Exhibit 1.1
World Wrestling Federation Entertainment, Inc.
8,000,000 Shares of Class A Common Stock
U.S. UNDERWRITING AGREEMENT
October __, 1999
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON
XXXXXXX XXXXX & CO.
WIT CAPITAL CORPORATION
October __, 1999
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx & Co.
Wit Capital Corporation
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
World Wrestling Federation Entertainment, Inc., a corporation organized and
existing under the laws of Delaware (the "Company"), proposes, subject to the
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terms and conditions stated herein, to issue and sell to Bear Xxxxxxx & Co.
Inc., Credit Suisse First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Wit Capital Corporation, as representatives (the
"Representatives") of the several underwriters named on Schedule I hereto
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(collectively, the "Underwriters"), an aggregate of 8,000,000 shares (the "Firm
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Shares") of its Class A common stock, $0.01 par value (the "Common Stock") and,
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for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, at the option of the Underwriters, up to an additional
1,200,000 shares (the "Additional Shares") of Common Stock. The Firm Shares and
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any Additional Shares purchased by the Underwriters are referred to herein as
the "Shares." The Shares are more fully described in the Registration Statement
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referred to below.
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 2,300,000
shares of Common Stock (the "International Shares"), including the over-
allotment option thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom Bear,
Xxxxxxx International Limited, Credit Suisse First Boston (Europe) Limited and
Xxxxxxx Xxxxx International are acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the International
Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Intersyndicate Agreement") that
provides, among other things, for the transfer of shares of Common Stock between
the two syndicates. Two forms of the prospectus are being used in connection
with the offering and sale of shares of Common Stock contemplated by the
foregoing, one relating to the Shares hereunder and the other relating to the
International Shares. The latter form of prospectus will be identical to the
former except for a substitute front cover page. Except as used in Sections 2,
3, 9 and 11 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all the shares of Common Stock that may
be sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
The Company has consummated or will consummate the following transactions
(each a "Concurrent Transaction" and, collectively, the "Concurrent
Transactions") prior to or concurrent with
the closing of the Offering (as defined herein): (i) the contribution to the
Company by Xxxxxxx X. XxXxxxx and the trust he created for the benefit of his
children of the stock of World Wrestling Federation Entertainment Canada, Inc.
and Xxxxxxxxx Music Publishing, Inc.; (ii) the amendment and restatement of the
Company's charter to authorize, among other matters, Class A and Class B common
stock and the reclassification of the Company's common stock into Class A and
Class B common stock at the rate of 566,670 shares for each outstanding share of
common stock; and (iii) the termination of the Company's status as a Subchapter
S corporation.
1. Representations and Warranties of the Company. The Company represents
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and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-84327),
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and any amendments thereto, and related preliminary prospectuses for the
registration under the Securities Act of 1933, as amended (the "Securities
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Act"), of shares of Common Stock, which registration statement, as amended,
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has been declared effective by the Commission and copies of which have
heretofore been delivered to the Underwriters. The registration statement,
as amended at the time it became effective, including the exhibits and
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act or
otherwise, is hereinafter referred to as the "Registration Statement." If
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the Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional shares of Common Stock (a "Rule 462(b) Registration
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Statement"), then, unless otherwise specified, any reference herein to the
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term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than the Registration Statement, no other
document has heretofore been filed with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Securities Act (the "Securities Act Regulations"),
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each in the form heretofore delivered to the Underwriters). No stop order
suspending the effectiveness of either the Registration Statement or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the Commission. The Company, if required by the
Securities Act Regulations, proposes to file a prospectus with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations. That
prospectus, in the form in which it is to be filed with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations, is hereinafter
referred to as the "Prospectus," except that, if any revised prospectus or
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prospectus supplement shall be provided to the Underwriters by the Company
for use in connection with the offering and sale of the Shares (the
"Offering") which differs from the Prospectus (whether or not such revised
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prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the Securities Act Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use; provided that the term
"Prospectus" shall be deemed to include any wrapper or supplement thereto
prepared in connection with the distribution of any Reserved Shares (as
defined in Section 2(f) below). Any preliminary prospectus or prospectus
subject to completion included in the Registration Statement or filed with
the Commission pursuant to Rule 424 under the Securities Act is hereafter
called a "Preliminary Prospectus." All references in this Agreement to the
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Registration Statement, a Rule 462(b) Registration Statement, a Preliminary
Prospectus and the Prospectus, or any amendments of or supplements to any
of the foregoing, shall be deemed to include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
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(b) The preliminary prospectus, dated as of September 22, 1999, complied
in all material respects with the requirements of the Securities Act and
the Securities Act Regulations, and did not contain 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, in the light of the
circumstances under which they were made, not misleading. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and as of the Closing Date (as defined in Section 2(b) below),
complied and will comply in all material respects with the requirements of
the Securities Act and the Securities Act Regulations, and did not and will
not contain 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. The Prospectus, as of the date hereof
(unless the term "Prospectus" refers to a prospectus that has been provided
to the Underwriters by the Company for use in connection with the offering
of the Shares, which differs from the Prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations, in which case at
the time it is first provided to the Underwriters for such use) and on the
Closing Date, does not and will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this Section 1(b) shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by any Underwriter expressly for use in
the Registration Statement or the Prospectus. Each Preliminary Prospectus
and Prospectus filed as part of the Registration Statement, as part of any
amendment thereto or pursuant to Rule 424 under the Securities Act
Regulations, if filed by electronic transmission pursuant to Regulation S-T
under the Securities Act, was identical to the copy thereof delivered to
the Underwriters for use in connection with the Offering (except as may be
permitted by Regulation S-T under the Securities Act). There are no
contracts or other documents required to be described in the Prospectus or
filed as exhibits to the Registration Statement under the Securities Act
that have not been described or filed therein, and there are no business
relationships or related-party transactions involving the Company or any of
its subsidiaries or any other person required to be described in the
Prospectus that have not been described therein.
(c) Each of the Company and its subsidiaries (i) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, (ii) has all requisite
corporate power and authority to own, lease and operate its properties and
to carry on its business as it is currently being conducted and as
described in the Prospectus, and (iii) is duly qualified and in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified or in good standing does not and could not reasonably be
expected to (x) individually or in the aggregate, result in a material
adverse effect on the properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the Company and
its subsidiaries, taken as a whole, (y) interfere with or adversely affect
the issuance or marketability of the Shares pursuant hereto or (z) in any
manner draw into question the validity of this Agreement (any of the events
set forth in clauses (x), (y) or (z) being a "Material Adverse Effect").
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(d) All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable,
and were not issued in violation of, or subject to, any preemptive or
similar rights. The Shares, when issued, delivered and sold in accordance
with this Agreement, will be duly authorized and validly issued, fully paid
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and nonassessable, and will not be issued in violation of, or subject to,
any preemptive or similar rights. As of July 30, 1999, after giving effect
to the issuance and sale of the Shares pursuant hereto, the Company would
have had the pro forma consolidated capitalization as set forth in the
Prospectus under the caption "Capitalization."
(e) All of the outstanding capital stock of, or other ownership interests
in, the Company's subsidiaries are owned by the Company, free and clear of
any security interest, claim, lien, limitation on voting rights or
encumbrance; and all such securities have been duly authorized and validly
issued, are fully paid and nonassessable, and were not issued in violation
of any preemptive or similar rights.
