AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 1995
REGISTRATION NO. 33-62711
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
INFINITY BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-2766282
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
-------------------
600 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 750-6400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-------------------
FARID SULEMAN
VICE PRESIDENT--FINANCE AND CHIEF FINANCIAL OFFICER
INFINITY BROADCASTING CORPORATION
600 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 750-6400
(Name, address, including zip code, and telephone number, including area code,
of agent for service of process)
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PLEASE ADDRESS A COPY OF ALL COMMUNICATIONS TO:
RICHARD D. BOHM, ESQ. DAVID B. CHAPNICK, ESQ.
DEBEVOISE & PLIMPTON SIMPSON THACHER & BARTLETT
875 THIRD AVENUE 425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10017
(212) 909-6000 (212) 455-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two separate prospectuses. The first
prospectus relates to a public offering in the United States and Canada of an
aggregate of 6,800,000 shares of Class A Common Stock (the "U.S. Offering"). The
second prospectus relates to a concurrent offering outside the United States and
Canada of an aggregate of 1,700,000 shares of Class A Common Stock (the
"International Offering" and, together with the U.S. Offering, the "Offerings").
The prospectuses for the U.S. Offering and the International Offering will be
identical with the exception of the following alternate pages for the
International Offering: a front cover page, a "Certain U.S. Tax Considerations
Applicable to Non-U.S. Holders of the Class A Common Stock" section, an
"Underwriting" section, an "Available Information" section and a back cover
page. Such alternate pages appear in this Registration Statement immediately
following the complete prospectus for the U.S. Offering.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 18, 1995
PROSPECTUS
8,500,000 SHARES
INFINITY BROADCASTING CORPORATION
CLASS A COMMON STOCK
-------------------
All of the 8,500,000 shares of Class A Common Stock offered hereby are being
sold by Infinity Broadcasting Corporation ("Infinity" or the "Company"). Of the
8,500,000 shares of Class A Common Stock offered hereby, 6,800,000 shares are
being offered initially in the United States and Canada by the U.S. Underwriters
(the "U.S. Offering") and 1,700,000 shares are being offered in a concurrent
international offering outside the United States and Canada by the International
Underwriters (the "International Offering" and, together with the U.S. Offering,
the "Offerings"). The initial public offering price and the underwriting
discount per share are identical for both Offerings. See "Underwriting."
The Company's authorized capital stock includes Class A Common Stock, Class B
Common Stock and Class C Common Stock (collectively, the "Common Stock") and
preferred stock. The rights of holders of Common Stock are identical, except
that each share of Class B Common Stock generally entitles its holder to ten
votes, whereas each share of Class A Common Stock and Class C Common Stock
entitles its holder to one vote. In addition, the holders of Class A Common
Stock, voting as a separate class, are entitled to elect two of the Company's
nine directors and the holders of Class C Common Stock, voting as a separate
class, are also entitled to elect two of the Company's nine directors. Each
share of Class B Common Stock converts automatically into one share of Class A
Common Stock upon its sale or other transfer to a party unaffiliated with
certain of the existing stockholders of the Company or, if shares have been
transferred to an affiliated party, upon the death of the transferor of such
shares. Each share of Class C Common Stock converts automatically into one share
of Class A Common Stock upon its sale or other transfer to a party unaffiliated
with certain of the existing stockholders of the Company and upon the occurrence
of certain other events. See "Description of Capital Stock."
The Class A Common Stock has been traded on the New York Stock Exchange under
the symbol "INF" since June 22, 1995 and was formerly traded on the NASDAQ
National Market System under the symbol "INFTA." On October 17, 1995, the last
reported sale price of the Class A Common Stock on the New York Stock Exchange
was $33 1/4 per share. See "Price Range of Common Stock and Dividend Policy."
SEE "RISK FACTORS" ON PAGE 7 FOR CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE
CONTRARY IS A CRIMINAL
OFFENSE.
[CAPTION]<TABLE>
====================================================================================================
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
<S> <C> <C> <C>
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Per Share............................ $ $ $
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Total(3)............................. $ $ $
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</TABLE>
(1) The Company has agreed to indemnify the several U.S. Underwriters and
International Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933. See "Underwriting."
(2) Before deducting expenses, estimated at $ , payable by the Company.
(3) The Company has granted the U.S. Underwriters and the International
Underwriters options, exercisable within 30 days after the date hereof, to
purchase up to an aggregate of 1,020,000 and 255,000 shares of Class A
Common Stock, respectively, at the initial price to public per share, less
the underwriting discount, solely to cover over-allotments, if any. If such
options are exercised in full, the total Price to Public, Underwriting
Discount and Proceeds to Company will be $ , $ and $ ,
respectively. See "Underwriting."
-------------------
The Class A Common Stock is being offered by the several Underwriters,
subject to prior sale, when, as and if issued to and accepted by them, and
subject to approval of certain legal matters by counsel for the Underwriters and
certain other conditions. The Underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. It is expected
that delivery of certificates for the shares of Class A Common Stock will be
made in New York, New York on or about October , 1995.
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MERRILL LYNCH & CO.
GOLDMAN, SACHS & CO.
ALEX. BROWN & SONS
INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
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The date of this Prospectus is October , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT YET BECOME EFFECTIVE. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME
THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PRELIMINARY PROSPECTUS SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
[Insert corporate logo for Infinity Broadcasting Corporation]
----------------------------
[Insert corporate logos for individual radio stations]
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IN CONNECTION WITH THE OFFERINGS, THE UNDERWRITERS MAY OVER- ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE CLASS A COMMON
STOCK AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere or incorporated by
reference in this Prospectus. All references in this Prospectus to shares and
per share data assume that the Underwriters' options to purchase from the
Company up to 1,275,000 additional shares of Class A Common Stock to cover
over-allotments will not be exercised in connection with the Offerings. If the
over-allotment options are exercised in full, 1,275,000 additional shares of
Class A Common Stock would be sold by the Company. All references in this
Prospectus to shares and per share data also (i) are as of September 1, 1995
unless otherwise specified and (ii) give effect to a three-for-two stock split
effected by the Company on August 16, 1993, a three-for-two stock split effected
by the Company on November 19, 1993 and a three-for-two stock split effected by
the Company on May 19, 1995. Except as otherwise indicated by the context,
references in this Prospectus to the "Company" include all subsidiaries of the
Company. Prospective investors should carefully consider the information set
forth under the heading "Risk Factors."
THE COMPANY
Infinity Broadcasting Corporation is currently the largest owner and
operator of radio stations in the United States. Infinity owns and operates 27
radio stations serving 13 of the nation's largest radio markets, including each
of the nation's top ten radio markets. Based on information contained in
Duncan's Radio Market Guide (1995 ed.), Infinity ranked first in total radio
revenues in 1994 among all companies owning radio stations in the United States.
The Company serves markets accounting for approximately $2.7 billion in radio
advertising revenues in 1994, representing approximately 27% of the total radio
advertising expenditures in the United States in 1994. The Company also has an
investment in and manages Westwood One, Inc. ("Westwood One"), the largest
producer and distributor of radio programs in the U.S.
Since Infinity acquired its first radio station in May 1973, it has expanded
by acquiring and developing underperforming stations in the nation's largest
media markets, where the greatest proportion of radio advertising dollars is
spent. The Company believes that its presence in large markets makes it
attractive to advertisers and that the overall diversity of its stations reduces
its dependence on any single station, local economy or advertiser.
In each of its markets, the Company attracts a specific demographic group by
targeting its program format and hiring popular on-air talent. The Company's
stations serve diverse target demographics attractive to advertisers through a
broad range of programming formats such as rock, oldies, news/talk, adult
contemporary, all-sports and country. The Company's overall programming strategy
includes acquiring significant on-air talent and broadcasting rights for sports
franchises.
The diversity of the Company's station and market characteristics, combined
with its acquisition and operating strategies, have enabled the Company to
achieve consistent growth in revenues and operating cash flow (as used in this
Prospectus, the term "operating cash flow" means operating income plus
depreciation and amortization). The Company's net revenues increased from
approximately $150.2 million for 1992 to approximately $274.1 million for 1994,
while operating cash flow grew from approximately $64.3 million for 1992 to
approximately $125.2 million for 1994.
On September 22, 1995, the Company entered into an agreement to acquire
radio stations KYNG-FM and KSNN-FM in Dallas, KFRC-FM, KFRC-AM and KYCY-FM in
San Francisco, WYCD-FM in Detroit and KYCW-FM in Seattle (the "Alliance
Stations") from various entities affiliated with Alliance Broadcasting, L.P.
("Alliance"), for $275 million, including working capital of at least $10
million (the "Alliance Acquisition"). The consummation of the Alliance
Acquisition is subject to certain conditions, including approval of the Federal
Communications Commission (the "FCC"), which will require the Company to obtain
temporary divestiture waivers by the FCC of certain
3
<PAGE>
regulations limiting the number of radio stations which may be owned or
controlled by one entity both nationally and in a particular market. See "The
Company--Recent Developments--The Alliance Acquisition." Certain legislation
currently pending before Congress would significantly relax or eliminate these
regulatory restrictions. See "The Company--Recent
Developments--Telecommunications Bills." There can be no assurance that such
legislation will be enacted or what form any ultimate legislation will take. The
Company continues to seek opportunities for expansion through the acquisition of
additional radio stations, although its ability to make further acquisitions may
be limited by the regulatory requirements referred to above.
The Company was incorporated in 1972 in Delaware. Its Class A Common Stock,
par value $.002 per share (the "Class A Common Stock"), is listed on the New
York Stock Exchange.
THE OFFERINGS
<TABLE>
<S> <C>
Class A Common Stock offered:
U.S. Offering.............................. 6,800,000 shares
International Offering..................... 1,700,000 shares
Total.................................. 8,500,000 shares
Shares of Common Stock to be
outstanding after the Offerings(1)......... 49,498,405 shares of Class A Common Stock(2)
5,550,031 shares of Class B Common Stock(2)
744,171 shares of Class C Common Stock(2)
55,792,607 shares of Common Stock(2)
77,270,501 shares of Common Stock after
exercise of options and warrants and issuance
of deferred shares(3)
Voting rights................................ The Class A, Class B and Class C Common Stock
vote as a single class with respect to all
matters submitted to a vote of stockholders,
with each share of the Class A and Class C
Common Stock entitled to one vote and each
share of Class B Common Stock entitled to ten
votes, except (i) in the election of
directors, with respect to which the holders
of Class A and Class C Common Stock are each
entitled to elect two of the Company's nine
directors by a class vote, (ii) with respect
to any "going private" transaction between
the Company and any of Mel Karmazin, Michael
A. Wiener and Gerald Carrus (see "Principal
Stockholders") and (iii) as otherwise
provided by law. Each class of Common Stock
is equivalent, except with respect to voting
rights. See "Description of Capital Stock."
Use of proceeds.............................. The Company expects to use the net proceeds
from the Offerings to finance future
acquisitions of broadcasting properties,
including the Alliance Acquisition, and for
general corporate purposes. Until such net
proceeds are applied for such purposes, the
Company expects to use such net proceeds to
reduce certain borrowings. See "Use of
Proceeds."
NYSE symbol.................................. INF
</TABLE>
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(1) If the Underwriters' overallotment options were exercised in full,
50,773,405 shares of Class A Common Stock would be outstanding after the
Offerings. See "Underwriting."
(2) Excludes shares of Class A Common Stock issuable upon future conversions of
shares of Class B or Class C Common Stock and any future exercise of stock
options or warrants or issuance of deferred shares. See "Description of
Capital Stock--Warrants and Options."
(3) Includes 21,477,894 shares of Common Stock issuable upon the exercise of
options and warrants and issuance of deferred shares. See "Description of
Capital Stock--Warrants and Options."
