EXHIBIT 1.1
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EXECUTION COPY
EMMIS COMMUNICATIONS CORPORATION
("COMPANY")
CLASS A COMMON STOCK
TERMS AGREEMENT
March 27, 2002
To: The Underwriters identified herein
Dear Madame/Sirs:
The undersigned agrees to sell you for your account, on and subject to
the terms and conditions of the Underwriting Agreement attached hereto
("UNDERWRITING AGREEMENT"), the following securities ("OFFERED Securities") on
the following terms:
TITLE: Class A Common Stock
NUMBER OF SHARES:
Deutsche Banc Alex. ▇▇▇▇▇: 3,285,714
Credit Suisse First Boston Corporation: 714,286
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Total 4,000,000
OVER-ALLOTMENT: In addition, upon written notice from you
given to the Company from time to time not more than 30 days subsequent to the
date hereof, you may purchase up to 600,000 additional shares of the Offered
Securities (the "OPTIONAL SECURITIES") at the Purchase Price. The Company agrees
to sell to you the Optional Securities, and you agree to purchase such Optional
Securities. Such Optional Securities shall be purchased for your account in full
or in part and may be purchased by you only for the purpose of covering
over-allotments made in connection with the sale of the Offered Securities. No
Optional Securities shall be sold or delivered unless the Offered Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by you to the Company.
LISTING: The Nasdaq Stock Market Inc.'s National Market.
PURCHASE PRICE: $26.24 per share.
EXPECTED REOFFERING PRICE: $26.80 per share, subject to change
by the Underwriters following the initial distribution of the Offered
Securities.
CLOSING: 9:30 A.M. on Tuesday, April 2, 2002, at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in Federal
(same day) funds.
BLACKOUT: Until 90 days after the Closing Date, with the
exception of up to 300,000 shares which may be sold by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
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NAME AND ADDRESS OF THE UNDERWRITERS:
Deutsche Banc Alex. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The provisions of the Underwriting Agreement are incorporated
herein by reference, except that the parties agree that with respect to this
Offering the Underwriters will not receive comfort letters regarding the
historical financial statements of certain acquired entities that were
incorporated by reference into the Prospectus from the Company's registration
statement on Form S-4 (File No.333-62160) and that such omission shall not be
deemed to be a failure to fulfill the condition stated in Section 5(a) of the
Underwriting Agreement.
Reference is hereby made to the side letter, dated the date
hereof, between the Underwriters regarding the allocation of compensation in
connection with the Offering.
The Offered Securities will be made available for checking and
packaging at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by the Underwriters for use in the
Prospectus consists of the following information in the prospectus supplement
furnished on behalf of the Underwriters: The following paragraphs of the section
entitled "Underwriting" beginning on page S-23: ninth paragraph (regarding sales
to discretionary accounts); the eleventh through fifteenth paragraphs (regarding
short sales, covering and stabilizing transactions) and the first line of the
seventeenth paragraph (regarding possible Internet availability of the
Prospectus).
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
EMMIS COMMUNICATIONS CORPORATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Associate
General Counsel
Accepted and agreed as of the date first above written:
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
BY: DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
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EMMIS COMMUNICATIONS CORPORATION
EMMIS OPERATING COMPANY
DEBT SECURITIES
PREFERRED--COMMON--STOCK
DEPOSITARY SHARES
WARRANTS
UNDERWRITING AGREEMENT
1. INTRODUCTORY. Emmis Communications Corporation, an Indiana
corporation ("COMPANY"), proposes to issue and sell from time to time certain of
its Class A Common Stock ("COMMON STOCK"), preferred stock, depositary shares,
debt securities, warrants and guarantees of debt securities of Emmis Operating
Company, an Indiana corporation and a wholly-owned subsidiary of the Company
("OPERATING COMPANY"), and Operating Company proposes to issue from time to time
certain of its debt securities and guarantees of debt securities of the Company,
which securities of the Company and the Operating Company are registered under
the registration statement referred to in Section 2(a) ("REGISTERED
SECURITIES"). The Registered Securities constituting debt securities of the
Company or Operating Company will be issued under a senior debt indenture, in
the case of senior debt securities, or a subordinated debt indenture, in the
case of subordinated debt securities, forms of which indentures are filed as
exhibits to the registration statement referred to in Section 2(a), and may be
issued in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms. The
Registered Securities constituting preferred stock of the Company may be issued
in one or more series, which series may vary as to dividend rates, redemption
provisions, conversion and exchange provisions, selling prices, voting rights
(if any) and other terms. The Registered Securities constituting depositary
shares will each represent a fractional interest in a share of a particular
series of preferred stock of the Company and will be issued pursuant to a
deposit agreement to be entered into between the Company, the relevant preferred
stock depositary and holders from time to time of the depositary receipts
evidencing the relevant depositary shares. The Registered Securities
constituting warrants to purchase shares of Common Stock, preferred stock or
debt securities of the Company may be issued independently or together with any
of the securities for which they are exercisable, will be issued pursuant to a
warrant agreement to be entered into between the Company and a warrant agent,
and may vary as to their particular terms such as issue price and exercise terms
and prices. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters. All references herein to the "Company" shall instead refer to the
Operating Company to the extent the Operating Company is the issuer of any
Offered Securities pursuant to any Terms Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company, as
of the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter
that, except as otherwise set forth in the disclosure letter of the Company
accompanying any Terms Agreement described in Section 3:
(a) A registration statement (File No. 333-62172),
including a prospectus, relating to the Registered Securities has been
filed with the Securities and Exchange Commission ("COMMISSION") and
has been declared effective by the Commission. Such registration
statement, as amended at the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the "REGISTRATION STATEMENT",
and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or preferred stock) and
the terms of the offering of the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b)
("RULE 424(B)") under the Securities Act of 1933 ("ACT"), including all
material incorporated by reference therein, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement,
such registration statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission ("RULES
AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
the Representatives, if any, specifically for use therein.