(f) Except as disclosed in the Prospectus, there are not currently, and
will not be as a result of the Offering, any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire or
instruments convertible into or exchangeable for, any capital stock or
other equity interest of the Company or any of its subsidiaries.
(g) The Common Stock (including the Shares) is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and is listed for quotation on the Nasdaq National Market
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("Nasdaq"). The Company has taken no action designed to delist or
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terminate the registration of, or likely to have the effect of delisting or
terminating the registration of, the Common Stock under the Exchange Act or
from Nasdaq, nor has the Company received any notification that the
Commission or Nasdaq is contemplating terminating such registration or
listing.
(h) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder
and to consummate the transactions contemplated hereby, including, without
limitation, the corporate power and authority to issue, sell and deliver
the Shares as provided herein.
(i) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except insofar as the indemnification and contribution provisions hereof
may be limited by applicable law or equitable principles and subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity.
(j) The Tax Indemnification Agreement has been duly and validly
authorized, executed and delivered by the Company and is the legal, valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except insofar as the indemnification and
contribution provisions thereof may be limited by applicable law or
equitable principles and subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights
of creditors generally and subject to general principles of equity.
(k) Neither the Company nor any of its subsidiaries is, nor after giving
effect to the Offering will be, (i) in violation of its charter or bylaws,
(ii) in default in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust, contract or other agreement or instrument to which
it is a party or by which it is or may be bound or to which any of
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its properties is or may be subject, or (iii) in violation of any local,
state or federal law, statute, ordinance, rule, regulation, requirement,
judgment or court decree applicable to the Company or any of its
subsidiaries or any of their assets or properties (whether owned or leased)
other than, in the case of clauses (ii) and (iii), any default or violation
that (A) could not reasonably be expected to have a Material Adverse Effect
or (B) is disclosed in the Prospectus. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default by the
Company under any such document or instrument, except any default that (x)
could not reasonably be expected to have a Material Adverse Effect or (y)
is disclosed in the Prospectus.
(l) None of (i) the execution, delivery or performance by the Company of
this Agreement, (ii) the issuance and sale of the Shares, or (iii) the
consummation by the Company of the transactions contemplated hereby or of
any of the Concurrent Transactions violates, conflicts with, or constitutes
a breach of any of the terms or provisions of, or a default under (or an
event that with notice or the lapse of time or both would constitute a
default), or requires consent which has not been obtained under, or results
in the imposition of a lien or encumbrance on any properties of the Company
or any of its subsidiaries, or an acceleration of any indebtedness of the
Company or any of its subsidiaries pursuant to, (A) the charter or bylaws
of the Company or any of its subsidiaries, (B) any bond, debenture, note,
indenture, mortgage, deed of trust, contract 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 is or may be bound or to which
any of their properties is or may be subject, (C) any statute, rule or
regulation applicable to the Company or any of its subsidiaries or any of
their assets or properties or (D) any judgment, order or decree of any
court or governmental agency or authority having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties,
except in the case of clauses (B), (C) and (D) for such violations,
conflicts, breaches, defaults, failures to obtain consent, impositions of
liens or accelerations that (x) could not reasonably be expected to have a
Material Adverse Effect or (y) are disclosed in the Prospectus.
(m) Other than as described in the Prospectus, no consent, approval,
authorization or order of, or filing, registration, qualification, license
or permit of or with any court or governmental agency or authority is
required for (A) the execution and delivery of and performance by the
Company of the obligations hereunder, (B) the issuance and sale of the
Shares, or (C) the consummation by the Company of the transactions
contemplated hereby or of any of the Concurrent Transactions, except (x)
such as have been obtained or made under the Securities Act and state
securities or blue sky laws and regulations or such as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") or (y)
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where the failure to obtain any such consent, approval, authorization or
order of, or to make or obtain any filing, registration, qualification,
license or permit could not reasonably be expected to have a Material
Adverse Effect.
(n) There is (i) no action, suit, investigation or proceeding before or
by any court or governmental agency or authority now pending or, to the
knowledge of the Company or any of its subsidiaries, threatened to which
the Company or any of its subsidiaries is or may be a party or to which the
business or property of the Company or any of its subsidiaries is or may be
subject, (ii) no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency, or (iii) no injunction,
restraining order or order of any nature by a federal or state court or
foreign court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject or to which the business, assets, or
property of the Company or any of its subsidiaries are or may be subject
that, in the case of clauses (i), (ii) and (iii) above, (A)
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is required to be disclosed in the Prospectus and is not so disclosed, or
(B) could reasonably be expected to have a Material Adverse Effect.
(o) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Shares or prevents or suspends the use of the
Prospectus; no injunction, restraining order or order of any kind by a
federal or state court of competent jurisdiction has been issued that
prevents the issuance of the Shares or prevents or suspends the sale of the
Shares in any jurisdiction referred to in Section 1(c) hereof or that could
adversely affect the consummation of the transactions contemplated hereby
or of any of the Concurrent Transactions; and every request of any
securities authority or agency of any jurisdiction for additional
information has been complied with in all material respects.
(p) No labor problem or disturbance with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
threatened which could reasonably be expected to have a Material Adverse
Effect.
(q) Neither the Company nor any of its subsidiaries has violated (A) any
federal, state or local law or foreign law relating to discrimination in
hiring, promotion or pay of employees, (B) any applicable wage or hour laws
or (C) any provision of the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations
thereunder (collectively, "ERISA"), which in the case of clause (A), (B) or
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(C) above could reasonably be expected to have a Material Adverse Effect.
(r) Neither the Company nor any of its subsidiaries has violated any
environmental, safety or similar law or regulation applicable to it or its
business or property relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), lacks any permit, license or other
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approval required of it under applicable Environmental Laws or is violating
any term or condition of such permit, license or approval, which could
reasonably be expected to have a Material Adverse Effect.
(s) Each of the Company and its subsidiaries has (i) good and marketable
title to all of the properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances and
restrictions, except such as are described in the Prospectus or as could
not reasonably be expected to have a Material Adverse Effect, (ii) peaceful
and undisturbed possession of its properties under all material leases to
which it is a party as lessee, (iii) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made
all declarations and filings with, all federal, state and local
authorities, all self-regulatory authorities and all courts and other
tribunals (each an "Authorization") necessary to engage in the business
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conducted by it in the manner described in the Prospectus, except as
described in the Prospectus or where the failure to hold any such
Authorization could not reasonably be expected to have a Material Adverse
Effect and (iv) not received any notice that any governmental body or
agency is considering limiting, suspending or revoking any such
Authorization. Except where the failure to be in full force and effect
could not reasonably be expected to have a Material Adverse Effect, all
such Authorizations are valid and in full force and effect, and each of the
Company and its subsidiaries is in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities having jurisdiction with respect
thereto. All material leases to which the
6
Company or any of its subsidiaries is a party are valid and binding, and no
default by the Company or any of its subsidiaries has occurred and is
continuing thereunder and, to the knowledge of the Company and its
subsidiaries, no material defaults by the landlord are existing under any
such lease that could reasonably be expected to have a Material Adverse
Effect.