4
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE><CAPTION>
PRO FORMA SIX MONTHS ENDED PRO FORMA
YEARS ENDED DECEMBER 31, YEAR ENDED JUNE 30, SIX MONTHS ENDED
------------------------------ DECEMBER 31, ------------------- JUNE 30,
1992 1993 1994 1994(1) 1994 1995 1995(1)
-------- -------- -------- ------------ -------- -------- ----------------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:(2)
Total revenues......... $171,843 $234,240 $313,359 $370,963 $134,036 $169,162 $194,532
Net revenues........... 150,230 204,522 274,120 322,393 116,877 146,891 168,008
Station operating
expenses excluding
depreciation and
amortization.......... 81,707 109,601 143,249 177,405 63,863 78,116 94,163
-------- -------- -------- ------------ -------- -------- --------
Station operating
income excluding
depreciation and
amortization.......... 68,523 94,921 130,871 144,988 53,014 68,775 73,845
Depreciation and
amortization.......... 28,926 38,853 46,606 73,088 22,050 24,000 34,463
Corporate general and
administrative
expenses.............. 4,182 4,836 5,633 5,633 2,419 2,667 2,667
-------- -------- -------- ------------ -------- -------- --------
Operating income....... 35,415 51,232 78,632 66,267 28,545 42,108 36,715
Interest expense....... 39,390 36,776 44,689 52,613 20,906 23,883 25,683
Net earnings (loss)
before extraordinary
items(3).............. (9,432) 14,335 33,213 12,924 7,526 17,700 10,507
Net earnings (loss) per
share before
extraordinary
items(3).............. $ (.20) $ .23 $ .49 $ .17 $ .11 $ .26 $ .14
Cash dividends declared
per common share....... -- -- -- -- -- -- --
Weighted average number
of shares
outstanding(4)(5)..... 47,001(6) 62,055 67,139 75,639 67,184 67,275 75,775
</TABLE>
<TABLE><CAPTION>
DECEMBER 31, JUNE 30, PRO FORMA
------------------------------ ------------------- JUNE 30,
1992 1993 1994 1994 1995 1995(7)
-------- -------- -------- -------- -------- ----------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:(2)
Total assets....................... $271,952 $378,040 $562,153 $570,345 $597,992 $872,992
Long-term debt (including current
portion).......................... 380,625 365,062 531,750 544,187 562,000 582,000
Stockholders' equity
(deficiency)...................... (138,734) (24,240) (25,525) (28,858) (20,392) 234,608
Working capital.................... 4,656 10,610 28,877 (5,818) 34,565 44,565
</TABLE>
(footnotes on following page)
5
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA--(CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE><CAPTION>
PRO FORMA SIX MONTHS ENDED PRO FORMA
YEARS ENDED DECEMBER 31, YEAR ENDED JUNE 30, SIX MONTHS ENDED
---------------------------- DECEMBER 31, ----------------- JUNE 30,
1992 1993 1994 1994(1) 1994 1995 1995(1)
------- ------- -------- ------------ ------- ------- ----------------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
FINANCIAL RATIOS AND OTHER
DATA:(8)
Operating cash flow........ $64,341 $90,085 $125,238 $139,355 $50,595 $66,108 $ 71,178
Capital expenditures....... 1,300 1,901 1,606 3,251 674 1,189 1,628
Operating cash flow less
capital expenditures...... 63,041 88,184 123,632 136,104 49,921 64,919 69,550
Capital expenditures as a
percentage of operating
cash flow................. 2.02% 2.11% 1.28% 2.33% 1.33% 1.80% 2.29%
Operating cash flow to
interest expense, net of
interest income........... 1.68x 2.48x 2.81x 2.66x 2.43x 2.79x 2.79x
Operating cash flow less
capital expenditures to
interest expense, net of
interest income........... 1.65x 2.43x 2.78x 2.59x 2.40x 2.74x 2.73x
</TABLE>
- ------------
(1) The pro forma statement of operations data and financial ratios and other
data for the six months ended June 30, 1995 and the year ended December 31,
1994 are presented as if, at the beginning of each such period, each of the
transactions and events described in the second and third paragraphs,
respectively, of "Pro Forma Combined Financial Statements" had occurred. The
pro forma financial information is not necessarily indicative of the results
that would have been reported had such transactions and events actually
occurred on the dates specified, nor is it indicative of the Company's
future results. See "Pro Forma Combined Financial Statements" and the
historical financial information relating to the Company set forth in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994
(the "1994 Form 10-K") and the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995, as amended (the "June Form 10-Q"), both of
which are incorporated herein by reference, and the historical financial
information relating to the Alliance Stations set forth in the Company's
Current Report on Form 8-K (filed September 27, 1995) (the "Form 8-K"),
incorporated herein by reference.
(2) The historical consolidated financial results for the Company are not
comparable from year to year because of the acquisition of various
broadcasting properties by the Company during the periods covered. See
"Business--Background," appearing in the 1994 Form 10-K, incorporated herein
by reference, and "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
(3) For the year ended December 31, 1992, the Company recorded an extraordinary
loss of $12,318,000 ($0.26 per share) related to repayment of debt.
(4) See Notes 1(f) and 2 of the Notes to the Company's Consolidated Financial
Statements, appearing in the 1994 Form 10-K, incorporated herein by
reference.
(5) Includes shares of Class C Common Stock issuable upon the exercise of
warrants held by certain merchant banking partnerships affiliated with
Lehman Brothers Inc. See "Description of Capital Stock--Warrants and
Options."
(6) Excludes shares of Common Stock issuable upon the exercise of warrants and
options and issuance of deferred shares.
(7) The pro forma balance sheet data at June 30, 1995 are presented as if, at
such date, each of the transactions and events described in the first
paragraph of "Pro Forma Combined Financial Statements" had occurred. The pro
forma financial information is not necessarily indicative of the results
that would have been reported had such transactions and events actually
occurred on the date specified, nor is it indicative of the Company's future
results. See "Pro Forma Combined Financial Statements", and the historical
financial information relating to the Company and the Alliance Stations set
forth in the June Form 10-Q and the Form 8-K, respectively, both of which
are incorporated herein by reference.
(8) "Operating cash flow" means operating income plus depreciation and
amortization.
6
<PAGE>
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus, the following factors before
purchasing the shares of Class A Common Stock offered hereby.
CONTROL BY THE PRINCIPAL STOCKHOLDERS
Prior to the Offerings, Mel Karmazin, Michael A. Wiener and Gerald Carrus
(the "Principal Stockholders"), together with certain of their affiliates, owned
in the aggregate approximately 57.3% of the combined voting power of all classes
of Common Stock and approximately 68.4% of such combined voting power assuming
the exercise of all outstanding warrants and options and the issuance of all
outstanding deferred shares held by the Principal Stockholders. Upon completion
of the Offerings, the Principal Stockholders' and their affiliates' aggregate
ownership interests in the Company will permit them to retain approximately
52.7% of the combined voting power of all three classes of Common Stock and
approximately 64.2% of such combined voting power assuming the exercise of all
outstanding warrants and options and the issuance of all outstanding deferred
shares held by the Principal Stockholders. Accordingly, the Principal
Stockholders will be able to control the vote on all matters submitted to a vote
of the Company's stockholders, except (i) in the election of directors, with
respect to which the holders of the Class A and Class C Common Stock each are
entitled to elect two of the Company's nine directors by a class vote, (ii) in
connection with any proposed "going private" transaction between the Company and
any Principal Stockholder, with respect to which each share of Common Stock is
entitled to one vote per share, and (iii) as otherwise provided by law (see
"Description of Capital Stock"). The Principal Stockholders are able to elect
five of the Company's nine directors. Such control by the Principal Stockholders
may have the effect of discouraging certain types of transactions involving an
actual or potential change of control of the Company, including transactions in
which the holders of Class A Common Stock might otherwise receive a premium for
their shares over then current market prices.
Upon completion of the Offerings, the Principal Stockholders, together with
certain merchant banking partnerships (the "Lehman Investors") affiliated with
Lehman Brothers Inc. ("Lehman Brothers"), will hold shares of Common Stock
having an aggregate of 32.2% of the voting power with respect to any proposed
"going private" transaction between the Company and any Principal Stockholder
(assuming the exercise of all outstanding options and warrants held by the
Principal Stockholders and the Lehman Investors and the issuance of all deferred
shares as to which rights have been granted to Mr. Karmazin). However, none of
the Principal Stockholders has a present intention to effect a "going private"
transaction and there is no agreement among any of the Principal Stockholders
and the Lehman Investors as to how they would vote their shares of Common Stock
if any such transaction were proposed in the future.
The Lehman Investors, as the holders of all the Class C Common Stock, are
entitled to elect two of the Company's nine directors. See "Description of
Capital Stock."
KEY PERSONNEL
The Company's business is partially dependent upon the performance of
certain key individuals, including its President and Chief Executive Officer.
The Company has generally entered into long-term employment agreements with such
individuals, including its President and Chief Executive Officer.
RESTRICTION ON DIVIDENDS
The Company is currently restricted under its Second Amended and Restated
Credit Agreement, dated as of December 22, 1994 (as amended, including an
amendment dated as of June 23, 1995, the
7
<PAGE>
"Credit Agreement"), and under the terms of the Indenture (the "Senior
Subordinated Indenture") governing the Company's 10 3/8% Senior Subordinated
Notes Due 2002 (the "Senior Subordinated Notes"), from paying dividends to its
stockholders. See "Price Range of Common Stock and Dividend Policy."
LEVERAGE
As of June 30, 1995, the Company's total long-term debt was approximately
$562 million, consisting of approximately $362 million under the Credit
Agreement and $200 million of Senior Subordinated Notes. These borrowings bore
interest as of such date at an average annual rate of approximately 8.2%. Until
the net proceeds from the sale of the shares of Class A Common Stock offered
hereby are applied to finance future acquisitions of broadcasting properties,
including the Alliance Acquisition, or for general corporate purposes, the
Company expects to use such net proceeds to reduce borrowings under the Credit
Agreement. The Company anticipates that the amounts repaid under the Credit
Agreement with such proceeds eventually will be reborrowed in order to finance
future acquisitions of broadcasting properties, including the Alliance
Acquisition, subject to the consent of the lenders under the Credit Agreement to
such acquisitions, and for general corporate purposes. See "Use of Proceeds."
The Company also has registered with the Securities and Exchange Commission (the
"Commission"), pursuant to a shelf registration statement, $500 million in
aggregate principal amount of its debt securities (the "Debt Securities"). The
Company may issue Debt Securities from time to time, subject, among other
things, to compliance with applicable limitations under the Credit Agreement.
See "The Company--Recent Developments--Debt Registration Statement."
FUTURE SALES OF SHARES
The Principal Stockholders and the Lehman Investors beneficially hold
23,453,480 shares of Common Stock, including 16,923,300 shares of Common Stock
issuable upon exercise of warrants and options and issuance of deferred shares.
All of such shares held by the Principal Stockholders and the Lehman Investors
(other than 3,471,352 shares issuable to Mr. Karmazin upon exercise of options
and issuance of deferred shares, which have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and 100 shares of Class A Common
Stock that were purchased by Mr. Karmazin in a market transaction) are
"restricted" shares as defined in Rule 144 under the Securities Act ("Rule
144"). All of these "restricted" shares (other than the shares issuable upon
exercise of warrants and options and issuance of deferred shares to the extent
that, under Rule 144, such shares are not deemed to have been acquired when such
warrants and options and rights to receive deferred shares were acquired) have
been owned beneficially for at least two years by existing stockholders and,
together with the 3,471,352 shares issuable to Mr. Karmazin upon exercise of
options and issuance of deferred shares and the 100 shares that were purchased
by Mr. Karmazin in a market transaction, may be sold in the market pursuant to
Rule 144, subject to the restrictions of such Rule with regard to sales by
affiliates. The Company and the Principal Stockholders have each agreed not to
sell or grant any option for the sale of, or otherwise dispose of, any Common
Stock, or any securities convertible into or exchangeable or exercisable for
shares of Common Stock, other than the shares of Common Stock that may be
offered by the Company in the Offerings and certain other limited exceptions,
and not to file or request to be filed, as the case may be, any registration
statement with respect to Common Stock, for a period of 90 days after the date
of this Prospectus without the consent of the Representatives (as defined in
"Underwriting"). In addition, the Lehman Investors have each agreed not to
effect any public sale or distribution of any shares of Common Stock, or any
securities convertible into or exchangeable or exercisable for shares of Common
Stock, for a period of 90 days after the date of this Prospectus without the
consent of the Representatives. See "Shares Eligible for Future Sale."
8
<PAGE>
The Principal Stockholders and the Lehman Investors have certain rights to
require the Company to register all or part of the shares of Common Stock that
they own or may acquire through exercise of warrants. See "Shares Eligible for
Future Sale."
The Company can make no prediction as to the effect, if any, that sales of
shares of Common Stock, or the availability of shares for future sale, will have
on the market price of the Class A Common Stock prevailing from time to time.
Sales of substantial amounts of Common Stock (including shares upon the exercise
of warrants or options) in the public market, or the perception that such sales
could occur, could depress prevailing market prices for the Class A Common
Stock. Such sales may also make it more difficult for the Company to sell equity
securities or equity-related securities in the future at a time and price which
it deems appropriate.
REGULATORY MATTERS
The radio broadcasting industry is subject to extensive federal regulation
which, among other things, requires approval by the FCC of transfers,
assignments and renewals of radio broadcasting licenses, limits the number of
radio broadcasting properties the Company may acquire and restricts alien
ownership of capital stock of and participation in the affairs of licensees.
Legislation is pending before Congress that would significantly alter FCC
regulations with respect to, among other things, the number of AM or FM
broadcast stations which may be owned or controlled by one entity. See "The
Company--Recent Developments--Telecommunications Bills." If legislation relaxing
radio multiple ownership rules is not enacted, however, or applicable FCC
regulations are not otherwise revised, current limitations imposed by the FCC on
the number of broadcasting properties the Company can acquire could limit the
Company's ability to grow through acquisitions in the future and would require
the Company to divest itself of two FM radio stations in the Dallas/Ft. Worth
area and one FM radio station in the San Francisco/San Jose area following the
Alliance Acquisition. See "The Company-- Company Strategy" and "--Recent
Developments--The Alliance Acquisition."
9
<PAGE>
THE COMPANY
GENERAL
Infinity Broadcasting Corporation is currently the largest owner and
operator of radio stations in the United States. Infinity currently owns and
operates 27 radio stations serving 13 of the nation's largest radio markets, and
has entered into an agreement to acquire the Alliance Stations.