(c) Each of the Company and its Significant Subsidiaries
(as defined below) has been duly incorporated or organized, is validly
existing as a corporation, partnership or limited liability company, as
applicable, in good standing under the laws of its jurisdiction of
incorporation or organization and has the corporate, partnership or
limited liability company 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, partnership or limited liability company
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, in each case, where the failure to be in good
standing or so qualified would not reasonably be expected to 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 (a "MATERIAL ADVERSE EFFECT").
(d) Other than the entities listed on Schedule B hereto
(the "SIGNIFICANT SUBSIDIARIES"), the Company has no "significant
subsidiaries," as such term is defined in Article 1, Rule 1-02(w) of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is
in effect on the date hereof. All of the outstanding equity interests
of each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and, except as
set forth on Schedule B hereto, are 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 (each, a "LIEN") aside from Liens arising under the Fourth
Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of December 29,
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2000, as amended, extended, renewed, supplemented, restated or modified
(in whole or in part) among the Company, the lenders named therein,
Toronto Dominion (Texas), Inc., as Administrative Agent, Fleet National
Bank, as Documentation Agent, First Union National Bank, as Syndication
Agent and Credit Suisse First Boston Corporation as co-document agent
(the "CREDIT FACILITY").
(e) If the Offered Securities are debt securities: The
indenture governing the Offered Securities (the "INDENTURE") has been
duly authorized by the Company and has been duly qualified under the
Trust Indenture Act; the Offered Securities have been duly authorized
by the Company; and when the Offered Securities are delivered and paid
for pursuant to the Terms Agreement on the Closing Date (as defined
below) or pursuant to Delayed Delivery Contracts (as hereinafter
defined), the Indenture will have been duly executed and delivered by
the Company, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform in all material
respects to the description thereof contained in the Prospectus, and
the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company or the Operating Company, as
the case may be, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability
(regardless of whether enforceability is considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act
and the Rules and Regulations applicable to an indenture which is
qualified thereunder.
(f) If the Offered Securities are preferred stock: The
Offered Securities have been duly authorized by the Company and, when
the Offered Securities have been delivered and paid for in accordance
with the Terms Agreement on the Closing Date, such Offered Securities
will have been validly issued, fully paid and nonassessable and will
conform in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock: The
Offered Securities and all other outstanding shares of capital stock of
the Company have been duly authorized by the Company; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and will conform in
all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to its Common Stock.
(h) If the Offered Securities are convertible: When the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, such Offered Securities will be
convertible into Common Stock of the Company in accordance with their
terms (if the Offered Securities are preferred stock) or the Indenture
(if the Offered Securities are debt securities); the shares of Common
Stock initially issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable; the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Common Stock.
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(i) If the Offered Securities are Common Stock or are
convertible into Common Stock: Except as disclosed in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee
or other like payment.
(j) If the Offered Securities constitute Common Stock or
are convertible into Common Stock: The outstanding shares of Common
Stock are listed on the Nasdaq Stock Market ("NASDAQ") and the Offered
Securities (if they are Common Stock) or the Common Stock into which
the Offered Securities are convertible (if they are convertible) has
been approved for listing on Nasdaq, subject to official notice of
issuance. If the Offered Securities are debt securities or preferred
stock, they have been approved for listing on the stock exchange (if
any) indicated in the Terms Agreement, subject to official notice of
issuance.
(k) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(l) Neither the Company nor any of the Company's
Significant Subsidiaries is in violation of its respective charter,
by-laws or equivalent organizational documents 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 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, except in the case of any violation or
default that would not reasonably be expected to have a Material
Adverse Effect.
(m) Except as would not be reasonably be expected to have
a Material Adverse Effect, the execution, delivery and performance of
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt securities or
preferred stock, compliance with the terms and provisions thereof, by
the Company, compliance by the Company with all provisions hereof and
thereof and the consummation of the transactions contemplated hereby
and thereby will not (i) require any consent, approval, authorization
or other order of, or qualification with, any court or governmental
body or agency of the United States or the State of New York or the
State of Delaware (except such as may be required from the Commission
in connection with the Registration Statement or under the Trust
Indenture Act or 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 under, the charter or by-laws of the
Company or any of the Company's 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) 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 the
Company's subsidiaries or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a
Lien under, any agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, or (v) result in
the termination, suspension or revocation of any Authorization (as
defined below) of the Company or any of its subsidiaries or result in
any other impairment of the rights of the holder of any such
Authorization.