(t) Except as described in the Prospectus, the Company and its
subsidiaries own, possess or have the right to employ such patents, patent
rights, licenses, inventions, copyrights, know-how, trade secrets and other
proprietary or confidential information, software, systems or procedures,
trademarks, service marks and trade names, inventions, computer programs,
technical data and information (collectively, the "Intellectual Property
---------------------
Rights") presently employed by it in connection with the businesses now
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operated by it or which are proposed to be operated by it or its
subsidiaries. The Intellectual Property Rights are owned, to the Company's
knowledge, free and clear of and without violating any right, claimed
right, charge, encumbrance, pledge, security interest, restriction or lien
of any kind of any other person, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
any asserted Intellectual Property Rights of others with respect to any of
the foregoing, except as disclosed in the Prospectus or as could not
reasonably be expected to have a Material Adverse Effect. The use of the
Intellectual Property Rights in connection with the business and operations
of the Company and its subsidiaries does not infringe on the rights of any
person, except as disclosed in the Prospectus or could not reasonably be
expected to have a Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries nor, to the knowledge
of the Company, any of their respective officers, directors, partners,
employees, agents or affiliates or any other person acting on behalf of the
Company or any of its subsidiaries has, directly or indirectly, given or
agreed to give any money, gift or similar benefit to any customer,
supplier, employee or agent of a customer or supplier, official or employee
of any governmental agency (domestic or foreign), instrumentality of any
government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who was, is or may be in a
position to help or hinder the business of the Company or any of its
subsidiaries (or assist the Company or any of its subsidiaries in
connection with any actual or proposed transaction), which (i) might
subject the Company or any of its subsidiaries to any damage or penalty in
any civil, criminal or governmental litigation or proceeding (domestic or
foreign), (ii) if not given in the past, might have had a material adverse
effect on the assets, business or operations of the Company or any of its
subsidiaries or (iii) if not continued in the future, might have a Material
Adverse Effect.
(v) All material tax returns required to be filed by the Company and each
of its subsidiaries in all jurisdictions have been so filed. All taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due or claimed to be due from such entities or that are due
and payable have been paid, other than those being contested in good faith
and for which adequate reserves have been provided or those currently
payable without penalty or interest. To the knowledge of the Company, there
are no material proposed additional tax assessments against the Company or
the assets or property of the Company or any of its subsidiaries. The
Company has provided adequate charges, accruals and reserves as set forth
in the financial statements included in the Prospectus in respect of all
material federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
consolidated subsidiaries has not been finally determined. The Company has
made all filings necessary to be treated as an S corporation, as defined in
Section 1361(a) of the Internal Revenue
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Code of 1986, as amended, and the regulations and published interpretations
thereunder (the "Code") from the date of the Company's election thereof
through the date hereof.
(w) Neither the Company nor any of its subsidiaries is, nor upon
consummation of the transactions contemplated hereby or of any of the
Concurrent Transactions will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(x) Except as disclosed in the Prospectus, there are no holders of
securities of the Company or any of its subsidiaries who, by reason of the
execution by the Company of this Agreement or the consummation by the
Company of the transactions contemplated hereby, have the right to request
or demand that the Company or any of its subsidiaries register under the
Securities Act or analogous foreign laws and regulations securities held by
them, other than any such right that has been duly waived.
(y) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with its 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 accountability for
assets; (iii) access to assets is permitted only in accordance with its
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 therein.
(z) Each of the Company and its subsidiaries maintains insurance covering
its properties, operations, personnel and businesses. Such insurance
insures against such losses and risks as are adequate in accordance with
customary industry practice to protect the Company and its subsidiaries and
their respective businesses. Neither the Company nor any of its
subsidiaries has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is outstanding
and duly in force on the date hereof, subject only to changes made in the
ordinary course of business, consistent with past practice, which do not,
individually or in the aggregate, materially alter the coverage thereunder
or the risks covered thereby. The Company has no knowledge that it or any
subsidiary will not be able (i) to renew its existing insurance coverage as
and when such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct its
business as now conducted or as presently contemplated and at a cost that
would not result in a Material Adverse Effect.
(aa) The Company has not (i) taken, directly or indirectly, any action
designed to, or that could reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or (ii) since the date of
the Preliminary Prospectus (A) sold, bid for, purchased or paid any person
any compensation for soliciting purchases of, Shares or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
(bb) The Company and its subsidiaries and any "employee benefit plan" (as
defined under ERISA) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in
compliance in all material respects with ERISA. "ERISA Affiliate" means,
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with respect to the Company or any of its subsidiaries, any member of any
group
8
of organizations described in Section 414(b), (c), (m) or (o) of the
Code of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any "employee benefit plan" established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates. No
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit
liabilities" (as defined under ERISA). Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "employee benefit plan" or (ii)
Section 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of
the Code is so qualified, and nothing has occurred, whether by action or
failure to act, that would cause the loss of such qualification.
(cc) Subsequent to the dates as of which information is given in the
Prospectus and up to the Closing Date, except as set forth in the
Prospectus, (i) neither the Company nor any of its subsidiaries has
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
subsidiaries taken as a whole, nor entered into any transaction not in the
ordinary course of business, (ii) neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, that will be material to the Company and its subsidiaries taken
as a whole, (iii) there has not been, individually or in the aggregate, any
change or development that could reasonably be expected to have a Material
Adverse Effect; (iv) there has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its subsidiaries on any
class of its capital stock; (v) there has been no change in accounting
methods or practices (including any change in depreciation or amortization
policies or rates) by the Company or any of its subsidiaries; (vi) there
has been no revaluation by the Company or any of its subsidiaries of any of
their assets; (vii) there has been no increase in the salary or other
compensation payable or to become payable by the Company or any of its
subsidiaries to any of their officers, directors, employees or advisors,
nor any declaration, payment or commitment or obligation of any kind for
the payment by the Company or any of its subsidiaries of a bonus or other
additional salary or compensation to any such person; (viii) there has been
no amendment or termination of any material contract, agreement or license
to which the Company or any of its subsidiaries is a party or by which it
is bound; (ix) there has been no waiver or release of any material right or
claim of the Company or any subsidiary, including any write-off or other
compromise of any material account receivable of the Company or any
subsidiary; and (x) there has been no change in pricing or royalties set or
charged by the Company or any subsidiary to their respective customers or
licensees or in pricing or royalties set or charged by persons who have
licensed Intellectual Property Rights to the Company or any of its
subsidiaries.
(dd) Deloitte & Touche LLP, who have expressed their opinion with respect
to the financial statements (which term as used in this Agreement includes
the related notes thereto) and supporting schedules included in the
Prospectus, are independent public or certified public accountants within
the meaning of Regulation S-X under the Securities Act and the Exchange
Act.
(ee) The financial statements, together with the related notes, included
in the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of and at the
dates indicated and the results of their operations and
9
cash flows for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
expressly stated in the related notes. The financial data set forth in the
Prospectus under the captions "Prospectus SummarySummary Combined Financial
and Other Data," "Selected Historical Combined Financial and Other Data"
and "Capitalization" fairly present the information set forth therein on a
basis consistent with that of the audited financial statements contained in
the Prospectus.