The following table sets forth certain information about the Company's
current radio stations as well as the Alliance Stations:
<TABLE><CAPTION>
STATIONS
1995 1994 WITH
RADIO RADIO TARGET RANKINGS IN
MARKET MARKET TARGET DEMOGRAPHICS TARGET DEMO-
STATION MARKET STATION FORMAT RANK(1) REVENUES(2) DEMOGRAPHICS RANK(3) GRAPHICS(4)
- ------------------- ---------------- ---------------- ------- ------------ ------------- ------------ ------------
($ MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
WXRK-FM............ New York, NY Classic Rock 1 $401.2 Men 25-54 3 40
WZRC-AM............ New York, NY --(5) 1 401.2 --(5) -- --(5)
WFAN-AM............ New York, NY All Sports 1 401.2 Men 25-54 6T 40
KROQ-FM(6)......... Los Angeles, CA Alternative Rock 2 457.4 Men 18-34 1 41
KRTH-FM............ Los Angeles, CA Oldies 2 457.4 Persons 25-54 2 44
WJMK-FM/........... Chicago, IL Oldies/Talk 3 296.0 Persons 25-54 5T 38
WJJD-AM
WUSN-FM............ Chicago, IL Country 3 296.0 Persons 25-54 5T 38
KOME-FM(7)......... San Francisco/ Alternative Rock 4/30(8) 187.0/ Men 18-34 5/2 51/15
San Jose, CA 35.9
KFRC-AM/FM(9)...... San Francisco, Oldies 4 187.0 Persons 25-54 6 51
CA
KYCY-FM(9)......... San Francisco, Young Country 4 187.0 Persons 25-54 18T 51
CA
WYSP-FM............ Philadelphia, PA Classic Rock 5 168.1 Men 25-54 2 25
WIP-AM............. Philadelphia, PA All Sports 5 168.1 Men 25-54 3 25
WOMC-FM............ Detroit, MI Oldies 6 153.0 Persons 25-54 6 28
WXYT-AM............ Detroit, MI News/Talk 6 153.0 Persons 25-54 15 28
WYCD-FM(9)......... Detroit, MI Young Country 6 153.0 Persons 25-54 4 28
KVIL-FM(9)......... Dallas/ Adult 7 180.0 Women 25-54 1 34
KDMM-AM(10)........ Ft. Worth, TX Contemporary/
Nostalgia
KLUV-FM............ Dallas/ Oldies 7 180.0 Persons 25-54 6T 33
Ft. Worth, TX
KYNG-FM(9)......... Dallas/Ft. Young Country 7 180.0 Persons 25-54 4 33
Worth, TX
KSNN-FM(9)(11)..... Dallas/Ft. Country 7 180.0 Persons 25-54 19T 33
Worth, TX
WJFK-FM(12)........ Washington, DC Personality 8 182.2 Men 25-54 1 30
WPGC-.............. Washington, DC Contemporary/ 8 182.2 Persons 18-34 1 29
FM/AM(13) Urban
Contemporary
KXYZ-AM(14)........ Houston, TX Spanish 9 161.2 Persons 18-49 -- --
Language
WBCN-FM............ Boston, MA Album-Oriented 10 153.8 Men 18-34 1 28
Rock
WZLX-FM............ Boston, MA Classic Rock 10 153.8 Men 25-54 2T 30
WZGC-FM............ Atlanta, GA Classic Rock 12 149.6 Men 25-54 4 18
KYCW-FM(9)......... Seattle, WA Young Country 13 110.3 Persons 25-54 17 30
WLIF-FM............ Baltimore, MD Adult 18 70.1 Women 25-54 1 20
Contemporary
WJFK-AM............ Baltimore, MD Personality 18 70.1 Men 25-54 10 21
WQYK-.............. Tampa/ Country/Talk 21 73.0 Persons 25-54 1 25
FM/AM(15) St. Petersburg,
FL
<CAPTION>
EXPIRATION
DATE OF FCC
STATION AUTHORIZATION
- ------------------- -------------
<S> <C>
WXRK-FM............ 06/01/98
WZRC-AM............ 06/01/98
WFAN-AM............ 06/01/98
KROQ-FM(6)......... 12/01/97
KRTH-FM............ 12/01/97
WJMK-FM/........... 12/01/96
WJJD-AM 12/01/96
WUSN-FM............ 12/01/96
KOME-FM(7)......... 12/01/97
KFRC-AM/FM(9)...... 12/01/97
KYCY-FM(9)......... 12/01/97
WYSP-FM............ 08/01/98
WIP-AM............. 08/01/98
WOMC-FM............ 10/01/96
WXYT-AM............ 10/01/96
WYCD-FM(9)......... 10/01/96
KVIL-FM(9)......... 08/01/97
KDMM-AM(10)........ 08/01/97
KLUV-FM............ 08/01/97
KYNG-FM(9)......... 08/01/97
KSNN-FM(9)(11)..... 08/01/97
WJFK-FM(12)........ 10/01/95
WPGC-.............. 10/01/95
FM/AM(13)
KXYZ-AM(14)........ 08/01/97
WBCN-FM............ 04/01/98
WZLX-FM............ 04/01/98
WZGC-FM............ 04/01/96
KYCW-FM(9)......... 02/01/98
WLIF-FM............ 10/01/95
WJFK-AM............ 10/01/95
WQYK-.............. 02/01/96
FM/AM(15)
</TABLE>
- ------------
<TABLE>
<C> <S>
(1) Markets ranked by 1995 Arbitron metropolitan area population.
(2) Radio advertising revenues according to Duncan's Radio Market Guide (1995 ed.).
(3) Target demographics rank by Spring 1995 Arbitron Radio Market Reports. "T" indicates a
tie in the rankings.
(footnotes continued on following page)
</TABLE>
10
<PAGE>
<TABLE>
<C> <S>
(footnotes continued from preceding page)
(4) Number of stations in each market with rankings in the Company's target demographics for
such market, based on the Spring 1995 Arbitron Radio Market Reports.
(5) Effective July 7, 1995, the Company entered into a Time Brokerage and Option Agreement
with Radio Korea New York, Inc. ("RKNY"), pursuant to which the Company will make
substantially all of the programming time on WZRC-AM available to RKNY for its Korean
language programming for a period of one year.
(6) KROQ-FM is licensed to the community of Pasadena, California.
(7) KOME-FM is licensed to the community of San Jose, California.
(8) San Francisco and San Jose have radio market ranks of 4 and 30, respectively, and
KOME-FM's rankings within target demographics in those markets are 5 and 2,
respectively.
(9) The Company has agreed to acquire the Alliance Stations, subject to certain conditions,
including the approval of the FCC. In connection with such approval, the Company will be
required to obtain temporary divestiture waivers by the FCC of certain regulations
limiting the number of radio stations which may be owned or controlled by one entity
both nationally and in a particular market. See "The Company--Recent Developments--The
Alliance Acquisition."
(10) KVIL-FM is licensed to the community of Highland Park-Dallas, Texas. KDMM-AM is licensed
to the community of Highland Park, Texas.
(11) KSNN-FM is licensed to the community of Arlington, Texas.
(12) WJFK-FM is licensed to the community of Manassas, Virginia.
(13) WPGC-FM/AM are licensed to the community of Morningside, Maryland.
(14) Not included in Arbitron rankings because the Company does not subscribe to the Arbitron
rankings in Houston.
(15) WQYK-FM is licensed to the community of St. Petersburg, Florida, and WQYK-AM is licensed
to the community of Seffner, Florida.
</TABLE>
The Company currently holds 5,000,000 shares of common stock of Westwood One
(which represented approximately 15.8% of the issued and outstanding capital
stock of Westwood One as of June 30, 1995) and warrants to purchase an
additional 3,500,000 and 500,000 shares of such common stock at an exercise
price of $3.00 and $4.00 per share, respectively, subject in part to certain
vesting requirements. The Company also manages Westwood One pursuant to a
management agreement that provides for, among other things, the grant of
additional warrants to acquire up to 500,000 shares of Westwood One common stock
at an exercise price of $5.00 per share if certain targets are met. For further
information, see "Business--Recent Developments" in the 1994 Form 10-K, which is
incorporated herein by reference.
The Company's principal executive offices are located at 600 Madison Avenue,
New York, New York 10022, and its telephone number is (212) 750-6400.
COMPANY STRATEGY
The Company's overall strategy is to own and operate radio stations in the
nation's largest radio revenue markets. The Company believes that its presence
in large markets makes it attractive to advertisers and that the overall
diversity of its stations reduces its dependence on any single station, local
economy or advertiser. The Company also believes that by serving major markets,
it is able to attract more highly skilled management, employees and on-air
talent.
In developing its stations, the Company takes a variety of actions to
improve a station's operating cash flow, including instituting strict financial
reporting requirements and cost controls, directing promotional activities,
developing programming to improve the station's appeal to a targeted audience
group and enhancing advertising sales efforts. In particular, the Company
emphasizes increasing local advertising revenues in order to reduce dependence
on national advertising revenues. During the year ended December 31, 1994, the
Company generated approximately 73% of its total revenues from local and
regional advertising.
In operating its stations, the Company concentrates on the development of
strong decentralized local management, which is responsible for the day-to-day
operations of the station. Local management, in cooperation with corporate
management, is responsible for developing programming. Corporate
11
<PAGE>
management is responsible for long-range planning, establishing policies and
procedures, maximizing cost savings where centralized purchasing is appropriate,
resource allocation and maintaining overall control of the stations.
The overall mix of a station's programming is designed to fit each station's
specific format and serve its local community. The Company's overall programming
strategy includes acquiring significant on-air talent and sports franchises for
its radio stations. The Company believes that this strategy, in addition to
developing loyal audiences for its radio stations, enables the Company to obtain
additional revenues, including revenues from syndicating such programming
franchises to other radio stations. In addition to its regular programming, all
of the Company's stations provide non-entertainment programming, such as news
and public affairs broadcasts.
The Company expects to continue to acquire radio stations with strong growth
potential in the Company's current markets, subject to the Communications Act of
1934, as amended (the "Communications Act"), and FCC rules, which currently
impose certain limits on the maximum number of radio stations the Company can
own nationwide and the number of stations the Company can own in the same
geographic market. FCC approval of the Alliance Acquisition will require the
Company to obtain temporary divestiture waivers by the FCC of these rules. See
"--Recent Developments--The Alliance Acquisition." Because the Company has
historically grown in part through the acquisition of broadcasting properties,
limitations imposed by the FCC on the number of broadcasting properties the
Company can acquire could limit the Company's ability to grow through
acquisitions in the future. For a discussion of certain pending federal
legislation that would significantly alter the FCC's radio multiple ownership
rules, see "--Recent Developments--Telecommunications Bills." See also
"Business-- General--Federal Regulation of Radio Broadcasting--Ownership
Matters" in the 1994 Form l0-K (which is incorporated herein by reference).
Other than as described in this Prospectus, the Company has no present
agreements or arrangements to acquire or sell any radio stations.
The Company's affiliation with Westwood One enables the Company to expand
its presence in the radio program distribution business while simultaneously
enhancing the programming lineups of Westwood One.
RECENT DEVELOPMENTS
The Alliance Acquisition
On September 22, 1995, the Company entered into an agreement to acquire the
Alliance Stations from various entities affiliated with Alliance for $275
million, including working capital of at least $10 million. The Company expects
to use the net proceeds of the Offerings to finance the purchase of the Alliance
Stations. Until such net proceeds are applied to finance such purchase, the
Company expects to use such net proceeds to reduce borrowings under the Credit
Agreement. See "Use of Proceeds."
The consummation of the Alliance Acquisition is subject to certain
conditions, including approval of the FCC. An application seeking consent of the
FCC to complete the Alliance Acquisition has been filed and is pending. As part
of such application, the Company has requested the FCC to grant temporary
divestiture waivers to allow the Company to exceed the limits imposed by the
FCC's current radio multiple ownership rules for a period of eighteen months
after completion of the Alliance Acquisition. These rules currently prohibit the
Company from owning, operating or controlling, directly or indirectly, more than
20 AM and 20 FM radio stations in the United States and more than two AM and two
FM radio stations in each of the markets in which the Company owns radio
stations. Upon completion of the Alliance Acquisition, the Company will own 23
FM radio stations, including four FM radio stations in the Dallas/Ft. Worth area
and three FM radio stations in the San Francisco/San Jose area. There can be no
assurance that the FCC will grant such temporary divestiture waivers. In the
event that such waivers are granted and the Alliance Acquisition is completed,
the Company will be required to divest itself of two of its FM stations in the
Dallas/Ft. Worth area and one of its FM stations
12
<PAGE>
in the San Francisco/San Jose area within eighteen months (or such shorter
period as may be specified in such waivers) of the date that the Alliance
Acquisition is completed unless the legislation described below under
"--Telecommunications Bills" is enacted in a form that permits the Company to
continue to own these stations or the FCC's radio multiple ownership rules are
otherwise relaxed to permit such continued ownership.