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(n) There are no legal or governmental proceedings
pending or overtly threatened to which the Company or any of its
Significant Subsidiaries is or could be a party or to which any of
their respective property is or could be subject, which would
reasonably be expected to result, singly or in the aggregate, in a
Material Adverse Effect.
(o) Neither the Company nor any of its Significant
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 ("ERISA"), 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 reasonably be expected to have a
Material Adverse Effect.
(p) 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, reasonably be
expected to have a Material Adverse Effect.
(q) Each of the Company and its Significant 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 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, reasonably be expected to
have a Material Adverse Effect. Each such Authorization is valid and in
full force and effect and each of the Company and its Significant
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 or any of its
Significant Subsidiaries; except where (i) such failure to be valid and
in full force and effect or to so be in compliance, or (ii) where the
occurrence of any such event or the presence of any such restriction,
in each case, would not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(r) The accountants that have audited the Company's
financial statements and supporting schedules included in the
Registration Statement and Prospectus are independent public
accountants with respect to the Company, as required by the Act and the
Exchange Act. The financial statements included in the Registration
Statement and Prospectus present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be
stated therein; and any pro forma financial statements included in the
Registration Statement and Prospectus or incorporated by reference
therein have been prepared on a basis consistent in all material
respects with the historical financial statements of the Company and
its subsidiaries and give effect to assumptions
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used in the preparation thereof on a reasonable basis and in good faith
and present fairly in all material respects the historical and proposed
transactions contemplated by the Registration Statement and the
Prospectus;
(s) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
net proceeds thereof as described in the Prospectus, will not be,
required to register as an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended;
(t) 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 owned or to be owned by such
person (except for the registration rights granted to Liberty Media
Corporation under a registration rights agreement dated as of November
18, 1999, between Emmis and Liberty Media Corporation) or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(u) Neither the Company nor any of the Company's
Significant Subsidiaries nor any agent thereof acting on their behalf
has taken, and none of them will take, any action that might cause the
Terms Agreement or the issuance or sale of any Offered Securities to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System.
(v) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act (i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the
Company's retaining any rating assigned to the Company or any
securities of the Company or (ii) has indicated to the Company that it
is considering (a) the downgrading, suspension, or withdrawal of, or
any review for a possible change that does not indicate the direction
of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company or any securities of the
Company.
(w) Since the date of the latest audited financial
statements included in the Prospectus, other than as set forth in the
Prospectus, (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, 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 and (iii) neither the Company nor any of its subsidiaries
has incurred any material liability or obligation, direct or
contingent.
(x) 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.
(y) Except for such FCC consents and approvals that have
already been obtained and are currently in effect, no consent or
approval of the FCC is required under the Communications Act of 1934,
as amended, and the regulations promulgated thereunder (the
"COMMUNICATIONS LAWS") for the issuance and sale of the Offered
Securities. The execution, delivery and
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performance of the Terms Agreement (including this Agreement) in
accordance with the terms thereof by the Company does not violate the
Communications Laws.
(z) Each of the following subsidiaries of the Company
(the "LICENSE SUBSIDIARIES") holds all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits issued
by the FCC to own and to operate each of the respective radio or
television broadcast stations (the "STATIONS") listed next to it in
such list (all such held FCC authorizations, approvals, consents,
orders, licenses, certificates and permits of the License Subsidiaries
collectively "FCC LICENSES").
CORPORATION STATION
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Emmis Radio License Corporation KALC-FM
KFTK-FM
KIHT-FM
KKFR-FM
KKLT-FM
KMVP-AM
KPNT-FM
KPWR-FM
KSHE-FM
KTAR-AM
KXPK-FM
KZLA-FM
WENS-FM
WIBC-AM
WKQX-FM
WNOU-FM
WMLL-FM
WQCD-FM
WTHI-FM
WYXB-FM
WWVR-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
Emmis Television License Corporation KAII-TV
KBIM-TV
KGUN-TV
KGMB-TV
KGMD-TV
KGMB-TV
KHAW-TV
KHON-TV
KMTV-TV
KOIN-TV
KREZ-TV
KRQE-TV
WALA-TV
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CORPORATION STATION
----------- -------
WFTX-TV
WKCF-TV
WLUK-TV
WSAZ-TV
WTHI-TV
WVUE-TV
Emmis Television License Corporation of Topeka KSNT-TV
Emmis Television License Corporation of Wichita KSNW-TV
KSNC-TV
KSNG-TV
KSNK-TV
(aa) There are no proceedings pending or threatened in
writing under the Communications Laws against the Company, the License
Subsidiaries, the other subsidiaries of the Company or the Stations
before or by the FCC or any court having jurisdiction over matters
arising under the Communications Laws, relating to any invalidity,
revocation or modification of any FCC Licenses, the violation of the
Communications Laws, or the reconsideration or rescission of the
issuance or consent to the transfer or assignment, of any of the FCC
Licenses that would reasonably be expected to have a Material Adverse
Effect.
(bb) The Company 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, in each
case free and clear of all Liens (except for existing Liens granted
under the Credit Facility) and defects, except such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and building
held under lease by the Company 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, except in the case of any violation of the requirements
of this paragraph (bb) that would not reasonably be expected to have a
Material Adverse Effect.