(ff) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and any other person that
would give rise to a valid claim against the Company or any of the
Underwriters for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Shares.
(gg) The statements (including the assumptions described therein)
included in the Prospectus (i) are within the coverage of Rule 175(b) under
the Securities Act to the extent such data constitute forward looking
statements as defined in Rule 175(c) and (ii) were made by the Company with
a reasonable basis and reflect the Company's good faith estimate of the
matters described therein.
(hh) Each of the Company and its subsidiaries has implemented Year 2000
compliance programs designed to ensure that its computer systems and
applications will function properly beyond 1999. The Company believes that
adequate resources have been allocated for this purpose and expects the
Company's and its subsidiaries' Year 2000 date conversion programs to be
completed on a timely basis.
(ii) Each certificate signed by any officer of the Company and delivered
to the Underwriters or Underwriters' Counsel pursuant to this Agreement
shall be deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
The Company acknowledges that each of the Underwriters and, for
purposes of the opinions to be delivered to the Underwriters pursuant to Section
6 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.
2. Purchase, Sale and Delivery of the Shares.
-----------------------------------------
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the
Underwriters, severally and not jointly, agree to purchase from the
Company, at a purchase price per share of $__, the number of Firm Shares
set forth opposite the name of each Underwriter in Schedule I hereto plus
----------
any additional number of Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates for,
the Firm Shares shall be made at the office of Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx, 00000, or at such other place as
shall be agreed upon by the Underwriters and the Company, at 10:00 A.M. on
_________, 1999 (unless postponed in accordance with the provisions
10
of Section 9 hereof) after the determination of the public offering price
of the Firm Shares, or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer
------------
in same day funds, against delivery to the Underwriters of certificates for
the Shares to be purchased by them. Certificates for the Firm Shares shall
be registered in such name or names and in such authorized denominations as
the Underwriters may request in writing at least two full business days
prior to the Closing Date. The Company will permit the Underwriters to
examine and package such certificates for delivery at least one full
business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters the option
to purchase up to 1,200,000 Additional Shares at the same purchase price
per share to be paid by the Underwriters to the Company for the Firm Shares
as set forth in this Section 2 for the sole purpose of covering over-
allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth
day following the date of the Prospectus, by written notice by the
Underwriters to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and
the date and time, as reasonably determined by the Underwriters, when the
Additional Shares are to be delivered (such date and time being herein
sometimes referred to as an "Additional Closing Date"); provided, however,
-----------------------
that no Additional Closing Date shall be earlier than the Closing Date or
earlier than the second full business day after the date on which the
option shall have been exercised or later than the eighth full business day
after the date on which the option shall have been exercised (unless such
time and date are postponed in accordance with the provisions of Section 9
hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as the Underwriters
may request in writing at least two full business days prior to the
Additional Closing Date. The Company will permit the Underwriters to
examine and package such certificates for delivery at least one full
business day prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each Underwriter shall
be the number that bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
----------
increased as set forth in Section 9 hereof) bears to the total number of
Firm Shares being purchased from the Company, subject, however, to such
adjustments to eliminate any fractional shares as the Underwriters in their
sole discretion shall make.
(e) Payment for the Additional Shares being purchased at such time shall
be made by wire transfer in same day funds payable to the order of the
Company at the office of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx, 00000, or such other location as may be mutually
acceptable, upon delivery of the certificates for such Additional Shares to
the Underwriters.
(f) The Company and the Underwriters agree that up to ______ of the Firm
Shares to be purchased by the Underwriters (the "Reserved Shares") shall be
---------------
reserved for sale by the Underwriters to certain individuals and entities
having business relationships with the Company, as part of the distribution
of the Shares by the Underwriters, subject to the terms of this Agreement,
the requirements of the NASD and all applicable laws, rules and
regulations. To the extent that oral confirmations for the purchase of any
Reserved Shares are not received from any such individuals and entities
having business relationships with the Company by the close of
11
business on the first business day after the date of this Agreement, such
Reserved Shares may be offered to the public as part of the Offering.
3. Offering. Upon the Underwriters' authorization of the release of the
--------
Firm Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms set forth in the Prospectus.
4. Covenants of the Company. The Company agrees with each of the
------------------------
Underwriters that:
(a) The Company shall notify the Underwriters immediately (and, if
requested by the Underwriters, shall confirm such notice in writing) (i)
when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iii) of the delivery to the Commission for filing
of the Prospectus or any amendment of or supplement to the Registration
Statement or the Prospectus or any document to be filed pursuant to the
Exchange Act during any period when the Prospectus is required to be
delivered under the Securities Act, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or of the initiation or
threatening of any proceeding therefor, (v) of the receipt of any comments
or inquiries from the Commission, and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If the Commission proposes to issue or issues
a stop order at any time, the Company shall make every reasonable effort to
prevent the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible. The Company shall not file any
post-effective amendment to the Registration Statement or any amendment of
or supplement to the Prospectus (including any revised prospectus that the
Company proposes for use by the Underwriters in connection with the
offering of the Shares, which differs from the prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations,
whether or not such revised prospectus is required to be filed pursuant to
Rule 424(b) of the Securities Act Regulations) to which the Underwriters or
Underwriters' Counsel (as defined below) reasonably object, shall furnish
the Underwriters with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and shall not file any such amendment or supplement or use any such
prospectus to which the Underwriters or Underwriters' Counsel reasonably
object.
(b) If any event occurs as a result of which the Prospectus would, in the
reasonable judgment of the Underwriters or the Company, include an 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, in the light
of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend or supplement the Prospectus or the
Registration Statement to comply with the Securities Act or the Securities
Act Regulations, the Company shall notify the Underwriters promptly and
prepare and file with the Commission an appropriate amendment or supplement
(in form and substance reasonably satisfactory to the Underwriters) that
will correct such statement or omission or will effect such compliance.
(c) The Company has delivered to the Underwriters five signed copies of
the Registration Statement as originally filed, including exhibits, and all
amendments thereto, and the Company shall promptly deliver to each of the
Underwriters, from time to time during the
12
period that the Prospectus is required to be delivered under the Securities
Act, such number of copies of the Prospectus and the Registration
Statement, and all amendments of and supplements to such documents, if any,
as the Underwriters may reasonably request.
(d) The Company shall endeavor, in good faith and in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as the Underwriters may designate and
to maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event will the Company be obligated
in connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process.
(e) The Company shall make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters as soon as practicable, but not later than 45 days after the
end of its fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs (or, if such fiscal
quarter is the Company's fourth fiscal quarter, not later than 90 days
after the end of such quarter), an earnings statement (in form complying
with the provisions of Rule 158 of the Securities Act Regulations) covering
a period of at least twelve consecutive months beginning after the
effective date of the Registration Statement (as defined in Rule 158(c) of
the Securities Act Regulations).