Telecommunications Bills
Both the Senate and the House of Representatives of the U.S. Congress have
reported out separate bills (S.652 and H.R. 1555) which, among other things,
contain provisions affecting multiple ownership of radio stations and broadcast
license renewal procedures. The Senate bill would require the FCC to modify its
rules to eliminate all regulations limiting the number of AM or FM broadcast
stations which may be owned or controlled by one entity either nationally or in
a particular market. However, the Senate bill would give the FCC authority to
refuse to approve the transfer or issuance of any AM or FM broadcast license to
a particular entity if the FCC determined that, by virtue of the acquisition,
the entity would thereby obtain an undue concentration of control or competition
would be harmed. The Senate bill also would extend broadcast license renewal
terms for radio stations from the present term of seven years to ten years, and
would implement a "two step" renewal process that would eliminate a challenger's
right to file a competing application for an incumbent's frequency at the end of
a renewal term. New applications would only be entertained upon FCC denial of
the incumbent's application for renewal due to failure to serve the public
interest or if the incumbent licensee had engaged in serious violations of the
Communications Act or FCC regulations. The incumbent's license could not be
denied until after it was afforded notice and an opportunity for hearing. The
House of Representatives bill, with respect to radio multiple ownership,
eliminates all restrictions, both nationally and within any particular
geographical area. The House bill maintains renewal terms at seven years, and
includes the identical "two-step" renewal language of the Senate bill. The bills
are scheduled to be reconciled in conference during the Fall of 1995. However,
there can be no assurance that final legislation will be enacted or what form
any such ultimate legislation will take.
FCC Settlement; Assignment Applications
The 1994 Form 10-K contains a description of then pending FCC proceedings
relating to the broadcast of allegedly indecent material by certain of the
Company's stations (see "Business-- General --Federal Regulation of Radio
Broadcasting--Programming and Operation" in the 1994 Form 10-K). On September 1,
1995, the Company, the FCC and the Department of Justice entered into a
Settlement Agreement which vacates or dismisses those proceedings as well as all
pending complaints against the Company's stations relating to indecency, and
expunges all of those proceedings and complaints from the Company's FCC records.
Without any admission of guilt, liability or wrongdoing, the Company has agreed
to make two voluntary contributions to the United States Treasury totaling
$1.715 million. On September 5, 1995, the FCC released an Order implementing the
terms of the Settlement Agreement which became final on October 5, 1995.
The 1994 Form 10-K also provides information with respect to a Formal
Petition to Deny filed by Americans for Responsible Television ("ART") against
the Company's application to purchase radio station KRTH-FM in Los Angeles (see
"Business--General-- Federal Regulation of Radio Broadcasting--Programming and
Operation" in the 1994 Form 10-K). On February 1, 1994, the FCC dismissed ART's
Petition to Deny and granted the KRTH-FM assignment application. On August 25,
1995, the FCC released an Order denying a petition for reconsideration filed by
ART. The KRTH-FM grant became final on September 25, 1995.
The same section of the 1994 Form 10-K referenced in the preceding paragraph
also provides information with respect to the filing of a Petition to Deny by
ART against the Company's application to acquire Station KLUV-FM in Dallas/Ft.
Worth, Texas. The FCC subsequently dismissed ART's Petition and granted the
KLUV-FM assignment application. The FCC's grant has since become final.
13
<PAGE>
Debt Registration Statement
The Company has registered with the Commission, pursuant to a shelf
registration statement, $500 million in aggregate principal amount of Debt
Securities. The Company may issue Debt Securities from time to time. The Credit
Agreement currently prohibits the incurrence of additional indebtedness by the
Company other than (a) under the Credit Agreement, or (b) subject to certain
limitations, (i) to repay or prepay existing indebtedness under the Credit
Agreement or existing senior subordinated indebtedness of the Company, or (ii)
in an aggregate principal amount not exceeding $35 million at any one time
outstanding. Pursuant to the amendment to the Credit Agreement dated as of June
23, 1995, subject to certain limitations, to the extent that the net proceeds
from sales of Debt Securities are received by the Company prior to December 31,
1995, up to $200 million of the amounts repaid under the Credit Agreement may be
reborrowed, subject under certain circumstances to the consent of the lenders
under the Credit Agreement, for general corporate purposes, including for
working capital, capital expenditures, investments in or loans to subsidiaries,
refinancing of debt, future acquisitions and restricted payments, including
repurchases of Class A Common Stock.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the shares of Class A
Common Stock offered hereby are estimated to be approximately $ million
(or approximately $ million if the Underwriters' over-allotment options
are exercised in full). The Company expects that such net proceeds will be used
to finance future acquisitions of broadcasting properties, including the
Alliance Acquisition, and for general corporate purposes. The Company has agreed
to pay a purchase price of $275 million (including working capital of at least
$10 million) for the Alliance Stations. See "The Company--Recent
Developments--The Alliance Acquisition." The Company reviews potential
acquisition opportunities on an ongoing basis, and periodically engages in
discussions with acquisition candidates. The Company has not, however, entered
into any definitive agreements with respect to the acquisition of any
broadcasting properties, other than with respect to the Alliance Acquisition.
Until the net proceeds from the sale of the shares of Class A Common Stock
offered hereby are applied as described above, the Company expects to use such
net proceeds to reduce borrowings under the Credit Agreement. Such borrowings
bore interest as of June 30, 1995 at an average annual rate of approximately
7.0%, and have a final maturity of the unpaid principal amount thereof in June
2003. A total of approximately $362 million in borrowings was outstanding under
the Credit Agreement at June 30, 1995. The Company anticipates that the amounts
repaid under the Credit Agreement with such proceeds eventually will be
reborrowed in order to finance future acquisitions of broadcasting properties,
including the Alliance Acquisition, subject to the consent of the lenders under
the Credit Agreement to such acquisitions, and for general corporate purposes.
As of June 30, 1995, $338 million was available under the Credit Agreement for
acquisitions of radio stations (without taking into account any amounts that the
Company expects will be repaid using the proceeds of the Offerings). See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources."
14
<PAGE>
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Class A Common Stock has been quoted on the New York Stock Exchange
under the symbol "INF" since June 22, 1995. Prior to such date, the Class A
Common Stock was quoted on the NASDAQ National Market System under the symbol
"INFTA." The following table sets forth, for the calendar quarters indicated,
the high and low sales prices in dollars per share of the Class A Common Stock
on the New York Stock Exchange or on the NASDAQ National Market System, as
applicable, as reported in published financial sources.
FISCAL YEAR HIGH LOW
- ------------------------------------------------------------- ------ ------
1993:
First Quarter.............................................. $ 9.26 $ 6.81
Second Quarter............................................. 12.45 9.04
Third Quarter.............................................. 21.45 13.55
Fourth Quarter............................................. 23.78 16.50
1994:
First Quarter.............................................. $22.50 $16.67
Second Quarter............................................. 18.67 13.50
Third Quarter.............................................. 22.00 16.00
Fourth Quarter............................................. 21.17 18.33
1995:
First Quarter.............................................. $28.67 $20.17
Second Quarter............................................. 37.50 25.83
Third Quarter (through October 17, 1995)................... 37.63 29.38
As of June 30, 1995, there were approximately 6,500 holders of Class A
Common Stock, eight holders of record of the Class B Common Stock and four
holders of record of the Class C Common Stock.
The closing sale price for the Class A Common Stock as of October 17, 1995,
as reported in published financial sources, is set forth on the cover page of
this Prospectus. There is no public trading market for the Class B Common Stock
or the Class C Common Stock.
The Company has never paid dividends on shares of Common Stock. The Company
intends to retain future earnings for use in its business and does not
anticipate paying any dividends on shares of Common Stock in the foreseeable
future. The Company is restricted by the Credit Agreement from paying dividends
on the Common Stock unless certain amounts are available and certain other
conditions are satisfied. In addition, under the terms of the Senior
Subordinated Indenture, the Company may only pay dividends if a specific
financial test is met. See "Description of Capital Stock-- Common
Stock--Dividends."
15
<PAGE>
CAPITALIZATION
The following table sets forth (i) the capitalization of the Company at June
30, 1995 and (ii) the pro forma capitalization of the Company at June 30, 1995,
reflecting (a) the sale of the 8,500,000 shares of Class A Common Stock offered
by the Company hereby for estimated net proceeds of $30 per share, (b) the
application of the net proceeds of the Offerings (estimated to be approximately
$255 million) together with $20 million of borrowings under the Credit
Agreement, to finance the Alliance Acquisition and (c) the completion of the
pending Alliance Acquisition. See "The Company-- Recent Developments--The
Alliance Acquisition," "Use of Proceeds," "Pro Forma Combined Financial
Statements" and "Description of Capital Stock."
<TABLE>
<CAPTION>
JUNE 30, 1995
------------------------
ACTUAL PRO FORMA
--------- -----------
(IN THOUSANDS)
(UNAUDITED)
<S> <C> <C>
Long-term debt:(1)
Credit Agreement(2)................................................ $ 362,000 $ 382,000
10 3/8% Senior Subordinated Notes Due 2002......................... 200,000 200,000
--------- -----------
Total long-term debt............................................. 562,000 582,000
Stockholders' equity (deficiency):(3)
Preferred Stock, $.01 par value; 1,000,000 shares authorized; no
shares issued and outstanding.................................... -- --
Class A Common Stock, $.002 par value; 200,000,000 shares
authorized (4); 43,549,202 shares issued (52,049,202 shares pro
forma)........................................................... 87 104
Class B Common Stock, $.002 par value; 17,500,000 shares
authorized; 5,550,031 shares issued and outstanding (5,550,031
shares pro forma)................................................ 11 11
Class C Common Stock, $.002 par value; 30,000,000 shares
authorized; 744,171 shares issued and outstanding (744,171 shares
pro forma)....................................................... 1 1
Additional paid-in capital......................................... 260,592 515,575
Retained earnings (accumulated deficit)............................ (233,141) (233,141)
Less 2,430,045 shares of treasury stock at cost (2,430,045 shares
pro forma)....................................................... (47,942) (47,942)
--------- -----------
Total stockholders' equity (deficiency).......................... (20,392) 234,608
--------- -----------
Total capitalization............................................. $ 541,608 $ 816,608
--------- -----------
--------- -----------
</TABLE>
- ------------
(1) For information concerning the Company's long-term debt, see the Notes to
the Company's Consolidated Financial Statements included in the 1994 Form
10-K and the Notes to the Company's Condensed Consolidated Financial
Statements included in the June Form 10-Q (both of which are incorporated
herein by reference).
(2) Until the net proceeds from the sale of the shares of Class A Common Stock
offered hereby are applied to finance future acquisitions of broadcasting
properties, including the Alliance Acquisition, or for general corporate
purposes, the Company intends to use such net proceeds to reduce borrowings
under the Credit Agreement.
(3) Excludes shares of Class A Common Stock issuable upon future conversions of
shares of Class B or Class C Common Stock and any future exercise of stock
options or warrants or issuance of deferred shares.
(4) The Company's authorized shares were increased from 75,000,000 to
200,000,000 on August 8, 1995.
16
<PAGE>
PRO FORMA COMBINED FINANCIAL STATEMENTS
The unaudited pro forma combined balance sheet data at June 30, 1995 are
presented as if, at such date, (i) the Company had completed the Alliance
Acquisition, (ii) the Offerings had been completed for estimated net proceeds of
$30 per share and (iii) such net proceeds of the Offerings, together with $20
million of borrowings under the Credit Agreement, had been used to finance the
pending Alliance Acquisition. See "The Company--Recent Developments--The
Alliance Acquisition" and "Use of Proceeds."
The unaudited pro forma combined statement of operations data for the six
months ended June 30, 1995 are presented as if, at the beginning of the period,
(i) the Company had completed the acquisition of radio station KLUV-FM (which
acquisition was completed in April 1995), (ii) the Company had completed the
pending Alliance Acquisition, (iii) the Offerings had been completed for
estimated net proceeds of $30 per share and (iv) such net proceeds of the
Offerings, together with $20 million of borrowings under the Credit Agreement,
had been used to finance the pending Alliance Acquisition. See "The
Company--Recent Developments--The Alliance Acquisition" and "Use of Proceeds."
The unaudited pro forma combined statement of operations data for the year
ended December 31, 1994 are presented as if, at the beginning of the period, (i)
the Company had completed the acquisitions of radio stations KRTH-FM,
WPGC-AM/FM, WXYT-AM and KLUV-FM, (ii) the Company had completed the pending
Alliance Acquisition, (iii) the Offerings had been completed for estimated net
proceeds of $30 per share, (iv) such net proceeds of the Offerings, together
with $20 million of borrowings under the Credit Agreement, had been used to
finance the pending Alliance Acquisition and (v) the Company had effected the
May 19, 1995 three-for-two stock split. See "The Company--Recent
Developments--The Alliance Acquisition" and "Use of Proceeds."
In the opinion of management, all adjustments necessary to present fairly
this pro forma information have been made.
These pro forma combined financial statements should be read in conjunction
with the Company's Consolidated Financial Statements and the Notes thereto
(included in the 1994 Form 10-K incorporated herein by reference), the Company's
Condensed Consolidated Financial Statements and the Notes thereto (included in
the June Form 10-Q incorporated herein by reference) and the Consolidated
Financial Statements and the Notes thereto of Alliance (included in the Form 8-K
incorporated herein by reference). The pro forma information is not necessarily
indicative of the results that would have been reported had such events actually
occurred on the dates specified, nor is it indicative of the Company's future
results.