(cc) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
("INTELLECTUAL PROPERTY") currently employed by them in connection with
the business now operated by them except where the failure to own or
possess or otherwise be able to acquire such intellectual property
would not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to have a Material Adverse Effect.
(dd) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or threatened
against the Company or any of its Significant Subsidiaries before the
National Labor Relations Board or any state or local labor relations
board, (ii) strike,
8
labor dispute, slowdown or stoppage pending or threatened against the
Company or any of its Significant Subsidiaries or (iii) union
representation question existing with respect to the employees of the
Company or any of its Significant Subsidiaries, except in the case of
clauses (i), (ii) and (iii) for such actions which singly or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Company, no material collective
bargaining organizing activities are taking place with respect to the
Company or any of its Significant Subsidiaries.
(ee) The Company 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.
(ff) All material tax returns required to be filed by the
Company and each of its Significant 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 or any of
its Significant Subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided.
(gg) If the proceeds of the Offered Securities are to be
used to repay indebtedness of the Company or any of its subsidiaries,
all indebtedness of the Company that will be repaid with the proceeds
of the issuance and sale of the Offered Securities was incurred, and
the indebtedness (if any) represented by the Offered Securities is
being incurred, for proper purposes and in good faith and the Company
was, at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Offered
Securities, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Offered
Securities) solvent, and had at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and
sale of the Offered Securities and will have on the Closing Date (after
giving effect to the application of the proceeds from the issuance of
the Offered Securities) sufficient capital for carrying on their
respective business and were, at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and
sale of the Offered Securities, and will be on the Closing Date (after
giving effect to the application of the proceeds from the issuance of
the Offered Securities), able to pay their respective debts as they
mature.
The Company acknowledges that the Underwriters and, for purposes of the
opinions to be delivered to the Underwriters pursuant to Section 5 hereof,
counsel to the Company and counsel to the Underwriters will rely upon the
accuracy and truth of the foregoing representations and hereby consents to such
reliance.
3. PURCHASE AND OFFERING OF OFFERED SECURITIES. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be
9
paid by the Underwriters and (if the Offered Securities are debt securities or
preferred stock) the terms of the Offered Securities not already specified (in
the Indenture, in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt securities), dividend rate
(if preferred stock), maturity (if debt securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date as the Underwriter first named in the
Terms Agreement (the "LEAD UNDERWRITER") and the Company agree as the time for
payment and delivery, being herein and in the Terms Agreement referred to as the
"CLOSING DATE"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the Underwriters
to purchase the Offered Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Offered Securities for
sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("DELAYED
DELIVERY CONTRACTS") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of and at the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
10
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement, including all exhibits, in the form
it became effective and of all amendments thereto and that, in connection with
each offering of Offered Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b)(2) (or, if
applicable and if consented to by the Lead Underwriter, subparagraph
(5)) not later than the second business day following the execution and
delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly
of any proposal to amend or supplement the Registration Statement or
the Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company promptly will notify the Lead Underwriter of such
event and will promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any
related preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
the Lead Underwriter reasonably requests. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and (if the Offered Securities are debt
securities or preferred stock) the determination of their eligibility
for investment under the laws of such jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution.
11
(g) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and (if the Offered
Securities are debt securities or preferred stock) any determination of
their eligibility for investment under the laws of such jurisdictions
as the Lead Underwriter may designate and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies
for the rating of the Offered Securities (if they are debt securities
or preferred stock), for any applicable filing fee incident to the
review by the National Association of Securities Dealers, Inc. of the
Registered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(h) If the Offered Securities are debt securities or
preferred stock, the Company will not publicly or in an offering
pursuant to Rule 144A under the Act offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to
United States dollar-denominated debt securities issued or guaranteed
by the Company and having a maturity of more than one year from the
date of issue (if the Offered Securities are debt securities) or any
series of preferred stock issued or guaranteed by the Company (if the
Offered Securities are preferred stock), or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in
the Terms Agreement.
(i) If the Offered Securities are Common Stock or are
convertible into Common Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Common Stock or
securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the
time of execution of the Terms Agreement and ending the number of days
after the Closing Date specified under "Blackout" in the Terms
Agreement, except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options pursuant to the terms
of a plan in effect on the date of the Terms Agreement, issuances of
Common Stock pursuant to the exercise of such options or issuances of
Common Stock pursuant to Company employee stock purchase plans, Company
incentive plans, Company benefit plans and Company dividend
reinvestment plans in effect on the date of the Terms Agreement.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received, on or prior
to the date of the Terms Agreement and on the Closing Date, a letter or
letters, dated the date of delivery thereof, in form
12
and substance satisfactory to the Representatives, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP (Indianapolis), and such other independent public accountants who
have audited and reviewed financial statements and certain other
financial information included or incorporated by reference in the
Prospectus, as requested by the Lead Underwriter, confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and
containing the information and statements of the type ordinarily
included in accountants' "comfort letters" with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Prospectus.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
4(a) of this Agreement. No stop order suspending the effectiveness of
the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company or any Underwriter, shall be
overtly threatened by the Commission.