(f) During the period of 180 days from the date of the Prospectus, the
Company shall not, directly or indirectly, without the prior written
consent of Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), issue, offer or agree
------------
to sell, grant any option for the sale of, pledge, make any short sale of,
maintain any short position with respect to, establish or maintain a "put
equivalent position" (within the meaning of Rule 16a-1(h) under the
Exchange Act) with respect to, enter into any swap, derivative transaction
or other arrangement (whether any such transaction is to be settled by
delivery of Common Stock, other securities, cash or other consideration)
that transfers to another, in whole or in part, any of the economic
consequences of ownership or otherwise dispose of, any Common Stock (or any
securities convertible into, exercisable for or exchangeable for Common
Stock) or interest therein of the Company or any capital stock of any of
its subsidiaries, except that the Company may issue (i) shares of Common
Stock and options to purchase shares of Common Stock under its 1999 Long-
Term Incentive Plan, (ii) shares of Common Stock in connection with
strategic relationships and acquisitions of businesses, technologies and
products complementary to those of the Company, so long as the recipients
of such shares agree to be bound by a lock-up agreement, substantially in
the form of Exhibit B hereto (which shall provide that any transferees and
---------
assigns of such recipients will be bound by the lock-up agreement), for the
remainder of such 180-day period.
(g) During a period of three years from the date of the Prospectus, the
Company shall furnish to the Underwriters copies of (i) all reports to its
stockholders and (ii) all reports, financial statements and final proxy or
information statements filed by the Company with the Commission or any
national securities exchange.
(h) The Company shall apply the proceeds from the sale of the Shares as
set forth under "Use of Proceeds" in the Prospectus.
(i) If the Company elects to rely upon Rule 462(b) of the Securities Act
Regulations, the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., New York City time, on the date of this Agreement,
no stop order suspending the effectiveness of
13
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission, and all requests for additional information on the part of
the Commission shall have been complied with to the Underwriters'
reasonable satisfaction.
(j) The Company, during the period when the Prospectus is required to be
delivered under the Securities Act or the Exchange Act, shall file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time periods set forth in the
Exchange Act and the rules and regulations thereunder.
5. Payment of Expenses. Whether or not the transactions contemplated by
-------------------
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (a) the
preparation, printing, duplication, filing and distribution of the Registration
Statement, as originally filed and all amendments thereto (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
thereof or supplements thereto (including, without limitation, fees and expenses
of the Company's accountants and counsel), the underwriting documents (including
this Agreement, the Agreement Among Underwriters and the Selling Agreement) and
all other documents related to the public offering of the Shares (including
those supplied to the Underwriters in quantities as hereinabove stated), (b) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (c) the qualification of the Shares
under state or foreign securities or blue sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Memorandum" and the fees
of counsel in connection therewith and such counsel's disbursements in relation
thereto, (d) the listing of the Shares for quotation on Nasdaq, (e) the filing
fees of the Commission and the NASD, (f) the cost of printing certificates
representing the Shares, (g) the costs and charges of any transfer agent or
registrar, and (h) all costs and expenses incurred by the Underwriters,
including the fees and disbursements of Underwriters' Counsel, solely in
connection with the Reserved Shares.
6. Conditions of Underwriters' Obligations. The obligation of the
---------------------------------------
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6, "Closing Date" shall refer to the
------------
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to the Underwriters or to Xxxxxx &
Xxxxxxx ("Underwriters' Counsel") pursuant to this Section 6 of any material
---------------------
misstatement or omission, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) Prior to the Closing Date, the Registration Statement shall have
become effective and, on the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act or any proceedings therefor initiated or, to the
Company's knowledge, threatened by the Commission. The Prospectus shall
have been filed with the Commission pursuant to Rule 424(b) of the
Securities Act Regulations within the prescribed time period and, prior to
or on the Closing Date, the Company shall have provided evidence reasonably
satisfactory to the Underwriters of such timely filing.
(b) All of the representations and warranties of the Company contained in
this Agreement shall be true and correct on the date hereof and on the
Closing Date with the same
14
force and effect as if made on and as of the date hereof and the Closing
Date, respectively. The Company shall have performed or complied with all
of the agreements herein contained and required to be performed or complied
with by it on or prior to the Closing Date.
(c) The Prospectus shall have been printed and copies distributed to the
Underwriters not later than 10:00 a.m., New York City time, on the second
business day following the date of this Agreement or at such later date and
time as to which the Underwriters may agree, and no stop order suspending
the qualification or exemption from qualification of the Shares in any
jurisdiction referred to in Section 4(d) shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
or threatened by the Commission.
(d) No action shall have been taken, and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
that would, as of the Closing Date, prevent the issuance of the Shares; and
no action, suit or proceeding shall have been commenced and be pending
against or affecting or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries before any court or
arbitrator or any governmental body, agency or official that (i) could
reasonably be expected to have a Material Adverse Effect or (ii) has not
been disclosed in the Prospectus.
(e) Since the dates as of which information is given in the Prospectus
and except as contemplated by the Prospectus, (i) there shall not have been
any material adverse change, or any development that is reasonably likely
to result in a material adverse change, in the capital stock or the long-
term debt, or any material increase in the short-term debt, of the Company
or any of its subsidiaries from that set forth in the Prospectus, (ii) no
dividend or distribution of any kind shall have been declared, paid or made
by the Company or any of its subsidiaries on any class of its capital
stock, (iii) neither the Company nor any of its subsidiaries shall have
incurred any liabilities or obligations, direct or contingent, that are
material, individually or in the aggregate, to the Company and its
subsidiaries taken as a whole and that are required to be disclosed on a
balance sheet or in notes thereto in accordance with generally accepted
accounting principles and are not disclosed in the Prospectus. Since the
date hereof and since the dates as of which information is given in the
Prospectus, there shall not have occurred any Material Adverse Effect.
(f) The Underwriters shall have received a certificate, dated the Closing
Date, signed on behalf of the Company by each of the Company's Chief
Executive Officer and Chief Financial Officer, in form and substance
reasonably satisfactory to the Underwriters, confirming, as of the Closing
Date, the matters set forth in paragraphs (a) through (e) of this Section 6
and that, as of the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed in all
material respects.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriters and
Underwriters' Counsel, of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the
Company, to the effect set forth in Exhibit A hereto.
---------
(h) The Underwriters shall have received an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to the Underwriters, of
Xxxxxx & Xxxxxxx, counsel to the Underwriters, covering such matters as are
customarily covered in such opinions.
15
(i) Xxxxxx & Xxxxxxx shall have been furnished with such documents, in
addition to those set forth above, as they may reasonably require for the
purpose of enabling them to review or pass upon the matters referred to in
this Section 6 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions herein contained.
(j) At the time this Agreement is executed and on the Closing Date the
Underwriters shall have received from Deloitte & Touche LLP, independent
public accountants for the Company and its subsidiaries, dated,
respectively, as of the date of this Agreement and as of the Closing Date,
customary comfort letters addressed to the Underwriters and in form and
substance reasonably satisfactory to the Underwriters and Underwriters'
Counsel with respect to the financial statements and certain financial
information of the Company and its subsidiaries contained in the
Prospectus.
(k) At the time this Agreement is executed, the Underwriters shall have
received a "lock-up" agreement, substantially in the form attached as
Exhibit B hereto, from each of the officers, directors and stockholders of
---------
the Company identified on Schedule II hereto.
-----------
(l) On the Closing Date, the Shares shall have been approved for
quotation on Nasdaq.
(m) At the time this Agreement is executed and on the Closing Date, the
NASD shall not have withdrawn, or given notice of an intention to withdraw,
its approval of the fairness of the terms and arrangements of the
underwriting of the offering of the Shares by the Underwriters.