17
<PAGE>
INFINITY BROADCASTING CORPORATION
PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1995
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA COMPANY
COMPANY AS ADJUSTMENTS ALLIANCE PRO FORMA
REPORTED FOR OFFERINGS (1) ACQUISITION (2) COMBINED
---------- ----------------- --------------- ---------
<S> <C> <C> <C> <C>
ASSETS:
Current assets............................. $ 90,949 $ 255,000 $(245,000) $ 100,949
Property and equipment, net................ 21,433 6,876 28,309
Intangible assets, net..................... 472,268 258,124 730,392
Other assets............................... 13,342 13,342
---------- ----------------- --------------- ---------
Total assets........................... $597,992 $ 255,000 $ 20,000 $ 872,992
---------- ----------------- --------------- ---------
---------- ----------------- --------------- ---------
LIABILITIES:
Current liabilities........................ $ 56,384 $ 56,384
Long-term debt............................. 562,000 $ 20,000 582,000
Stockholders' equity (deficiency).......... (20,392) $ 255,000 234,608
---------- ----------------- --------------- ---------
Total liabilities and stockholders'
equity (deficiency).................. $597,992 $ 255,000 $ 20,000 $ 872,992
---------- ----------------- --------------- ---------
---------- ----------------- --------------- ---------
</TABLE>
- ------------
(1) To reflect the issuance of the shares of Class A Common Stock offered by the
Company hereby.
(2) To reflect the expected ultimate application of the net proceeds from the
Offerings of $255 million and the use of $20 million of borrowings under the
Credit Agreement for the pending Alliance Acquisition and to allocate the
preliminary purchase price of $275 million as follows:
<TABLE>
<CAPTION>
CARRYING VALUE
REPORTED BY ALLOCATION OF
ALLIANCE ADJUSTMENTS PURCHASE PRICE
-------------- ----------- --------------
<S> <C> <C> <C>
Assets:
Current assets.................................... $ 11,111 $ (1,111)(a) $ 10,000
Property and equipment, net....................... 6,876 6,876
Intangible assets, net............................ 68,384 189,740 258,124
------ ----------- -------
Total assets................................... $ 86,371 $ 188,629 $275,000
------ ----------- -------
------ ----------- -------
Liabilities:
Current liabilities............................... $ 10,761 $ (10,761)(a) $ 0
Long-term debt.................................... 54,500 (54,500)(a) 0
Other liabilities................................. 495 (495)(a) 0
------ ----------- -------
Total liabilities.............................. 65,756 (65,756) 0
------ ----------- -------
Partners' capital................................. 20,615 (20,615)(a) 0
------ ----------- -------
Total liabilities and partners' capital........ $ 86,371 $ (86,371) $ 0
------ ----------- -------
------ ----------- -------
</TABLE>
---------------
(a) Adjustments to eliminate assets not being acquired and liabilities not
being assumed in the Alliance Acquisition.
The information set forth with respect to the Alliance Acquisition assumes
that the Offerings and the Alliance Acquisition were completed on the same
date. The preliminary allocation of the purchase price may change upon final
appraisal of the fair values of the net assets acquired.
18
<PAGE>
INFINITY BROADCASTING CORPORATION
PRO FORMA COMBINED STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1995
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
COMPANY AS COMPANY
REPORTED ACQUISITION OF ALLIANCE PRO FORMA
(1) KLUV-FM ACQUISITION COMBINED
---------- -------------- ----------- ---------
<S> <C> <C> <C> <C>
Total revenues........................... $169,162 $ 2,462(2) $22,908(3) $ 194,532
Less agency commissions.................. 22,271 520(2) 3,733(3) 26,524
---------- ------- ----------- ---------
Net revenues............................. 146,891 1,942 19,175 168,008
Station operating expenses excluding
depreciation and amortization........... 78,116 808(2) 15,239(3) 94,163
---------- ------- ----------- ---------
Station operating income excluding
depreciation and amortization........... 68,775 1,134 3,936 73,845
Depreciation and amortization............ 24,000 1,171(4) 9,292(5) 34,463
Corporate general and administrative
expenses................................ 2,667 2,667
---------- ------- ----------- ---------
Operating income (loss).................. 42,108 (37) (5,356) 36,715
Interest expense......................... (23,883) (1,100)(6) (700)(6) (25,683)
Interest income.......................... 161 161
Income taxes............................. (686) (686)
---------- ------- ----------- ---------
Net earnings (loss)...................... $ 17,700 $ (1,137) $(6,056) $ 10,507
---------- ------- ----------- ---------
---------- ------- ----------- ---------
Net earnings per share................... $0.26 $0.14
Weighted average shares.................. 67,275 75,775(7)
</TABLE>
- ------------
(1) The Company's historical consolidated results of operations for the six
months ended June 30, 1995 include the operating results of radio station
KLUV-FM from April 21, 1995, the date the Company acquired such station.
(2) To reflect the historical operating results of KLUV-FM for the period from
January 1, 1995 to April 20, 1995 (based upon the unaudited financial
statements of KLUV-FM).
(3) To reflect the historical operating results of Alliance as follows:
<TABLE>
<CAPTION>
ADJUSTED
CARRYING VALUE HISTORICAL
REPORTED BY RESULTS OF
ALLIANCE ADJUSTMENTS ALLIANCE
-------------- ----------- ----------
<S> <C> <C> <C>
Total revenues...................................... $ 22,399 $ 509(a) $ 22,908
Less agency commissions............................. 3,733 -- 3,733
------ ----- ----------
Net revenues........................................ 18,666 509 19,175
Station operating expenses excluding depreciation
and amortization................................... 14,691 548(a) 15,239
------ ----- ----------
Station operating income excluding depreciation and
amortization....................................... 3,975 (39) 3,936
Depreciation and amortization....................... 3,452 3,452
Corporate general and administrative expenses....... 843 (843)(b) 0
------ ----- ----------
Operating income (loss)............................. (320) 804 484
Interest and other expense.......................... (3,851) 3,851(a)(b) 0
Interest and other income........................... 565 (565) (a)(b) 0
------ ----- ----------
Net income (loss) before extraordinary item......... $ (3,606) $ 4,090 $ 484
------ ----- ----------
------ ----- ----------
</TABLE>
--------------
<TABLE>
<C> <S>
(a) To reclassify miscellaneous broadcasting revenues and expenses to conform with the
Company's presentation.
(b) Assumes these items would not have been incurred by the Company during this period.
Such items consisted primarily of corporate and interest expenses.
</TABLE>
(footnotes continued on following page)
19
<PAGE>
INFINITY BROADCASTING CORPORATION
PRO FORMA COMBINED STATEMENT OF OPERATIONS--(CONTINUED)
(footnotes continued from preceding page)
(4) To reflect the pro forma depreciation and amortization expense from the
allocation of the purchase price of KLUV-FM based on the following:
franchise and other intangible assets of approximately $52.8 million over a
period of 15 years, and property and equipment of approximately $200,000
over 5 years.
(5) To reflect the pro forma depreciation and amortization expense from the
preliminary allocation of the purchase price of the Alliance Acquisition
based on the following: franchise and other intangible assets of
approximately $258 million over a period of 15 years, and property and
equipment of approximately $7 million over 5 years.
(6) To reflect additional interest expense on bank borrowings, at an interest
rate of approximately 7%, to finance the acquisition of KLUV-FM and a
portion of the Alliance Acquisition. The information set forth with respect
to the Alliance Acquisition assumes that the Offerings and the Alliance
Acquisition were completed on the same date.
(7) Adjusted to reflect the issuance of 8,500,000 shares of Class A Common Stock
in connection with the Offerings.
20
<PAGE>
INFINITY BROADCASTING CORPORATION
PRO FORMA COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
ACQUISITION
OF
KRTH-FM
COMPANY AS WPGC-AM/FM COMPANY
REPORTED AND ACQUISITON OF ALLIANCE PRO FORMA
(1) WXYT-AM KLUV-FM ACQUISITION COMBINED
---------- ---------- -------------- -------------- ---------
<S> <C> <C> <C> <C> <C>
Total revenues............. $313,359 $ 14,852(2) $ 8,556(3) $ 34,196(4) $ 370,963
Less agency commissions.... 39,239 1,966(2) 1,724(3) 5,641(4) 48,570
---------- ---------- ------- -------------- ---------
Net revenues............... 274,120 12,886 6,832 28,555 322,393
Station operating expenses
excluding depreciation
and amortization......... 143,249 6,268(2) 2,620(3) 25,268(4) 177,405
---------- ---------- ------- -------------- ---------
Station operating income
excluding depreciation
and amortization......... 130,871 6,618 4,212 3,287 144,988
Depreciation and
amortization............. 46,606 4,099(5) 3,800(6) 18,583(7) 73,088
Corporate general and
administrative expenses.. 5,633 5,633
---------- ---------- ------- -------------- ---------
Operating income (loss).... 78,632 2,519 412 (15,296) 66,267
Interest expense........... (44,689) (2,954)(8) (3,570)(9) (1,400)(9) (52,613)
Interest income............ 160 160
Income taxes............... (890) (890)
---------- ---------- ------- -------------- ---------
Net earnings (loss)........ $ 33,213 $ (435) $ (3,158) $(16,696) $ 12,924
---------- ---------- ------- -------------- ---------
---------- ---------- ------- -------------- ---------
Net earnings per share..... $0.49(10) $0.17
Weighted average shares.... 67,139(10) 75,639(11)
</TABLE>
- ------------
(1) The Company's historical consolidated results of operations for the year
ended December 31, 1994 include the operating results of radio stations
KRTH-FM from February 15, 1994, WPGC-AM/FM from June 17, 1994 and WXYT-AM
from June 27, 1994, the dates the Company acquired such stations.
(2) To reflect the historical operating results of KRTH-FM for the period from
January 1, 1994 to February 14, 1994, WPGC-AM/FM from January 1, 1994 to
June 16, 1994, and WXYT-AM from January 1, 1994 to June 26, 1994 based upon
their respective unaudited financial statements.
(3) To reflect the historical operating results of KLUV-FM for the year ended
December 31, 1994 based upon its unaudited financial statements.
(footnotes continued on following page)
21
<PAGE>
INFINITY BROADCASTING CORPORATION
PRO FORMA COMBINED STATEMENT OF OPERATIONS--(CONTINUED)
(footnotes continued from preceding page)
(4) To reflect the historical operating results of Alliance as follows:
<TABLE>
<CAPTION>
ADJUSTED
CARRYING VALUE HISTORICAL
REPORTED BY RESULTS OF
ALLIANCE ADJUSTMENTS ALLIANCE
-------------- ----------- ----------
<S> <C> <C> <C>
Total revenues....................................... $ 33,288 $ 908(a) $ 34,196
Less agency commissions.............................. 5,641 5,641
------ ----------- ----------
Net revenues......................................... 27,647 908 28,555
Station operating expenses excluding depreciation and
amortization........................................ 24,608 660(a) 25,268
------ ----------- ----------
Station operating income excluding depreciation and
amortization........................................ 3,039 248 3,287
Depreciation and amortization........................ 5,426 5,426
Corporate general and administrative expenses........ 1,789 (1,789)(b) 0
------ ----------- ----------
Operating income (loss).............................. (4,176) 2,037 (2,139)
Interest and other expense........................... (4,395) 4,395(a)(b) 0
Interest and other income............................ 973 (973)(a)(b) 0
------ ----------- ----------
Net income (loss) before extraordinary item.......... $ (7,598) $ 5,459 $ (2,139)
------ ----------- ----------
------ ----------- ----------
</TABLE>
--------------
<TABLE>
<C> <S>
(a) To reclassify miscellaneous broadcasting revenues and expenses to conform with the
Company's presentation.
(b) Assumes these items would not have been incurred by the Company during this period.
Such items consisted primarily of corporate and interest expenses.
</TABLE>
(5) To reflect the pro forma depreciation and amortization expense from the
allocation of the purchase price of KRTH-FM, WPGC-AM/FM and WXYT-AM based
on the following: franchise and other intangible assets of approximately
$206 million over a period of 15 years, and property and equipment of
approximately $6 million principally over 5 years.
(6) To reflect the pro forma depreciation and amortization expense from the
allocation of the purchase price of KLUV-FM based on the following:
franchise and other intangible assets of approximately $52.8 million over a
period of 15 years, and property and equipment of approximately $200,000
over 5 years.
(7) To reflect the pro forma depreciation and amortization expense from the
preliminary allocation of the purchase price of the Alliance Acquisition
based on the following: franchise and other intangible assets of
approximately $258 million over a period of 15 years, and property and
equipment of approximately $7 million over 5 years.
(8) To reflect additional interest expense on bank borrowings, at an interest
rate of approximately 5.2%, to finance the acquisitions.
(9) To reflect additional interest expense on bank borrowings, at an interest
rate of approximately 7%, to finance the acquisition of KLUV-FM and a
portion of the Alliance Acquisition. The information set forth with respect
to the Alliance Acquisition assumes that the Offerings and the Alliance
Acquisition were completed on the same date.
(10) Adjusted to reflect the three-for-two stock split effected by the Company
on May 19, 1995.
(11) Adjusted to reflect the issuance of 8,500,000 shares of Class A Common
Stock in connection with the Offerings.