(c) Subsequent to the execution of the Terms Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in the condition (financial or
otherwise), business, management or operations of the Company and its
subsidiaries taken as a whole which, in the judgment of a majority in
interest of the Underwriters including any Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities or preferred stock of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any
announcement that the Company has been placed on negative outlook;
(iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Underwriters
including any Representatives, be likely to prejudice materially the
success of the proposed issue, sale or disposition of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material
limitation of trading in securities generally 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,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in the
United States which, in the judgment of a majority in interest of the
Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion,
dated the Closing Date, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Company, to the effect that:
13
(i) If the Offered Securities are debt
securities: assuming due authorization of the Offered
Securities by the Company, the Offered Securities other than
any Contract Securities have been duly executed, and
delivered; and the Offered Securities other than any Contract
Securities will, when authenticated and issued in accordance
with the terms of the Indenture, and any Contract Securities
will, when executed, authenticated, issued and delivered in
accordance with the terms of the Indenture and sold pursuant
to Delayed Delivery Contracts, constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability
(regardless of whether enforceability is considered in a
proceeding in equity or at law);
(ii) If the Offered Securities are debt
securities: Assuming due authorization thereof by the Company,
the Indenture has been duly executed and delivered by the
Company and has been duly qualified under the Trust Indenture
Act, and is a valid and binding agreement of the Company,
enforceable against the Company, in accordance with its terms
except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether
enforceability is considered in a proceeding in equity or at
law);
(iii) Assuming due authorization thereof by the
Company, the Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities
or preferred stock, any Delayed Delivery Contracts, have been
duly executed and delivered by the Company;
(iv) the Offered Securities other than any
Contract Securities conform, and any Contract Securities, when
so issued and delivered and sold will conform, in all material
respects to the description thereof contained in the
Prospectus insofar as such description constitutes a summary
of the legal matters, documents or proceedings referred to
therein;
(v) the statements in the Prospectus under the
caption "Certain Federal Income Tax Considerations," to the
extent that they constitute summaries of United States federal
law or regulation or legal conclusions, have been reviewed by
such counsel and fairly summarize the matters described under
that caption in all material respects;
(vi) If the Offered Securities are convertible
debt securities: assuming due authorization of the Indenture
and the Offered Securities by the Company and assuming that
sufficient shares of Common Stock have been duly authorized
and reserved for issuance upon conversion of the Offered
Securities, the Offered Securities other than any Contract
Securities are, and any Contract Securities, when (if the
Offered Securities are debt securities) executed,
authenticated, issued and delivered in the manner provided in
the Indenture and sold pursuant to Delayed Delivery Contracts
or will be convertible into Common Stock of the Company in
accordance with the Indenture or;
(vii) assuming (1) the accuracy of the Company's
representations and warranties set forth in Section 2 hereof
with respect to factual matters, (2) the compliance
14
by the Company with its covenants set forth in Section 4
hereof and (3) that the Registration Statement and Prospectus
(as amended or supplemented) are accurate and complete, except
as would not reasonably be expected to have a Material Adverse
Effect, the execution, delivery and performance of the
Indenture (if the Offered Securities are debt securities), the
Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts, the
compliance by the Company with all provisions hereof and
thereof and the consummation of the transactions contemplated
hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency of the United States or
the State of New York or the State of Delaware under any
Applicable Law (except such as may be required by the
Commission in connection with the Registration Statement and,
if the Offered Securities are debt securities, under the Trust
Indenture Act with respect to the Indenture, and 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 under, the
Credit Facility or, to such counsel's actual knowledge, any
indenture, loan agreement, mortgage, lease or other agreement
or instrument listed under Exhibit 10 to the Registration
Statement, as amended to the date of such opinion, or (iii)
violate or conflict with any Applicable Law or, to such
counsel's actual knowledge, any judgment, order or decree of
any court or any governmental body or agency of the United
States (other than the Federal Communications Commission, (the
"FCC") as to which such counsel need not express an opinion)
or the State of New York or the State of Delaware under the
Delaware General Corporation Law having jurisdiction over the
Company, any of its subsidiaries or their respective property
(other than the FCC, as to which such counsel need not express
an opinion). The term "Applicable Law" as used in this
paragraph means the Delaware General Corporation Law, the laws
of the State of New York and the laws, rules and regulations
of the United States (excluding the Communications act of
1934, as amended (including the Telecommunications Act of
1996, as amended, or any rules, regulations and policies of
the FCC under that act (the "Communications Act") as to which
such counsel need not express an opinion), in each case, which
in the experience of such counsel are normally applicable to
transactions of the type contemplated by the Terms Agreement.
(viii) assuming (1) the accuracy of the Company's
representations and warranties set forth in Section 2 hereof
with respect to factual matters, and (2) compliance by the
Company with their respective covenants set forth in Section 4
hereof, the Company is not and, after giving effect to the
offering and sale of the Offered Securities and the
application of the net proceeds thereof as described in the
Prospectus, will not be, required to register as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(ix) The Registration Statement has become
effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein, and,
the Commission has orally advised such counsel that no stop
order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the registration
statement relating to the Registered Securities, as of its
effective date, each of the Registration Statement and the
Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, assuming the
accuracy and completeness of the Registration Statement and
Prospectus (as so amended or
15
supplemented), appeared on its face to be appropriately
responsive in all material respects to the requirements of the
Act, and the Rules and Regulations; no facts have come to such
counsel's attention to lead such counsel to believe that such
registration statement, as of its effective date, the
Registration Statement, as of the date of the Terms Agreement
or as of the Closing Date, or any amendment thereto, as of its
date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
of the date of the Terms Agreement or as of such Closing Date,
or any amendment or supplement thereto, as of its date or as
of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion
under this Section (ix) as to the financial statements,
financial statement schedules or other financial or
statistical data contained in the Registration Statement or
the Prospectus.
The opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
described in this Section 5(d) shall be rendered to you at the request
of the Company and shall so state therein. In rendering such opinion,
such counsel may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company
and certificates or other written statements of public officials. In
giving their opinion covered by Section (x), such counsel may state
that their opinion and belief are based upon their participation in
conferences with your representatives and with certain officers and
employees of, and independent public accountants for, the Company, at
which the contents of the Registration Statement (including the
Prospectus), as amended or supplemented, if applicable, and related
matters were discussed, (ii) that they have not undertaken to
investigate or verify independently, and do not assume responsibility
for, the accuracy or completeness of the statements contained in the
Registration Statement (including the Prospectus) (other than as
explicitly stated in Sections (iv) and (v) above) and (iii) that in
such participation and review they have relied as to materiality to the
extent they deemed reasonable on officers, employees and other
representatives of the Company and its subsidiaries.
(e) The Representatives shall have received an opinion
(satisfactory to the Representatives and counsel for the
Representatives), dated the Closing Date, of counsel to the Company,
which may be Bose ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or such other counsel to the Company
reasonably acceptable to the Representatives, to the effect that:
(i) each of the Company and the Company's
Significant Subsidiaries has been duly incorporated or
organized, is validly existing as a corporation, partnership
or limited liability company in good standing under the laws
of its jurisdiction of incorporation or organization, as
applicable, and has the corporate, partnership or limited
liability company power and authority to carry on its business
as described in the Prospectus and to own, lease and operate
its properties;
(ii) based solely on certificates of public
officials, each of the Company and the Company's Significant
Subsidiaries is duly qualified and is in good standing as a
foreign corporation, partnership or limited liability company,
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, in each case, where the
failure to be so qualified or in good standing would not
reasonably be expected to have a Material Adverse Effect;
16
(iii) all of the outstanding shares of capital
stock of each Significant Subsidiary corporation has been duly
authorized and validly issued and are fully paid and
non-assessable, and, except as set forth on Schedule B hereto
are owned of record by the Company, free and clear of any
Lien, aside from Liens under the Credit Facility;
(iv) If the Offered Securities are debt
securities: the Indenture and the execution and delivery
thereof has been duly authorized by the Company, and the
execution and delivery of the Offered Securities have been
duly authorized by the Company;
(v) If the Offered Securities are preferred
stock: the Offered Securities have been duly authorized; the
Offered Securities other than any Contract Securities have
been validly issued and are fully paid and nonassessable; any
Contract Securities, when issued, delivered and sold pursuant
to Delayed Delivery Contracts, will be validly issued, fully
paid and non-assessable; and the Offered Securities other than
any Contract Securities conform, and any Contract Securities,
when so issued, delivered and sold, will conform, in all
material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(vi) If the Offered Securities are Common Stock:
the Offered Securities and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(vii) If the Offered Securities are convertible:
the shares of Common Stock initially issuable upon conversion
of the Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued
upon such conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Common Stock;
(viii) The Terms Agreement (including this
Agreement) and the execution and delivery thereof has been
duly authorized by the Company;
(ix) the statements in the Prospectus under the
captions "Legal Proceedings," and "--Employment Agreements,"
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents
and proceedings;
(x) neither the Company nor any of the Company's
Significant Subsidiaries is in violation of its respective
charter, by-laws, partnership agreement or other
organizational document and, to such counsel's actual
knowledge, the Company is not 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 listed under Exhibit 10 to the
Registration Statement (as amended to the date of such
opinion);
17
(xi) assuming (1) the accuracy of the Company's
representations and warranties set forth in Section 2 hereof
with respect to factual matters, and (2) the compliance by the
Company with the covenants set forth in Section 4 hereof,
except as would not reasonably be expected to have a Material
Adverse Effect, the execution, delivery and performance of the
Terms Agreement (including this Agreement) by the Company, the
compliance by the Company with all provisions thereof and the
consummation of the transactions contemplated thereby 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 state
securities or Blue Sky laws) of the State of Indiana, (ii)
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter, bylaws, or
equivalent organizational documents of the Company or the
Credit Facility, as amended, or, to such counsel's actual
knowledge, any indenture, loan agreement, mortgage, lease or
other agreement or instrument listed under Exhibit 10 to the
Registration Statement (as amended to the date of such
opinion), (iii) violate or conflict with any Applicable Law,
or, to such counsel's actual knowledge, any 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, (iv) to such counsel's actual
knowledge, result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or
instrument listed under Exhibit 10 to the Registration
Statement (as amended to the date of such opinion), or (v) to
such counsel's actual knowledge, result in the termination,
suspension or revocation of any Authorization of the Company
or any of its subsidiaries or result in any other impairment
of the rights of the holder of any such Authorization. The
term "Applicable Law" as used in this paragraph means the laws
of the State of Indiana.