(n) On the Closing Date, the Tax Indemnification Agreement among the
Company, Xxxxxxxxx Music Publishing, Inc., Xxxxxxx X. XxXxxxx and the
Xxxxxxx X. XxXxxxx Irrevocable Deed of Trust, in the form included as an
exhibit to the Registration Statement at the time the Registration
Statement was declared effective by the Commission, or in such other form
satisfactory to the Underwriters and Underwriters' Counsel, shall have been
executed and delivered by the parties thereto.
(o) On the Closing Date, the Company shall have consummated each of the
Concurrent Transactions, and the Underwriters shall have been provided
evidence, to their satisfaction, of the consummation thereof.
(p) Each of the agreements filed as exhibits to the Registration
Statement shall be in full force and effect, and no party to any such
agreement shall have given any notice of termination or amendment of any
material provision thereof, or of any intention to terminate or amend any
material provision thereof, to any other party, and no event shall have
occurred that would prevent any party from substantially performing its
obligations under such agreements.
(q) All opinions, certificates, letters and other documents required by
this Section 6 to be delivered by the Company will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to the Underwriters. The Company shall furnish the Underwriters
with such conformed copies of such opinions, certificates, letters and
other documents as Bear Xxxxxxx reasonably requests. Prior to or on the
Closing Date, the
16
Company shall have furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 have not been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Underwriters or to
Underwriters' Counsel pursuant to this Section 6 are not in all material
respects reasonably satisfactory in form and substance to the Underwriters and
to Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by the Underwriters on, or at any time prior to, the Closing Date, and
the obligations of the Underwriters to purchase Additional Shares may be
canceled by the Underwriters on, or at any time prior to, the applicable
Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing, or by telephone, telecopy, telex or telegraph, confirmed in
writing.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing for or defending against any litigation, commenced
or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, as originally filed or any amendment
thereof, or any related Preliminary Prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, 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; provided, however, that the Company will not be liable in any
such case (i) to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of, or is based upon, any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives expressly for use therein and (ii) with respect
to any preliminary prospectus or preliminary prospectus supplement to the
extent that any such loss, claim, damage or liability results from the fact
that an Underwriter sold Shares to a person as to whom it shall be
established that there was not sent or given, at or prior to written
confirmation of such sale, a copy of the prospectus or prospectus
supplement as then amended or supplemented in any case where such delivery
is required by the Securities Act if the Company has previously furnished
copies thereof in sufficient quantity to such Underwriter and with
sufficient time to effect a recirculation pursuant to Rule 461 under the
Securities Act, and the loss, claim, damage or liability of the
Underwriters results from an untrue statement or omission of a material
fact contained in the preliminary prospectus or preliminary prospectus
supplement that was identified in writing prior to the effective date of
the registration statement to such Underwriter and corrected in the
prospectus or prospectus supplement as then amended, and such correction
would have cured the defect giving rise to such loss, claim, damage or
liability. This indemnity agreement will be in addition to any liability
that the Company may otherwise have, including under this Agreement.
17
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company and each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable expenses incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related preliminary
prospectus, preliminary prospectus supplement or prospectus, or in any
amendment thereof or supplement thereto, 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, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter expressly for use therein; provided, however, that in no case
shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder. This indemnity will be in addition to any liability
that any Underwriter may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability that it may have under this Section 7 except
to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may otherwise have). In case any such
action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying parties in connection with the
defense of such action, (ii) the indemnifying parties shall not have
employed counsel to take charge of the defense of such action within a
reasonable period of time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them that are different from
or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying party or parties shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the indemnifying
party under subsection (a) or (b) above, shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any
18
settlement of any claim or action effected without its prior written
consent; provided, however, that such consent was not unreasonably
withheld.
8. Contribution. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
liabilities, claims, damages and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions that resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand shall be deemed to be in
the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the underwriting discounts and commissions received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters 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 an Underwriter, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the preceding
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the provisions of
this Section 8 and the preceding sentence, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of the fifth sentence of this Section 8. Any
19
party entitled to contribution shall, promptly after receipt of notice of the
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
failure so to notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided, however, that such consent was not unreasonably
withheld.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder,
and if the Firm Shares or Additional Shares with respect to which such
default relates do not (after giving effect to arrangements, if any, made
by the Underwriters pursuant to subsection (b) below) exceed in the
aggregate 10% of the number of Firm Shares or Additional Shares, as the
case may be, the Firm Shares or Additional Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase shall
be purchased by the non-defaulting Underwriters in proportion to the
respective proportions that the numbers of Firm Shares set forth opposite
their respective names in Schedule I hereto bear to the aggregate number
----------
of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, the Underwriters may
in their discretion arrange for themselves or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase such Firm Shares or Additional Shares to which such default
relates on the terms contained herein. In the event that within five
calendar days after such a default the Underwriters do not arrange for the
purchase of the Firm Shares or Additional Shares, as the case may be, to
which such default relates as provided in this Section 9, this Agreement
or, in the case of a default with respect to Additional Shares, the
obligations of the Underwriters to purchase and of the Company to sell
Additional Shares, shall thereupon terminate, without liability on the part
of the Company with respect thereto (except in each case as provided in
Sections 5, 7(a) and 8 hereof) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for
damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the non-defaulting Underwriters
or by another party or parties as aforesaid, the Underwriters or the
Company shall have the right to postpone the Closing Date or Additional
Closing Date, as the case may be, for a period not exceeding five business
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment of or
supplement to the Registration Statement or the Prospectus that, in the
opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include
any party substituted under this Section 9 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares
or Additional Shares.
10. Survival of Representations and Agreements. All representations and
------------------------------------------
warranties, covenants and agreements of the Underwriters and the Company
contained in this
20
Agreement, including the agreements contained in Section 5, the indemnity
agreements contained in Section 7 and the contribution agreements contained in
Section 8, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof or by or on behalf of the Company, any of its officers and directors, or
any controlling person of the Company, and shall survive delivery of and payment
for the Shares to and by the Underwriters. The representations contained in
Section 1 and the agreements contained in Sections 5, 7, 8, 11(d) and 12 hereof
shall survive the termination of this Agreement, including termination pursuant
to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective upon the execution and
delivery of a counterpart hereof by each of the parties hereto.
