Exhibit 1.2
World Wrestling Federation Entertainment, Inc.
2,000,000 Shares of Class A Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
October __, 1999
BEAR, XXXXXXX INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON
XXXXXXX XXXXX INTERNATIONAL
October __, 1999
Bear, Xxxxxxx International Limited
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Xxxxx International
c/o Bear, Xxxxxxx International Limited
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
World Wrestling Federation Entertainment, Inc., a corporation organized
and existing under the laws of Delaware (the "Company"), proposes, subject to
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the terms and conditions stated herein, to issue and sell to Bear Xxxxxxx
International Limited, Credit Suisse First Boston (Europe) Limited and Xxxxxxx
Xxxxx International, as lead managers (the "Lead Managers") of the several
underwriters named on Schedule I hereto (collectively, the "Underwriters"), an
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aggregate of 2,000,000 shares (the "Firm Shares") of its Class A common stock,
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$0.01 par value (the "Common Stock") and, for the sole purpose of covering over-
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allotments in connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional 300,000 shares (the "Additional Shares") of
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Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares." The Shares are more fully
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described in the Registration Statement referred to below.
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "U.S. Underwriting Agreement")
providing for the sale by the Company of up to a total of 9,200,000 shares of
Common Stock (the "U.S. Shares"), including the over-allotment option
thereunder, through arrangements with certain underwriters in the United States
(the "U.S. Underwriters"), for whom Bear, Xxxxxxx & Co. Inc., Credit Suisse
First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
Wit Capital Corporation are acting as representatives. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the U.S. Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the U.S. 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 U.S. 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 U.S. 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
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represents 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
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(No. 333-84327), and any amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of shares of Common Stock, which
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registration statement, as amended, 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 the Company has filed or is required
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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 Statement"), then, unless
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otherwise specified, any reference herein to the 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"), each in the
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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,"
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except that, if any revised prospectus or 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
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Prospectus (whether or not such revised 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
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references in this Agreement to the 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 and nonassessable, and will not be issued in violation
of, or subject to, any preemptive or similar rights.
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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 terminate
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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 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
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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) 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
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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
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engage in the business 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 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,
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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
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in connection with the businesses now 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 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.
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(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 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
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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 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 Summary-Summary 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
9
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 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.
10
(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to 300,000 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.
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
11
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 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).
12
(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 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,
13
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 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
14
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.
(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.
15
(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 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,
16
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 Lead Managers 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.
(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
17
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
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
18
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 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
19
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 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'
20
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 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: (203)
359-5125, 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.
21
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 INTERNATIONAL LIMITED
By:
-----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:
-----------------------------
Name:
Title:
XXXXXXX XXXXX INTERNATIONAL
By:
-----------------------------
Name:
Title:
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx International Limited....................
Credit Suisse First Boston (Europe) Limited............
Xxxxxxx Xxxxx International............................
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
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
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]
