the Company nor Z-Spanish nor any of their respective subsidiaries
is in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole proforma for the acquisition of Z-Spanish,
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or Z-Spanish or any of its subsidiaries
or their respective property is bound;
(xi) the execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby, and the
application of the net proceeds from the sale of the Shares as contemplated
by the Registration Statement, will not (A) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states) (B) conflict with or
constitute a breach of any of the terms or provisions of, or
26
a default (or event which, with the giving of notice or passage of time, or
both, would constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to the charter or by-laws of the
Company or any of its subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the
Company and its subsidiaries, taken as a whole proforma for the acquisition
of Z-Spanish, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective
property is bound, (C) conflict with or constitute a breach of any of the
terms and provisions of any statute, any rule, regulation (including,
without limitation, the Communications Laws), or, to such counsel's
knowledge, any order of any governmental agency or body (including, without
limitation, the FCC) or any court having jurisdiction over the Company or
any subsidiary of the Company, Z-Spanish or any subsidiary of Z-Spanish or,
to such counsel's knowledge, any of their properties, (D) constitute a
Repayment Event, (E) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of
its subsidiaries, Z-Spanish, any of its subsidiaries or their respective
property or (F) result in the suspension, termination or revocation of any
Authorization of the Company or Z-Spanish or any of their respective
subsidiaries or any other impairment of the rights of the holder of any
such Authorization;
(xii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries or Z-Spanish or any of its subsidiaries is or could be
a party or to which any of their respective property is or could be subject
that is required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(xiii) to the best of counsel's knowledge after due inquiry, none of
the Company, Z-Spanish or any of their respective subsidiaries has violated
any Environmental Law, any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or any provisions of the Foreign Corrupt
Practices Act, or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, would not have a
material adverse effect on the business, prospects, financial condition or
results of operation of the Company and
27
its subsidiaries, taken as a whole proforma for the acquisition of Z-
Spanish;
(xiv) the Company and each of its subsidiaries and Z-Spanish and each
of its subsidiaries has such Authorizations of, and has made all filings
with and notices to, all governmental or regulatory authorities and self-
regulatory organizations and all courts and other tribunals, including,
without limitation, under any applicable Environmental Laws, as are
necessary to own, lease, license and operate its respective properties and
to conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole proforma for the acquisition of Z-Spanish;
each such Authorization is valid and in full force and effect and each of
the Company, Z-Spanish and their respective subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results
or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to the Company,
Z-Spanish or any of their respective subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material adverse effect on
the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole proforma for the
acquisition of Z-Spanish;
(xv) (A) the Company, Z-Spanish or one of their respective
subsidiaries holds the FCC Authorizations for the television and radio
stations identified in the Prospectus as being owned by the Company, (B)
such Authorizations are in full force and effect, and (C) no such
Authorization is the subject of any pending or threatened challenge or
revocation;
(xvi) the Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
28
(xvii) to the best of such counsel's knowledge after due inquiry,
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities
of the Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement;
(xviii) (A) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and
other financial data included therein as to which no opinion need be
expressed) comply as to form with the Act, (B) such counsel has no reason
to believe that at the time the Registration Statement became effective or
on the date of this Agreement, the Registration Statement and the
prospectus included therein (except for the financial statements and other
financial data as to which such counsel need not express any belief)
contained any 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 and (C) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if applicable
(except for the financial statements and other financial data, as
aforesaid) contains any 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;
(xix) the Registration Statement and the Prospectus are not required
to include or describe, by virtue of any doctrine of integration or
otherwise, any Class A Common Stock other than the shares thereof so
included and described;
(xx) each of the Reorganization Agreements has been duly authorized
by all necessary board of directors and stockholder action, or all
necessary advisory board, manager and member action, as the case may be, on
the part of the parties thereto and has been duly executed and delivered by
each of the parties thereto. The execution, delivery and performance of the
Reorganization Agreements by the parties thereto, the compliance by the
parties thereto with all the provisions thereof and the consummation of the
transactions contemplated thereby, will not (A) require any consent,
approval, authorization or other order of, or qualification with, any court
or governmental body or agency, (B) conflict with or constitute a breach of
any of the terms or provisions of, or a default (or event which, with the
giving of notice or passage of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the
29
parties thereto pursuant to the charter or by-laws or other similar
instrument of any of such parties or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to any of
such parties, to which any of such parties is a party or by which any of
such parties or their respective property is bound, (C) constitute a
Repayment Event, (D) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over any of such parties or
their respective property or (E) result in the suspension, termination or
revocation of any Authorization of any of such parties or any of their
respective subsidiaries or any other impairment of the rights of the holder
of any such Authorization;
(xxi) The execution and delivery of the Reorganization Agreements,
the compliance by the parties thereto with all of the provisions thereof
and the consummation of the transactions therein contemplated will not
violate any provisions of the Communications Act of 1934, as amended, or
any of the rules, regulations or published policies thereunder.