(b) The Underwriters shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase Additional Shares at any time prior to the
relevant Additional Closing Date, as the case may be, if on or prior to
such date (i) the Company fails, refuses or is unable to perform in any
material respect any agreement on its part to be performed hereunder, (ii)
any other condition to the obligations of the Underwriters hereunder
provided in Section 6 is not fulfilled when and as required in any material
respect, (iii) in the reasonable judgment of the Underwriters any change of
circumstance occurs since the respective dates as of which information is
given in the Prospectus that could have a Material Adverse Effect, other
than as set forth in the Prospectus, or (iv) (A) any domestic or
international event or act or occurrence has materially adversely affected,
or in the reasonable judgment of the Underwriters will in the immediate
future materially adversely affect, the market for the Company's securities
or for securities in general; or (B) trading in securities generally on the
NYSE or quotations on Nasdaq is suspended or materially limited, or minimum
or maximum prices for trading are established, or maximum ranges for prices
for securities are required, on such exchange, or by such exchange or other
regulatory body or governmental authority having jurisdiction; or (C) a
banking moratorium is declared by federal or state authorities, or a
moratorium in foreign exchange trading by major international banks or
persons is declared; or (D) there is an outbreak or escalation of armed
hostilities involving the United States on or after the date hereof, or if
there has been a declaration by the United States of a national emergency
or war, the effect of which is, in the Underwriters' judgment, to make it
inadvisable or impracticable to proceed with the offering, sale and
delivery of the Firm Shares or Additional Shares, as the case may be, on
the terms and in the manner contemplated by the Prospectus; or (E) there is
such a material adverse change in general economic, political or financial
conditions or if the effect of international conditions on the financial
markets in the United States is such as, in the Underwriters' reasonable
judgment, makes it inadvisable or impracticable to proceed with the
offering, sale and delivery of the Firm Shares or the Additional Shares, as
the case may be, on the terms and in the manner contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telecopy, telex, or telegraph, confirmed in writing by
letter.
(d) If this Agreement is terminated pursuant to any of the
provisions hereof (other than pursuant to Section 9(b) or 11(b) hereof), or
if the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth herein is
not satisfied or because of any refusal, inability or failure on the part
of the Company to
21
perform any agreement herein or comply with any provision hereof, the
Company shall, subject to demand by the Underwriters, reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the fees
and expenses of their counsel) incurred by the Underwriters in connection
herewith.
12. Underwriters' Information. The Company and the Underwriters
-------------------------
severally acknowledge that the statements set forth in (i) the last paragraph of
the outside front cover of the Prospectus concerning the delivery of Shares to
the Underwriters and the offering of such Shares by the Underwriters, (ii) the
fourth paragraph under the caption "Plan of Distribution" in the Prospectus
concerning the proposed public offering price, discount and concessions, (iii)
the seventh, eighth, ninth and tenth paragraphs under the caption "Plan of
Distribution" in the Prospectus concerning the intersyndicate agreement, (iv)
the twelfth and thirteenth paragraphs under the caption "Plan of Distribution"
in the Prospectus concerning Wit Capital and (v) the fifteenth paragraph under
the caption "Plan of Distribution" in the Prospectus concerning transactions
that stabilize, maintain or otherwise affect the price of the Common Stock,
constitute the only information furnished in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement, any related
Preliminary Prospectus or preliminary prospectus supplement or the Prospectus,
or in any amendment thereof or supplement thereto, as the case may be.
13. Notices. All communications hereunder, except as may be otherwise
-------
specifically provided herein, shall be in writing and, if sent to the
Underwriters, shall be mailed, delivered, telegraphed or telecopied (and which
shall be confirmed in writing) to the Underwriters, c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance
Department, telecopy number: (000) 000-0000, and, if sent to the Company, shall
be mailed, delivered, telegraphed or telecopied (and which shall be confirmed in
writing) to World Wrestling Federation Entertainment, Inc., 0000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, XX 00000, Attention: August X. Xxxxxxx, telecopy number:
(000) 000-0000, with a copy to Xxxxxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx Xxxxxxxx,
Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. XxXxxx.
14. Parties. This Agreement shall inure solely to the benefit of,
-------
and shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
15. Construction. This Agreement shall be construed in accordance
------------
with the internal laws of the State of New York applicable to agreements made
and to be performed within New York, without giving any effect to any provisions
thereof relating to conflicts of law. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
16. Captions. The captions included in this Agreement are included
--------
solely for convenience of reference and are not to be considered a part of this
Agreement.
17. Counterparts. This Agreement may be executed in various
------------
counterparts, which together shall constitute one and the same instrument.
22
If the foregoing correctly sets forth the understanding among the
Underwriters and the Company, please sign in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
World Wrestling Federation Entertainment, Inc.
By: ________________________________
Name:
Title:
Accepted as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: ________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: ________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: ________________________________
Name:
Title:
WIT CAPITAL CORPORATION
By: ________________________________
Name:
Title:
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation...................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.......
Wit Capital Corporation..................................
Total...................................................................
SCHEDULE II
Individuals Delivering a Lock-Up Agreement Pursuant to Section 6(k)
Xxxxxxx X. XxXxxxx
Xxxxxxx X. XxXxxxx Irrevocable Deed of Trust
Xxxxx X. XxXxxxx
August X. Xxxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxx
Xx Xxxxx
Xxxxx Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx XxXxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxx
Exhibit A
Form of Opinion of Xxxxxxxxxxx & Xxxxxxxx LLP
1. Each of the Company and its subsidiaries that have been identified
to such counsel by the Company as being "significant subsidiaries," as defined
in Article 1, Rule 1-02 of Regulation S-X promulgated under the Securities Act
(the "Significant Subsidiaries"), (i) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, (ii) has the corporate power and authority to
own, lease and operate its properties and to carry on its business as it is
being conducted and as described in the Prospectus, and (iii) is duly qualified
and in good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification and being in good standing, except where
the failure to be so qualified or in good standing does not and could not
reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect.
2. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable, and
were not issued in violation of or subject to any statutory preemptive rights.
The authorized, issued and outstanding capital stock of the Company conforms in
all material respects to the description thereof set forth in the Prospectus.
3. The Shares, when issued, delivered and sold in accordance with the
Underwriting Agreement, will be duly authorized and validly issued, fully paid
and nonassessable, and will not be issued in violation of or subject to any
statutory preemptive rights.
4. All of the outstanding capital stock of or other ownership
interests in the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and were not issued in violation of or
subject to any statutory preemptive rights, and are owned by the Company free
and clear of any security interest, claim, lien, limitation on voting rights or
encumbrance.
5. Except as disclosed in the Prospectus, there are not currently,
and will not be as a result of the Offering, any outstanding rights, warrants,
or options to acquire or instruments convertible into or exchangeable for, any
capital stock or other equity interest of the Company or any of its
subsidiaries.
6. The Common Stock (including the Shares) is registered pursuant to
Section 12(g) of the Exchange Act and the Shares are approved for quotation on
Nasdaq.
7. The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Underwriting Agreement and to
consummate the transactions contemplated thereby and the Concurrent
Transactions, including, without limitation, the corporate power and authority
to issue, sell and deliver the Shares as provided therein.
8. The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company.
9. The Tax Indemnification Agreement has been duly and validly
authorized, executed and delivered by each of the Company, Xxxxxxxxx Music
Publishing, Inc., Xxxxxxx X. XxXxxxx and the Xxxxxxx X. XxXxxxx Irrevocable Deed
of Trust and is the legal, valid and binding agreement of each of the Company,
Xxxxxxxxx Music Publishing, Inc., Xxxxxxx X. XxXxxxx and the
Xxxxxxx X. XxXxxxx Irrevocable Deed of Trust, enforceable against each of the
Company, Xxxxxxxxx Music Publishing, Inc., Xxxxxxx X. XxXxxxx and the Xxxxxxx X.
XxXxxxx Irrevocable Deed of Trust in accordance with its terms.
10. The Registration Statement and Prospectus comply as to form in
all material respects with the requirements of the Securities Act and the
Securities Act Regulations. There are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein, and such descriptions or
references are correct in all material respects.