(xii) except as disclosed in, contemplated by or
incorporated by reference in the Prospectus, such counsel does
not know of any legal or governmental proceedings pending or
overtly threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which would
reasonably be expected to result, singly or in the aggregate,
in a Material Adverse Effect.
The opinion of Indiana counsel described in this Section 5(e)
shall be rendered to you at the request of the Company and shall so
state therein. In rendering such opinion, such counsel may rely as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of public officials.
(f) The Initial Purchasers shall have received an
opinion, dated such Closing Date, of Wiley, Rein & Fielding, FCC
counsel for the Company, to the effect that:
(i) Except for (i) such FCC consents and
approvals that have already been obtained and are currently in
effect, and (ii) such FCC consents and approvals that may be
required for consummation of certain transactions related to
the offering of securities pursuant to the relevant Terms
Agreement and as described in such Terms Agreement, no consent
or approval of the FCC is required under the Communications
Laws for the issuance and sale under this Agreement by the
Company of the Offered Securities. The execution, delivery and
performance of the Terms Agreement (including this Agreement)
in accordance with the terms thereof by the Company does not
violate the Communications Laws;
18
(ii) the Company and the License Subsidiaries
hold all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits issued by the FCC
to own and to operate the respective Stations as identified
below (as such list may be modified by the Company in any
Terms Agreement in consultation with the Representatives):
CORPORATION STATION
----------- -------
Emmis Radio License Corporation KALC-FM
KFTK-FM
KIHT-FM
KKFR-FM
KKLT-FM
KMVP-AM
KPNT-FM
KPWR-FM
KSHE-FM
KTAR-AM
KXPK-FM
KZLA-FM
WENS-FM
WIBC-AM
WKQX-FM
WNOU-FM
WMLL-FM
WQCD-FM
WTHI-FM
WYXB-FM
WWVR-FM
Emmis License Corporation of New York WQHT-FM
Emmis Radio License Corporation of New York WRKS-FM
Emmis Television License Corporation KAII-TV
KBIM-TV
KGUN-TV
KGMB-TV
KGMD-TV
KGMB-TV
KHAW-TV
KHON-TV
KMTV-TV
KOIN-TV
KREZ-TV
KRQE-TV
WALA-TV
WFTX-TV
WKCF-TV
WLUK-TV
WSAZ-TV
19
CORPORATION STATION
----------- -------
WTHI-TV
WVUE-TV
Emmis Television License Corporation
of Topeka KSNT-TV
Emmis Television License Corporation
of Wichita KSNW-TV
KSNC-TV
KSNG-TV
KSNK-TV
Each of the FCC Licenses is currently in effect in accordance with its
terms and held by the Company or one of the License Subsidiaries, as
identified in such counsel's opinion.
(iii) Such counsel knows of no proceedings pending
or threatened in writing under the Communications Laws against
the Company, the License Subsidiaries or the Stations before
or by the FCC or any court having jurisdiction over matters
arising under the Communications Laws, relating to any
invalidity, revocation or adverse modification of any FCC
Licenses, the violation of the Communications Laws, or the
reconsideration or rescission of the issuance, or consent to
the transfer or assignment, of any of the FCC Licenses, that
would reasonably be expected to have a Material Adverse
Effect;
(iv) The statements in the Prospectus under the
captions "Risk Factors--Our need to comply with comprehensive,
complex and sometimes unpredictable federal regulations could
have an adverse effect on our businesses," "--Any changes in
current FCC ownership regulations may negatively impact our
ability to compete or otherwise harm our business operations,"
"--If we are not able to obtain regulatory approval for future
acquisitions, our growth may be impaired," "--The planned
industry conversion to digital television could adversely
affect our broadcast business" and "--The new federal
satellite television legislation could adversely affect our
broadcast business," and under the captions "Business--Federal
Regulation" and "--Competition," insofar as such statements
constitute a summary of Communications Laws and material
proceedings thereunder and legal conclusions with respect
thereto, fairly present such information contained under such
captions in light of the circumstances under which such
statements are made;
(g) Such counsel has no reason to believe that any part
of the Registration Statement, including the Prospectus, or any
amendment thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that, in rendering the opinion in this
subparagraph (g), counsel may qualify its opinion based on the scope of
its engagement as FCC counsel for the Company.
(h) If the Offered Securities are debt securities: the
Underwriters shall have received a counterpart, conformed as executed,
of the Indenture which shall have been entered into by the Company and
the Trustee.
20
(i) The Company and its subsidiaries, as applicable,
shall have executed such additional agreements, including any
guarantees, deposit agreements, warrant agreements and any other
agreements and documents pertaining to the issuance and sale of the
Offered Securities, as shall be specified in the Terms Agreement, and
the Underwriters shall have received duly executed original copies
thereof;
(j) The Representatives shall have received such
additional representations and warranties regarding the due
authorization, execution and delivery of, and such opinions from
counsel to the Company with respect to the due authorization,
execution, delivery and enforceability of, such additional agreements
or other documents specified in the immediately preceding paragraph, as
requested by the Representatives and specified in the Terms Agreement.