(xxii) the FCC has granted its conditional approval to the
acquisition by the Company of the Z-Spanish FCC Authorizations. The FCC's
consent is not subject to any material adverse conditions imposed by the
FCC. Without limiting the other qualifications set forth in such opinion,
in providing the foregoing opinion such counsel may assume that all
standard conditions set forth on the FCC forms evidencing the FCC's
consent, those set forth in the FCC orders granting the FCC Authorizations
or any renewal thereof, and those set forth in the Communications Laws
imposed on licensees generally or radio or television licenses
specifically, are conditions in the ordinary course, and such counsel need
not express any view on such matters;
(xxiii) [the applicable waiting period for approval of the acquisition
by the Company of Z-Spanish Media under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, has expired, and counsel is not aware
of any fact or circumstance that would prevent the closing of the Company's
acquisition of Z-Spanish;]
(xxiv) the agreements (A) dated _______, 2000, relating to the
acquisition of certain outdoor advertising assets from Infinity
Broadcasting, (B) dated May __, 2000, relating to the acquisition of four
radio stations in McAllen, Texas, (C) dated February __, 2000, and April
14, 2000, relating to the acquisition of television stations in Hartford,
Connecticut and Orlando, Florida, respectively, and (D) dated March __,
30
2000, relating to the acquisition of two radio stations in Los Angeles,
have each been duly authorized, executed and delivered by the Company and,
to such counsel's knowledge, the other parties thereto, and such agreements
constitute a valid and legally binding obligation of the Company and, to
such counsel's knowledge, of the other parties thereto, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
The opinion of counsel described in this Section 8(f) shall be rendered to
you at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, satisfactory to you and to counsel for the Underwriters from
▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, FCC counsel to the Company, to the effect that the
statements of the Company in the Prospectus (A) describing digital television,
FCC regulation of the Company's business, carriage on cable television,
applications to the FCC for consent to transfer control of Z-Spanish in the
Section titled "Risks Related to the Television, Radio, Outdoor Advertising and
Publishing Industries"; and (B) made under the caption "Regulation of Television
and Radio Broadcasting" in the Section titled "Business," insofar as they
constitute summaries of the Communications Act of 1934, as amended, and the
rules, regulations and published policies of the FCC and material proceedings
thereunder, are accurate and fairly present the information set forth therein in
all material respects;
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, as to the
matters referred to in Sections 8(f)(iv), 8(f)(vi) (but only with respect to the
Company), 8(f)(ix) (but only with respect to the statements under the caption
"Description of Capital Stock" and "Underwriting") and 8(f)(xviii).
In giving such opinions with respect to the matters covered by Section
8(f)(xviii) counsel for the Company and counsel for the Underwriters may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification except as may be specified.
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from McGladrey & ▇▇▇▇▇▇, LLP,
independent public accountants, containing the information and statements of the
31
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus. You shall also have received,
on each of the date hereof and the Closing Date, a letter dated the date hereof
or the Closing Date, as the case may be, in form and substance satisfactory to
you, with respect to each of (i) Latin Communications Group from Ernst & Young
LLP, (ii) Z-Spanish from Deloitte & Touche LLP and (iii) DeSoto-Channel 62
Associates, Ltd. and KFRQ(FM), KKPS(FM), KVPA(FM) and KVLY(FM) Radio Stations
from McGladrey & ▇▇▇▇▇▇, LLP, containing statements that (a) they are
independent public accountants with respect to such entity as required by the
Act, (b) that the financial statements of such entity audited by them and
included in the Registration Statement and Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act and (c)
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to certain financial
information specifically related to such entity contained in the Registration
Statement and the Prospectus.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Shares shall have been duly listed, subject to notice of issuance,
on the New York Stock Exchange.
(l) The Company shall not have failed on or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Company on or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
Section 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
32
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each non-
defaulting Underwriter shall be obligated severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Firm Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the
33
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Entravision
Communications Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and (ii) if to any Underwriter or to you, to you c/▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9, the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(i) hereof. The Company also agrees to reimburse
the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees and disbursements of counsel) incurred
by them in connection
34
with enforcing their rights hereunder (including, without limitation, pursuant
to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
35
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
ENTRAVISION COMMUNICATIONS CORPORATION
By:_____________________________
Title:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By______________________________
______________________________
36
SCHEDULE I
----------
Underwriters Number of Firm Shares
to be Purchased
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated
DLJdirect Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
_______________
Total
Annex I
[Insert names of stockholders of the Company who will be required to sign lock
ups]
2