22
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
The summary consolidated financial information for the Company presented
below under the captions "Statement of Operations Data" and "Balance Sheet Data"
for, and as of the end of, each of the years in the three-year period ended
December 31, 1994, is derived from the Company's Consolidated Financial
Statements, which financial statements have been audited by KPMG Peat Marwick
LLP, independent certified public accountants. The Company's Consolidated
Financial Statements as of December 31, 1993 and 1994 and for each of the years
in the three-year period ended December 31, 1994, and the report thereon, have
been incorporated herein by reference. This summary consolidated financial
information should be read in conjunction with the Company's Consolidated
Financial Statements and the Notes thereto, included in the 1994 Form 10-K
incorporated herein by reference, and with "Management's Discussion and Analysis
of Financial Condition and Results of Operations." The historical consolidated
financial results for the Company are not comparable from year to year because
of the acquisition of various broadcasting properties by the Company during the
periods covered.
The summary consolidated financial information for the Company presented
below under the captions "Statement of Operations Data" and "Balance Sheet Data"
for the six-month periods ended June 30, 1994 and 1995 and as of June 30, 1994
and 1995, is derived from the Company's unaudited Consolidated Financial
Statements, included in the June Form 10-Q incorporated herein by reference.
Such unaudited Consolidated Financial Statements include all adjustments
management considers necessary for a fair presentation of the data for such
periods. The historical financial results for the Company for the six months
ended June 30, 1995 are not necessarily indicative of results to be expected for
the full year. This unaudited summary consolidated financial information should
be read in conjunction with the Company's unaudited Consolidated Financial
Statements and the Notes thereto, included in the June Form 10-Q incorporated
herein by reference, and with "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
23
<PAGE>
INFINITY BROADCASTING CORPORATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
---------------------------------- --------------------
1992 1993 1994 1994 1995
--------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:(1)
Total revenues............................. $ 171,843 $234,240 $313,359 $134,036 $169,162
Net revenues............................... 150,230 204,522 274,120 116,877 146,891
Station operating expenses excluding
depreciation and amortization............. 81,707 109,601 143,249 63,863 78,116
--------- -------- -------- -------- --------
Station operating income excluding
depreciation and amortization............. 68,523 94,921 130,871 53,014 68,775
Depreciation and amortization.............. 28,926 38,853 46,606 22,050 24,000
Corporate general and administrative
expenses.................................. 4,182 4,836 5,633 2,419 2,667
--------- -------- -------- -------- --------
Operating income........................... 35,415 51,232 78,632 28,545 42,108
Interest expense........................... 39,390 36,776 44,689 20,906 23,883
Net earnings (loss) before extraordinary
items(2).................................. (9,432) 14,335 33,213 7,526 17,700
Net earnings (loss) per share before
extraordinary items(2).................... $ (.20) $ .23 $ .49 $ .11 $ .26
Cash dividends declared per common share... -- -- -- -- --
Weighted average number of shares
outstanding(3)(4)......................... 47,001(5) 62,055 67,139 67,184 67,275
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
---------------------------------- --------------------
1992 1993 1994 1994 1995
--------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:(1)
Total assets............................... $ 271,952 $378,040 $562,153 $570,345 $597,992
Long-term debt (including current
portion).................................. 380,625 365,062 531,750 544,187 562,000
Stockholders' equity (deficiency).......... (138,734) (24,240) (25,525) (28,858) (20,392)
Working capital............................ 4,656 10,610 28,877 (5,818) 34,565
</TABLE>
(footnotes on following page)
24
<PAGE>
INFINITY BROADCASTING CORPORATION (CONTINUED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
------------------------------ ------------------
1992 1993 1994 1994 1995
------- ------- -------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
FINANCIAL RATIOS AND OTHER DATA:(6)
Operating cash flow............................. $64,341 $90,085 $125,238 $50,595 $66,108
Capital expenditures............................ 1,300 1,901 1,606 674 1,189
Operating cash flow less capital expenditures... 63,041 88,184 123,632 49,921 64,919
Capital expenditures as a percentage of
operating cash flow............................ 2.02% 2.11% 1.28% 1.33% 1.80%
Operating cash flow to interest expense, net of
interest income................................ 1.68x 2.48x 2.81x 2.43x 2.79x
Operating cash flow less capital expenditures to
interest expense, net of interest income....... 1.65x 2.43x 2.78x 2.40x 2.74x
</TABLE>
- ------------
(1) The historical consolidated financial results for the Company are not
comparable from year to year because of the acquisition of various
broadcasting properties by the Company during the periods covered. See
"Business--Background" appearing in the 1994 Form 10-K, incorporated herein
by reference, and "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
(2) For the year ended December 31, 1992, the Company recorded an extraordinary
loss of $12,318,000 ($0.26 per share) related to repayment of debt.
(3) See Notes 1(f) and 2 of the Notes to the Company's Consolidated Financial
Statements, appearing in the 1994 Form 10-K, incorporated herein by
reference.
(4) Includes shares of Class C Common Stock issuable upon the exercise of
warrants held by the Lehman Investors.
(5) Excludes shares of Common Stock issuable upon the exercise of warrants and
options and issuance of deferred shares.
(6) "Operating cash flow" means operating income plus depreciation and
amortization.
25
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Six Months Ended June 30, 1995 Compared to Six Months Ended June 30, 1994
Net revenues for the six months ended June 30, 1995 were $146,891,000 as
compared to $116,877,000 for the first six months of 1994, an increase of
approximately 26%. The increase was due principally to higher advertising
revenues at most of the Company's stations, and the acquisitions of the radio
stations KRTH-FM (Los Angeles), WPGC-AM/FM (Washington, D.C.), WXYT-AM
(Detroit), and KLUV-FM (Dallas/Ft. Worth). On a pro forma basis, assuming the
above acquisitions had occurred as of the beginning of 1994, net revenues for
the first six months of 1995 would have increased by approximately 13%.
Station operating expenses excluding depreciation and amortization for the
six months ended June 30, 1995 were $78,116,000 as compared to $63,863,000 for
the first six months of 1994, an increase of approximately 22%. The increase was
principally due to the above acquisitions, expenses associated with higher
revenues and higher programming expenses. On a pro forma basis, assuming the
above acquisitions had occurred as of the beginning of 1994, station operating
expenses for the first six months of 1995 would have increased by approximately
10%.
Depreciation and amortization expense for the first six months of 1995 was
$24,000,000 as compared to $22,050,000 for the first six months of 1994, an
increase of approximately $1,950,000 or 9%. The increase was due to the
depreciation and amortization expense associated with the above acquisitions.
Operating income for the first six months of 1995 was $42,108,000 as
compared to $28,545,000 for the first six months of 1994, an increase of
approximately 48%. The increase was due principally to improved results at the
Company's radio stations.
Net financing expense (defined as interest expense less interest income) for
the first six months of 1995 was $23,722,000 as compared to $20,817,000 for the
first six months of 1994, an increase of approximately 14%. The increase was due
principally to additional interest expense associated with the additional
borrowings incurred to finance the above acquisitions.
Net income for the first six months of 1995 was $17,700,000 ($0.26 per
share) as compared to $7,526,000 ($0.11 per share) for the first six months of
1994, an increase of approximately $10,174,000, or 135%.
Year Ended December 31, 1994 Compared to Year Ended December 31, 1993
Net revenues for the year ended December 31, 1994 were $274,120,000 as
compared to $204,522,000 for the year ended December 31, 1993, an increase of
approximately 34%. The increase was due principally to higher advertising
revenues at most of the Company's stations and the acquisitions of radio
stations KRTH-FM, WPGC-AM/FM and WXYT-AM. On a pro forma basis, assuming the
above acquisitions had occurred as of the beginning of 1993, net revenues for
the year ended December 31, 1994 would have increased by approximately 14%.
Station operating expenses (excluding depreciation and amortization) for the
year ended December 31, 1994 were $143,249,000 as compared to $109,601,000 for
the year ended December 31, 1993, an increase of approximately 31%. The increase
was due principally to the above acquisitions, expenses associated with higher
revenues and higher programming expenses. On a pro forma basis, assuming the
above acquisitions had occurred as of the beginning of 1993, station operating
expenses in 1994 would have increased by approximately 11%.
26
<PAGE>
Depreciation and amortization expense for the year ended December 31, 1994
was $46,606,000 as compared to $38,853,000 for the year ended December 31, 1993,
an increase of approximately $7,753,000 or 20%. The increase was due to
depreciation and amortization expense associated with the above acquisitions.
Operating income for the year ended December 31, 1994 was $78,632,000, as
compared to $51,232,000 for the year ended December 31, 1993, an increase of
approximately 53%. The increase was due principally to improved results at the
Company's radio stations.
Net financing expense (defined as interest expense less interest income) for
the year ended December 31, 1994 was $44,529,000 as compared to $36,291,000 for
the year ended December 31, 1993, an increase of approximately 23%. The increase
was due principally to additional borrowings in connection with the above
acquisitions as well as higher interest rates during 1994.
Income taxes, principally state and local income taxes, for the year ended
December 31, 1994 were $890,000 as compared to $606,000 for the year ended
December 31, 1993, an increase of $284,000. No federal income taxes have been
provided as a result of available tax loss carry forwards.
Net earnings for the year ended December 31, 1994 was $33,213,000 ($0.49 per
share) as compared to $14,335,000 ($0.23 per share) for the year ended December
31, 1993, an increase of approximately $18,878,000 or 132%.
Year Ended December 31, 1993 Compared to Year Ended December 31, 1992
Net revenues for the year ended December 31, 1993 were $204,522,000 as
compared to $150,230,000 for the year ended December 31, 1992, an increase of
approximately 36%. The increase was due principally to higher advertising
revenues at most of the Company's stations and the acquisitions of radio
stations WIP-AM (Philadelphia) on September 1, 1993 and the WZGC-FM (Atlanta),
WZLX-FM (Boston) and WUSN-FM (Chicago) on February 1, 1993, and the acquisition
of WFAN-AM (New York) effective April 16, 1992. On a pro forma basis, assuming
the above acquisitions had occurred as of the beginning of 1992, net revenues
for the year ended December 31, 1993 would have increased by approximately 14%.
Station operating expenses (excluding depreciation and amortization) for the
year ended December 31, 1993 were $109,601,000 as compared to $81,707,000 for
the year ended December 31, 1992, an increase of approximately 34%. The increase
was due principally to the above acquisitions, expenses associated with higher
revenues and higher programming expenses. On a pro forma basis, assuming the
above acquisitions had occurred as of the beginning of 1992, station operating
expenses in 1993 would have increased by approximately 12%.
Depreciation and amortization expense for the year ended December 31, 1993
was $38,853,000 as compared to $28,926,000 for the year ended December 31, 1992,
an increase of approximately $9,927,000 or 34%. The increase was due to
depreciation and amortization expense associated with the above acquisitions,
partially offset by lower depreciation and amortization expense at the Company's
other radio stations.
Operating income for the year ended December 31, 1993 was $51,232,000, as
compared to $35,415,000 for the year ended December 31, 1992, an increase of
approximately 45%. The increase was due principally to improved results at the
Company's radio stations.
Net financing expense (defined as interest expense less interest income) for
the year ended December 31, 1993 was $36,291,000 as compared to $38,238,000 for
the year ended December 31, 1992, a decrease of approximately 5%. The decrease
was due principally to lower interest rates during 1993.
27
<PAGE>
Net earnings before extraordinary items for the year ended December 31, 1993
was $14,335,000 ($0.23 per share) as compared to a net loss of $9,432,000 ($0.20
per share) for the year ended December 31, 1992, an increase of approximately
$23,767,000. As a result of the sale of shares of Class A Common Stock in
February 1992 through an initial public offering, the Company recorded in 1992 a
non-recurring charge of approximately $6,503,000, resulting from the issuance in
1990 of Common Stock to management.
In 1992, the Company recorded extraordinary charges of approximately
$12,318,000, including the write-off of deferred financing costs of
approximately $7,416,000 as a result of (a) the redemption of all of the
remaining approximately $98,000,000 principal amount of the Company's 14.25%
Subordinated Discount Debentures, and (b) the refinancing of the Company's then
existing bank credit agreement.
LIQUIDITY AND CAPITAL RESOURCES
For the first six months of 1995, net cash flow from operating activities
was approximately $38,068,000, as compared to $32,617,000 for the first six
months of 1994, an increase of approximately $5,451,000. The increase was
principally due to higher net income. The operating cash flow was used
principally to repay debt (approximately $20 million) and purchase approximately
473,000 shares of treasury stock (approximately $13.1 million). During the first
six months of 1995, the Company also borrowed approximately $50 million under
the Credit Agreement to finance the purchase of radio station KLUV-FM in
Dallas/Ft. Worth.
For the year ended December 31, 1994, net cash flow from operating
activities was approximately $73,944,000 as compared to $42,781,000 for the year
ended December 31, 1993, an increase of approximately $31,163,000, or 73%. The
increase was principally due to higher earnings in 1994, partially offset by
higher working capital requirements. During 1994, the Company borrowed
approximately $200 million under its then existing credit agreement to finance
the acquisition and working capital of radio stations KRTH-FM, WPGC-AM/FM and
WXYT-AM. The net cash flow from operating activities of approximately $73.9
million was used principally to repay debt and purchase treasury stock.
The Company's primary needs for capital are to make acquisitions of radio
stations and to cover interest payments on its indebtedness. The Company's radio
stations do not typically require substantial capital expenditures. The Company
expects its operations to generate sufficient cash to meet its capital
expenditure and debt service requirements.