(k) The Company shall not have failed in any material
respect at or prior to the Closing Date to perform or comply with any
of the agreements contained in the Terms Agreement (including this
Agreement) and required to be performed or complied with by the
Company, as the case may be, at or prior to the Closing Date.
(l) The Representatives shall have received from ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters. In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
may rely as to the incorporation of the Company and all other matters
governed by Indiana law upon the opinion of Bose, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
referred to above.
(m) The Representatives shall have received a
certificate, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Company in the Terms Agreement (including this
Agreement) are true and correct, (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission and, (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development involving a prospective material adverse change, in the
condition (financial or other), business, management or operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the
Representatives reasonably request. The Lead Underwriter may in its
sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters under this Agreement
and the Terms Agreement.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless each Underwriter, its partners, directors
and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any
21
material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in the Terms Agreement. The foregoing
indemnity agreement, with respect to a preliminary Prospectus, shall
not inure to the benefit of any Underwriter from whom the person
asserting any loss, claim, damage, liability or expense purchased
Offered Securities, or any person controlling such Underwriter, if
copies of the Prospectus were timely delivered to the Underwriter
pursuant to Section 4 hereof and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Offered Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise
to such loss, claim, damage, liability or expense.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company, its directors and officers and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above or
to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
22
indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of
such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or
behalf of an indemnified party.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party, in
lieu of indemnifying the indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Securities
or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section shall
be in addition to any liability
23
which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed the Registration Statement
and to each person, if any, who controls the Company within the meaning
of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the Terms
Agreement and the aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered Securities, the Lead
Underwriter may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the provisions of this
Agreement), to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount (if
debt securities) or number of shares (if preferred stock or Common Stock) of
Offered Securities and arrangements satisfactory to the Lead Underwriter and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, the Terms Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 8. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default. If the Offered Securities are debt securities or preferred stock,
the respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts (if debt securities)
or numbers of shares (if preferred stock) of the Offered Securities set forth
opposite their names in the Terms Agreement as a result of Delayed Delivery
Contracts entered into by the Company.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of the Offered
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Offered Securities by
the Underwriters is not consummated for any reason other than solely because of
the termination of the Terms Agreement pursuant to Section 7 or the occurrence
of any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section
5(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. NOTICES. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for the
purpose of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Associate General Counsel,
(317-266-0100).
24
10. SUCCESSORS. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation thereunder.
11. REPRESENTATION OF UNDERWRITERS. Any Representatives will act
for the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under such Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by the
Lead Underwriter will be binding upon all the Underwriters.
12. COUNTERPARTS. The Terms Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
25
SCHEDULE B
Emmis Operating Company, an Indiana corporation
Emmis License Corporation, a California corporation
Emmis Television License Corporation, a California corporation
Emmis Radio License Corporation, a California corporation
Emmis Radio Corporation, an Indiana corporation
Emmis Publishing Corporation, an Indiana corporation
Emmis Indiana Broadcasting, L.P., an Indiana limited partnership
Emmis Television Broadcasting, L.P., an Indiana limited partnership
Sch B
ANNEX I
(THREE COPIES OF THIS DELAYED DELIVERY CONTRACT
SHOULD BE SIGNED AND RETURNED TO THE ADDRESS
SHOWN BELOW SO AS TO ARRIVE NOT LATER THAN 9:00 A.M.,
NEW YORK TIME, ON ........................ ............, .....(1 ))
DELAYED DELIVERY CONTRACT
-------------------------
[INSERT DATE OF INITIAL PUBLIC OFFERING]
[Insert Name Of Issuer]
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Transactions Advisory Group
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from [Emmis Communications
Corporation/Emmis Operating Company], an Indiana corporation ("COMPANY"), and
the Company agrees to sell to the undersigned, [IF ONE DELAYED CLOSING,
INSERT--as of the date hereof, for delivery on , ("DELIVERY DATE"),]
[$]..............[shares]
--principal amount--of the Company's [INSERT TITLE OF SECURITIES]
("SECURITIES"), offered by the Company's Prospectus dated , and a Prospectus
Supplement dated _______, relating thereto, receipt of copies of which is hereby
acknowledged, at-- % of the principal amount thereof plus accrued interest, if
any,--$ per share plus accrued dividends, if any,--and on the further terms and
conditions set forth in this Delayed Delivery Contract ("CONTRACT").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
------------------------
(1) INSERT DATE WHICH IS THIRD FULL BUSINESS DAY PRIOR TO CLOSING DATE
UNDER THE TERMS AGREEMENT.
A-1
PRINCIPAL AMOUNT
NUMBER
DELIVERY DATE OF SHARES
------------- ---------
______________________________ _________
______________________________ _________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at the office of at A.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive [IF DEBT ISSUE, INSERT--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount---number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
A-2
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
(NAME OF PURCHASER)
BY ___________________________________
___________________________________
(TITLE OF SIGNATORY)
___________________________________
___________________________________
(ADDRESS OF PURCHASER)
Accepted, as of the above date.
[EMMIS COMMUNICATIONS CORPORATION/EMMIS OPERATING COMPANY]
By____________________________
[INSERT TITLE]
A-3