11. The Registration Statement has become effective under the
Securities Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) of the
Securities Act Regulations have been made.
12. None of (A) the execution, delivery or performance by the Company
of the Underwriting Agreement, (B) the issuance and sale of the Shares, or (C)
the consummation by the Company of any Concurrent Transaction violates,
conflicts with or constitutes a breach of any of the terms or provisions of, or
a default under (or an event that with notice or the lapse of time or both would
constitute a default), or requires consent which has not been obtained under, or
results in the imposition of a lien or encumbrance on any properties of the
Company or any of its Significant Subsidiaries, or an acceleration of any
indebtedness of the Company or any of its Significant Subsidiaries pursuant to,
(i) the charter or bylaws of the Company or any of its Significant Subsidiaries,
(ii) any bond, debenture, note, indenture, mortgage, deed of trust, contract or
other agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries or their property is or may be bound, which bond, debenture, note,
indenture, mortgage, deed of trust, contract or other agreement or instrument is
filed as an exhibit to the Registration Statement (iii) any statute, rule or
regulation applicable to the Company or any of its Significant Subsidiaries or
any of their assets or properties or (iv) any judgment, order or decree of any
court or governmental agency or authority having jurisdiction over the Company
or any of its Significant Subsidiaries or any of their assets or properties,
except in the case of clauses (ii), (iii) and (iv) for such violations,
conflicts, breaches, defaults, failures to obtain consents, impositions of liens
or accelerations that (x) could not reasonably be expected to have a Material
Adverse Effect or (y) are described in the Prospectus.
13. Other than as described in the Prospectus, no consent, approval,
authorization or order of, or filing, registration, qualification, license or
permit of or with any court or governmental agency or authority is required for
(1) the execution and delivery of and performance by the Company of its
obligations under the Underwriting Agreement, (2) the issuance and sale of the
Shares, or (3) the consummation by the Company of any Concurrent Transaction,
except (i) such as have been obtained or made under the Securities Act and state
securities or blue sky laws and regulations or such as may be required or (ii)
where the failure to obtain any such consent, approval, authorization or order,
or to make or obtain any filing, registration, qualification, license or permit
could not reasonably be expected to have a Material Adverse Effect.
14. Neither the Company nor any of its Significant Subsidiaries is,
nor upon consummation of the transactions contemplated by the Underwriting
Agreement or of any of the
Concurrent Transactions will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
15. There is (i) no action, suit, investigation or proceeding before
or by any court or governmental agency or authority now pending or, to the
knowledge of such counsel, threatened to which the Company or any of its
subsidiaries is or may be a party or to which the business or property of the
Company or any of its subsidiaries is or may be subject, (ii) to the knowledge
of such counsel, no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency, or (iii) no injunction,
restraining order or order of any nature, to the knowledge of such counsel, by a
federal or state court of competent jurisdiction to which the Company or any of
its subsidiaries is or may be subject or to which the business, assets or
property of the Company or any of its subsidiaries are or may be subject that,
in the case of clauses (i), (ii) and (iii) above, (x) is required to be
disclosed in the Prospectus and that is not so disclosed, or (y) could
reasonably be expected to have a Material Adverse Effect.
16. The statements under the captions "Reclassification of Stock and
Prior Subchapter S Corporation Status," ["BusinessLegal Proceedings,"]
"ManagementLong-Term Incentive Plan," "Description of Capital Stock," "Shares
Eligible for Future Sale," and "United States Federal Tax Considerations to Non-
United States Holders" in the Prospectus and Items 14 of Part II of the
Registration Statement, in each case, insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
fairly present the information required with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to therein
in all material respects.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent certified
public accountants of the Company, the Underwriters and their representatives at
which the contents of the Registration Statement and Prospectus and related
matters were discussed, and no facts have come to our attention which led us to
believe that either the Registration Statement at the time it became effective
(including the information deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A(b) or Rule 434 of the Securities
Act Regulations, if applicable), or any amendment thereof prior to the Closing
Date as of the date of such amendment, contained an untrue statement of a
material fact or omitted to state any fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
as of its date (or any amendment thereof or supplement thereto prior to the
Closing Date as of the date of such amendment or supplement) and as of the
Closing Date contained or contains an untrue statement of a material fact or
omitted or omits to state any fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (excluding all financial statements and related notes,
the financial statement schedules and other financial and statistical data
included therein).
Exhibit B
Lock-Up Agreement
September ___, 1999
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
WIT CAPITAL CORPORATION
as Representatives of the several U.S. Underwriters
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BEAR, XXXXXXX INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
as Representatives of the several International Underwriters
c/o Bear, Xxxxxxx International Limited
[245 Xxxx Xxxxxx]
[Xxx Xxxx, Xxx Xxxx 00000]
Re: World Wrestling Federation Entertainment, Inc.
----------------------------------------------
Ladies and Gentlemen:
In consideration of (a) the agreement of the several U.S.
Underwriters, for which Bear, Xxxxxxx & Co. Inc., Credit Suisse First Boston
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Wit Capital
Corporation intend to act as U.S. Representatives, and (b) the agreement of the
several International Underwriters, for which Bear, Xxxxxxx International
Limited, Credit Suisse First Boston (Europe) Limited and Xxxxxxx Xxxxx
International intend to act as International Representatives, to underwrite a
proposed public offering (the "Offering") of shares of Class A common stock,
$.01 par value (the "Common Stock"), of World Wrestling Federation
Entertainment, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), as contemplated by a registration statement on Form S-
1 filed with the Securities and Exchange Commission, the undersigned hereby (i)
agrees that the undersigned will not, directly or indirectly, during a period of
one hundred eighty (180) days from the date of the final prospectus for the
Offering (the "Lock-Up Period"), without the prior written consent of Bear,
Xxxxxxx & Co. Inc., issue, sell, offer or agree to sell, grant any option for
the sale of, pledge, make any short sale of, maintain any short position with
respect to, establish or maintain a "put equivalent position" (within the
meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended)
with respect to, enter into any swap, derivative transaction or other
arrangement (whether any such transaction is to be settled by delivery of Common
Stock, other securities, cash or other consideration) that transfers to another,
in whole or in part, any of the economic consequences of ownership, or otherwise
dispose of, any Common Stock (or any securities convertible into, exercisable
for or exchangeable for Common Stock) or interest therein of the Company or any
capital stock of any of its subsidiaries, and (ii) authorizes the Company during
the Lock-Up Period to cause the transfer agent for the Common Stock to decline
to transfer or to note stop transfer restrictions on the transfer books and
records of the Company with respect to, any shares of Common Stock and any
securities convertible into or exercisable or exchangeable for Common Stock for
which the undersigned is the record holder and, in the case of any such shares
or
securities for which the undersigned is the beneficial but not the record
holder, agrees to cause the record holder thereof to cause the transfer agent to
decline to transfer or to note stop transfer restrictions on such books and
records with respect to, such shares or securities.
The undersigned further agrees, from the date hereof until the end of
the Lock-Up Period, the undersigned will not exercise and will waive his, her or
its rights, if any, to require the Company to register any shares of Common
Stock beneficially owned by the undersigned.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
necessary in connection with any enforcement hereof. The obligations of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned.
Very truly yours,
[See list of parties to execute lock-ups]