On December 22, 1994, the Company and its subsidiaries amended and restated
the Credit Agreement, which provides for aggregate borrowings of up to $700
million, including an acquisition facility of $250 million and a revolving
credit facility of $150 million (which may be used to finance acquisitions of
radio stations). Approximately $332 million of borrowings under the Credit
Agreement were used to refinance the Company's existing debt. Pursuant to an
amendment to the Credit Agreement dated as of June 23, 1995, the Company's term
loans were converted into a reducing revolving credit facility, under which
amounts may be repaid and reborrowed from time to time for general corporate
purposes, including to finance acquisitions of radio stations. The lenders'
commitments under this reducing revolving credit facility and under the Credit
Agreement's acquisition facility will periodically be permanently reduced
starting in September 1998. As a result of this amendment, all of the amounts
outstanding under the Credit Agreement from time to time may be repaid and
reborrowed to finance acquisitions of radio stations. The Credit Agreement
permits voluntary prepayments in whole or in part at any time, and it requires
mandatory prepayments under specified circumstances. As of June 30, 1995, $138
million was available under the Credit Agreement for general corporate purposes,
including acquisitions of radio stations, investments and repurchases of Class A
Common Stock, and an additional $200 million was available solely for
acquisitions of radio stations.
28
<PAGE>
The Credit Agreement contains various covenants and restrictions that impose
certain limitations on the Company and its subsidiaries, including, among
others, limitations on the incurrence of additional indebtedness by the Company
or its subsidiaries, the payment of cash dividends or other distributions, the
redemption or repurchase of the capital stock of the Company, the making of
investments and acquisitions and other similar limitations.
Under the terms of a Security Agreement among the Company, its subsidiaries,
and one of the Company's lenders acting as collateral agent, substantially all
of the assets of the Company and its subsidiaries, as well as the stock of the
Company's subsidiaries, are pledged to secure borrowings under the Credit
Agreement.
The Company has registered with the Commission, pursuant to a shelf
registration statement, $500 million in aggregate principal amount of Debt
Securities. The Company may issue Debt Securities from time to time, subject,
among other things, to compliance with applicable limitations under the Credit
Agreement. See "The Company--Recent Developments--Debt Registration Statement."
The Company expects that the net proceeds from the Offerings will be used to
finance future acquisitions of broadcasting properties, including the Alliance
Acquisition, and for general corporate purposes. Pending such application, the
Company expects to use such net proceeds to reduce borrowings under the
acquisition and revolving credit facilities of the Credit Agreement. The Company
anticipates that the amounts repaid with such net proceeds eventually will be
borrowed in order to finance such future acquisitions, including the Alliance
Acquisition, subject to the consent of the lenders under the Credit Agreement to
such acquisitions, and for general corporate purposes. See "Use of Proceeds."
29
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth information concerning the beneficial
ownership of the Common Stock as of September 1, 1995 (as adjusted to give
effect to the sale of shares of Class A Common Stock in the Offerings), by (1)
each person known to the Company to own beneficially more than 5% of any class
of Common Stock, (2) each director of the Company, (3) each executive officer of
the Company and (4) all directors and executive officers of the Company as a
group.
<TABLE>
<CAPTION>
CLASS A CLASS B CLASS C
COMMON STOCK COMMON STOCK COMMON STOCK
-------------------------- --------------------------- --------------------------
PERCENT PERCENT PERCENT
NAME SHARES (1) OF CLASS (1) SHARES (1) OF CLASS **(1) SHARES (1) OF CLASS (1)
- ----------------------------------- ---------- ------------ ---------- -------------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Gerald Carrus (2).................. -- -- 2,749,518 30.8% -- --
Michael A. Wiener (2).............. -- -- 2,389,708(3) 26.7% -- --
Mel Karmazin (2)................... 368,850(4) * 3,797,944(5) 42.5% -- --
Farid Suleman (2).................. 236,462(6) * -- -- --
Steven A. Lerman................... -- -- -- -- -- --
Alan R. Batkin..................... 23,624(7) * -- -- -- --
Jeffrey Sherman.................... 3,000(8) -- -- -- -- --
James L. Singelton................. -- -- -- -- -- --
James A. Stern..................... -- -- -- -- -- --
Lehman Investors (9)............... -- -- -- -- 14,147,460(10) 100%
The Putnam Advisory Company, Inc.
(11)............................. 710,363 1.4% -- -- -- --
Putnam Investment Management, Inc.
(11)............................. 5,294,536 10.7% -- -- -- --
College Retirement Equities Fund
(12)............................. 2,868,975 5.8% -- -- -- --
Nicholas-Applegate Capital
Management (13).................. 2,588,483 5.2%
All directors and executive
officers as a group (9 persons)... 631,936 1.3% 8,937,170 100.0%
<CAPTION>
PERCENT OF
TOTAL
VOTING
NAME POWER (1)
- ----------------------------------- ----------
<S> <C>
Gerald Carrus (2).................. 26.0%
Michael A. Wiener (2).............. 22.6%
Mel Karmazin (2)................... 27.4%
Farid Suleman (2).................. *
Steven A. Lerman................... --
Alan R. Batkin..................... *
Jeffrey Sherman.................... --
James L. Singelton................. --
James A. Stern..................... --
Lehman Investors (9)............... 11.9%
The Putnam Advisory Company, Inc.
(11)............................. *
Putnam Investment Management, Inc.
(11)............................. 5.0%
College Retirement Equities Fund
(12)............................. 2.7%
Nicholas-Applegate Capital
Management (13).................. 2.4%
All directors and executive
officers as a group (9 persons)... 64.3%
</TABLE>
- ------------
* Less than 1%
** Assumes the exercise of all options and deferred shares for the purchase of
Class B Common Stock beneficially owned. Such percentages for Messrs. Carrus
and Wiener would be 49.5% and 43.1%, respectively, assuming such options and
deferred shares are not exercised.
(1) The information as to beneficial ownership is based on information filed
with the Commission or furnished to the Company by the beneficial owners.
As used in the Table, "beneficial ownership" means the sole or shared power
to vote, or to direct the voting of, a security, or the sole or shared
investment power with respect to a security (i.e., the power to dispose of,
or to direct the disposition of, a security). For purposes of this Table, a
person is deemed to have "beneficial ownership" of any security that such
person has the right to acquire within 60 days after September 1, 1995,
except that "beneficial ownership" does not include the number of shares of
Class A Common Stock issuable upon conversion of Class B Common Stock or
Class C Common Stock, even though shares of Class B Common Stock and Class
C Common Stock are freely convertible into Class A Common Stock.
(2) The address of each person is Infinity Broadcasting Corporation, 600
Madison Avenue, New York, New York 10022.
(3) Includes 2,224,707 shares as to which Mr. Wiener has sole voting and
investment power.
(4) Includes options and warrants exercisable for 132,872 shares of Class A
Common Stock.
(5) Includes options and deferred shares exercisable for 3,387,139 shares of
Class B Common Stock.
(6) Includes options exercisable for 188,250 shares of Class A Common Stock.
(7) Includes options exercisable for 20,250 shares of Class A Common Stock,
1,687 shares as to which Mr. Batkin has sole voting and investment power
and 1,687 shares as to which Mr. Batkin has shared voting and investment
power.
(8) Includes options exercisable for 3,000 shares of Class A Common Stock.
(9) The general partners of the limited partnerships included in the Lehman
Investors are subsidiaries of Lehman Brothers Holdings Inc. The address for
each of the Lehman Investors is Three World Financial Center, New York, New
York 10285.
(10) Includes warrants exercisable for 13,403,289 shares of Class C Common
Stock.
(11) Includes Class A Common Stock beneficially owned by the Putnam Advisory
Company, Inc. ("PAC") and Putnam Investment Management, Inc. ("PIM") as
reported to the Company on January 23, 1995. PAC and PIM are both
wholly-owned subsidiaries of Putnam Investments, Inc. ("PI"), a
wholly-owned subsidiary of Marsh & McLennan Companies, Inc. ("M&MC"). Of
the 710,363 shares of Class A Common Stock beneficially owned by PAC,
552,026 shares are owned with shared voting power and all are owned with
shared dispositive power. Of the 4,584,173 shares of Class A Common Stock
beneficially owned by PIM, all are
(footnotes continued on following page)
30
<PAGE>
(footnotes continued from preceding page)
owned with shared dispositive power. M&MC disclaims beneficial ownership of
all shares of Class A Common Stock beneficially owned by PAC and PIM. The
address of PAC, PIM and PI is One Post Office Square, Boston, Massachusetts
02109 and of M&MC is 1166 Avenue of the Americas, New York, New York 10036.
(12) Includes Class A Common Stock beneficially owned by College Retirement
Equities Fund ("CREF") as reported to the Company in June, 1995. The
address of CREF is 730 Third Avenue, New York, New York 10017.
(13) Of the 2,588,483 shares of Class A Common Stock beneficially owned by
Nicholas-Applegate Capital Management ("Nicholas-Applegate"), all of such
shares are owned with sole dispositive power and 2,052,478 shares are owned
with sole voting power. Nicholas-Applegate does not have any voting power
with respect to 536,005 of such shares. The address of Nicholas-Applegate
is 600 West Broadway, Floor 29, San Diego, California 92101.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 200,000,000 shares of
Class A Common Stock, $.002 par value, 40,998,405 of which were issued and
outstanding at September 1, 1995; 17,500,000 shares of Class B Common Stock,
$.002 par value, 5,550,031 of which were issued and outstanding at September 1,
1995; 30,000,000 shares of Class C Common Stock, $.002 par value, 744,171 of
which were issued and outstanding at September 1, 1995; and 1,000,000 shares of
Preferred Stock, $.01 par value, none of which was issued or outstanding at such
date. Upon completion of the Offerings, the Company will have outstanding
49,498,405 shares of Class A Common Stock, 5,550,031 shares of Class B Common
Stock and 744,171 shares of Class C Common Stock. In addition, the Company will
have reserved for issuance (i) 23,084,630 shares of Class A Common Stock upon
the conversion of Class B or Class C Common Stock, (ii) an aggregate of 48,659
shares of Class A Common Stock upon the exercise of warrants exercisable for
Class A Common Stock, (iii) 6,190,337 shares of Class A Common Stock and
1,181,250 shares of Class B Common Stock under the Company's Stock Option Plan,
(iv) 263,250 shares of Class A Common Stock and 281,253 shares of Class B Common
Stock under the Company's Deferred Share Plan, (v) an aggregate of 2,908,960
shares of Class B Common Stock upon the exercise of options exercisable for
Class B Common Stock and (vi) an aggregate of 13,403,289 shares of Class C
Common Stock upon the exercise of Lehman Warrants. See "Description of Capital
Stock--Warrants and Options."
COMMON STOCK
Dividends. Holders of shares of Common Stock are entitled to receive such
dividends as may be declared by the Company's Board of Directors out of funds
legally available for such purpose. No dividends may be declared or paid in cash
or property on any share of any class of Common Stock, however, unless
simultaneously the same dividend is declared or paid on each share of the other
classes of Common Stock. In the case of any stock dividend, holders of Class A
Common Stock are entitled to receive the same percentage dividend (payable in
shares of Class A Common Stock) as the holders of Class B Common Stock receive
(payable in shares of Class B Common Stock) or the holders of Class C Common
Stock receive (payable in shares of Class C Common Stock). The payment of
dividends is currently restricted by the Credit Agreement and by the
Subordinated Indenture. See "Price Range of Common Stock and Dividends."
Voting Rights. Holders of shares of Common Stock vote as a single class on
all matters submitted to a vote of the stockholders, with each share of Class A
and Class C Common Stock entitled to one vote and each share of Class B Common
Stock entitled to ten votes, except (i) for the election of directors, (ii) with
respect to any proposed "going private" transaction between the Company and any
Principal Stockholder, and (iii) as otherwise provided by law.
In the election of directors, the holders of Class A Common Stock, voting as
a separate class, are entitled to elect two of the Company's nine directors and
holders of the Class C Common Stock, voting as a separate class, are also
entitled to elect two of the Company's nine directors. The holders of
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<PAGE>
Common Stock, voting as a single class with each share of Class A and Class C
Common Stock entitled to one vote and each share of Class B Common Stock
entitled to ten votes, are entitled to elect the remaining five directors.
Holders of Common Stock are not entitled to cumulative votes in the election of
directors.
In the event that all of the issued and outstanding shares of Class C Common
Stock are converted into shares of Class A Common Stock in accordance with the
terms of the Company's Restated Certificate of Incorporation (see "Common
Stock--Other Provisions"), the holders of the remaining shares of the
outstanding classes of Common Stock, voting as a single class, will be entitled
to elect the directors previously elected by the holders of the Class C Common
Stock.
The holders of the Common Stock vote as a single class with respect to any
proposed "going private" transaction with a Principal Stockholder, with each
share of each class of Common Stock entitled to one vote per share.
Under Delaware law, the affirmative vote of the holders of a majority of the
outstanding shares of any class of common stock is required to approve, among
other things, a change in the designations, preferences and limitations of the
shares of such class of common stock.
Liquidation Rights. Upon liquidation, dissolution, or winding-up of the
Company, the holders of Class A Common Stock are entitled to share ratably with
the holders of Class B and Class C Common Stock in all assets available for
distribution after payment in full of creditors.
Other Provisions. Each share of Class B Common Stock is convertible, at the
option of its holder, into one share of Class A Common Stock at any time. One
share of Class B Common Stock converts automatically into one share of Class A
Common Stock upon its sale or other transfer to a party unaffiliated with a
Principal Stockholder or, in the event of a transfer to an affiliated party,
upon the death of the transferor. Each share of Class C Common Stock is
convertible, at the option of its holder, into one share of Class A Common Stock
at any time. One share of Class C Common Stock converts automatically into one
share of Class A Common Stock upon its sale or other transfer to a party
unaffiliated with the Lehman Investors. In addition, all outstanding shares of
Class C Common Stock convert automatically into an equal number of shares of
Class A Common Stock upon the date on which the Lehman Investors no longer own
at least 10% of the shares of all classes of Common Stock on a fully diluted
basis. The holders of Common Stock are not entitled to preemptive or
subscription rights. The shares of Common Stock presently outstanding are, and
the shares of Class A Common Stock offered hereby will be, upon issuance,
validly issued, fully paid and nonassessable. In any merger, consolidation or
business combination, the consideration to be received per share by holders of
Class A Common Stock must be identical to that received by holders of Class B
and Class C Common Stock, except that in any such transaction in which shares of
Common Stock are distributed, such shares may differ as to voting rights to the
extent that voting rights now differ among the classes of Common Stock. No class
of Common Stock may be subdivided, consolidated, reclassified or otherwise
changed unless concurrently the other classes of Common Stock are subdivided,
consolidated, reclassified or otherwise changed in the same proportion and in
the same manner.
PREFERRED STOCK
The 1,000,000 authorized and unissued shares of Preferred Stock may be
issued with such designations, voting powers, preferences, and relative,
participating, optional, or other special rights, and qualifications,
limitations and restrictions of such rights, as the Company's Board of Directors
may authorize, including, but not limited to: (i) the distinctive designation of
each series and the number of shares that will constitute such series; (ii) the
voting rights, if any, of shares of such series; (iii) the dividend rate on the
shares of such series, any restriction, limitation or condition upon the payment
of such dividends, whether dividends shall be cumulative, and the dates on which
dividends are payable; (iv) the prices at which, and the terms and conditions on
which, the shares of such series may be
32
<PAGE>
redeemed, if such shares are redeemable; (v) the purchase or sinking fund
provisions, if any, for the purchase or redemption of shares of such series;
(vi) any preferential amount payable upon shares of such series in the event of
the liquidation, dissolution, or winding-up of the Company or the distribution
of its assets; and (vii) the prices or rates of conversion at which, and the
terms and conditions on which, the shares of such series may be converted into
other securities, if such shares are convertible. Although the Company has no
present intention to issue shares of Preferred Stock, the issuance of Preferred
Stock, or the issuance of rights to purchase such shares, could discourage an
unsolicited acquisition proposal.
WARRANTS AND OPTIONS
In September 1990, the Company issued warrants to purchase shares of Class C
Common Stock to the Lehman Investors for a net purchase price of approximately
$22.2 million, and the Company issued additional warrants to purchase shares of
Class C Common Stock to the Lehman Investors in September 1991 for a purchase
price of approximately $26.1 million (all such warrants issued in these two
transactions, the "Lehman Warrants"). The outstanding Lehman Warrants will
entitle the Lehman Investors to purchase an aggregate of 13,403,289 shares of
Class A Common Stock at an exercise price of $.00178 per share.
In June 1988, the Company issued options to Mr. Karmazin and in September
1991, the Company issued warrants to Mr. Karmazin (such options and warrants,
collectively, the "Karmazin Warrants"). The currently outstanding options
constituting the Karmazin Warrants entitle Mr. Karmazin to purchase an aggregate
of 2,908,960 shares of Class B Common Stock at an exercise price of $.0178 per
share, and the currently outstanding warrants constituting the Karmazin Warrants
entitle Mr. Karmazin to purchase an aggregate of 48,659 shares of Class A Common
Stock at an exercise price of $.0006 per share. In addition, in April 1993,
March 1994 and January 1995, in accordance with Mr. Karmazin's employment
agreement with the Company, the Company issued options and granted rights to
receive deferred shares to Mr. Karmazin under the Company's Stock Option and
Deferred Share Plans. These options and rights to receive deferred shares
entitle Mr. Karmazin to purchase an aggregate of 84,213 shares of Class A Common
Stock at an exercise price of $17.00 per share and 168,750, 112,500, 177,126 and
19,803 shares of Class B Common Stock at an exercise price of $6.17, $17.00,
$21.08 and $.002 per share, respectively.
The Company has reserved 48,659 shares of Class A Common Stock for issuance
upon the exercise of a portion of the Karmazin Warrants, 2,908,960 shares of
Class B Common Stock for issuance upon the exercise of the other Karmazin
Warrants and 13,403,289 shares of Class A Common Stock for issuance upon
exercise of the Lehman Warrants. All such warrants contain provisions that
prevent dilution of the rights of the holders of such warrants, including
provisions for adjusting the number of shares of common stock covered by such
warrants and the per share price of those shares in the event of the declaration
of any dividend on the Common Stock in shares of Common Stock or any
subdivision, combination or reclassification of the Common Stock. In addition,
the Company has reserved 6,453,587 shares of Class A Common Stock and 1,462,503
shares of Class B Common Stock for issuance under the Company's Stock Option and
Deferred Share Plans.
TRANSFER AGENT
Harris Trust Company of New York is the Transfer Agent and Registrar for the
Class A Common Stock.
FOREIGN OWNERSHIP
The Company's Restated Certificate of Incorporation restricts the ownership,
voting and transfer of the Company's capital stock, including the Common Stock,
in accordance with the Communications
33
<PAGE>
Act and the rules of the FCC, to prohibit ownership of more than 25% of the
Company's outstanding capital stock (or more than 25% of the voting rights it
represents) by or for the account of aliens or corporations otherwise subject to
domination or control by aliens. Such Certificate also prohibits any transfer of
the Company's capital stock that would cause the Company to violate this
prohibition. In addition, the Certificate authorizes the Board of Directors of
the Company to adopt such provisions as it deems necessary to enforce these
prohibitions.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offerings, the Company will have outstanding
49,498,405 shares of Class A Common Stock, 5,550,031 shares of Class B Common
Stock and 744,171 shares of Class C Common Stock. Each share of Class B Common
Stock is convertible at the option of its holder into one share of Class A
Common Stock at any time, and each share automatically converts into one share
of Class A Common Stock upon the sale or other transfer to a party unaffiliated
with a Principal Stockholder or, if shares have been transferred to an
affiliated party, upon the death of the transferor of such shares. Each share of
Class C Common Stock is convertible, at the option of its holder, into one share
of Class A Common Stock at any time. One share of Class C Common Stock converts
automatically into one share of Class A Common Stock upon its sale or other
transfer to a party unaffiliated with the Lehman Investors. In addition, all
outstanding shares of Class C Common Stock convert automatically into an equal
number of shares of Class A Common Stock on the date on which the Lehman
Investors no longer own at least 10% of the shares of all classes of Common
Stock of the Company on a fully diluted basis. See "Description of Capital
Stock--Common Stock." The 8,500,000 shares of Class A Common Stock sold in the
Offerings will be freely tradeable without restriction or further registration
under the Securities Act, except by affiliates of the Company.
284,537 shares of Class A Common Stock, 5,550,031 shares of Class B Common
Stock and 14,147,460 shares of Class C Common Stock beneficially owned by the
Principal Stockholders and the Lehman Investors (including 48,659 shares of
Class A Common Stock and 13,403,289 shares of Class C Common Stock issuable upon
exercise of the Lehman Warrants and a portion of the Karmazin Warrants) are
"restricted" shares as defined in Rule 144. All of these "restricted" shares
(other than the shares issuable upon exercise of Lehman Warrants and Karmazin
Warrants to the extent that, under Rule 144, such shares are not deemed to have
been acquired when the Lehman Warrants and Karmazin Warrants were acquired) have
been beneficially owned for at least two years by existing stockholders and may
be sold in the open market pursuant to Rule 144, subject, in the case of the
shares of Class C Common Stock issuable to the Lehman Investors upon the
exercise of Lehman Warrants, to certain conditions which are likely to be
satisfied and, in the case of all such "restricted" shares, to the restrictions
of such Rule with regard to sales by affiliates. In general, under Rule 144, an
affiliate of the Company may sell within any three-month period a number of
shares that does not exceed the greater of 1% of the then outstanding shares of
Class A Common Stock or the average weekly trading volume of the Class A Common
Stock on all national securities exchanges and/or reported through the automated
quotation system of registered securities associations during the four calendar
weeks preceding such sale. In addition, sales under Rule 144 may be made only
through unsolicited "broker's transactions" or directly with a market maker and
are subject to various other conditions, including the availability of certain
public information about the Company for 90 days.
6,502,246 shares of Class A Common Stock and 4,371,463 shares of Class B
Common Stock that have been reserved for issuance under the Company's Stock
Option and Deferred Share Plans and the Karmazin Warrants, including 84,213
shares of Class A Common Stock and 3,387,139 shares of Class B Common Stock
issuable to Mr. Karmazin upon exercise of options and issuance of deferred
shares, have been registered under the Act and will be freely tradeable upon
issuance and, in the case of shares of Class B Common Stock, conversion into
Class A Common Stock, without restriction or further
34
<PAGE>
registration under the Securities Act, except that shares held by affiliates of
the Company must be sold subject to the applicable restrictions of Rule 144
under the Securities Act.
The Company and the Principal Stockholders have each agreed not to sell or
grant any option for the sale of, or otherwise dispose of, any Common Stock, or
any securities convertible into or exchangeable or exercisable for shares of
Common Stock, other than the shares of Common Stock that may be offered by the
Company in the Offerings and certain other limited exceptions, and not to file
or request to be filed, as the case may be, any registration statement with
respect to Common Stock, for a period of 90 days after the date of this
Prospectus without the consent of the Representatives. In addition, the Lehman
Investors have each agreed not to effect any public sale or distribution of any
shares of Common Stock, or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, for a period of 90 days after the date
of this Prospectus without the consent of the Representatives.
The Stockholders' Agreement among the Company, the Principal Stockholders
and the Lehman Investors (the "Stockholders' Agreement") provides that each of
the Principal Stockholders has the right to require the Company to prepare and
file one registration statement under the Securities Act with respect to their
shares of Common Stock, and the Company is required to use its best efforts to
effect such registration, subject to certain conditions and limitations. The
Stockholders' Agreement also provides that the Lehman Investors have one
remaining right to require the Company to prepare and file a registration
statement under the Securities Act with respect to their shares of Common Stock,
and the Company is required to use its best efforts to effect such registration,
subject to certain conditions and limitations. The Stockholders' Agreement also
provides that in the event the Company proposes to register any of its
securities under the Securities Act, whether or not for its own account, at any
time or times, each of the Principal Stockholders and the Lehman Investors shall
be entitled, with certain exceptions, to include their shares of Common Stock in
such registration unless the managing underwriters of such offering exclude for
marketing reasons some or all of such shares from such registration.
The Company can make no prediction as to the effect, if any, that sales of
shares of the Common Stock, or the availability of shares for future sale, will
have on the market price of the Class A Common Stock prevailing from time to
time. Sales of substantial amounts of Common Stock (including shares issued upon
the exercise of warrants or options) in the public market, or the perception
that such sales could occur, could depress the prevailing market price for the
Class A Common Stock. Such sales may also make it more difficult for the Company
to sell equity securities or equity-related securities in the future at a time
and price which it deems appropriate.
35
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"U.S. Purchase Agreement"), the Company has agreed to sell to each of the
underwriters named below (the "U.S. Underwriters"), and each of the U.S.
Underwriters, for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Alex. Brown & Sons Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and Smith Barney Inc. are acting as
representatives (the "U.S. Representatives"), severally has agreed to purchase,
the aggregate number of shares of Class A Common Stock set forth opposite its
name below.
NUMBER OF
U.S. UNDERWRITERS SHARES
----------------- ---------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................
Goldman, Sachs & Co.................................................
Alex. Brown & Sons Incorporated.....................................
Donaldson, Lufkin & Jenrette Securities Corporation.................
Smith Barney Inc....................................................
---------
Total................................................... 6,800,000
---------
---------
The Company has also entered into a purchase agreement (the "International
Purchase Agreement" and, together with the U.S. Purchase Agreement, the
"Purchase Agreements") with Merrill Lynch International Limited, Goldman Sachs
International, Alex. Brown & Sons Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation and Smith Barney Inc., acting as representatives (the
"International Representatives" and, together with the U.S. Representatives, the
"Representatives"), and certain other underwriters outside the United States and
Canada (collectively, the "International Underwriters" and, together with the
U.S. Underwriters, the "Underwriters"). Subject to the terms and conditions set
forth in the International Purchase Agreement, the Company has agreed to sell to
the International Underwriters, and the International Underwriters severally
have agreed to purchase, an aggregate of 1,700,000 shares of Class A Common
Stock.
In each Purchase Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth in such Purchase Agreement, to
purchase all of the shares of Class A Common Stock being sold pursuant to such
Purchase Agreement if any of the shares of Class A Common Stock being sold
pursuant to such Purchase Agreement are purchased. Under certain circumstances,
under the Purchase Agreements, the commitments of non-defaulting Underwriters
may be increased. Each Purchase Agreement provides that the Company is not
obligated to sell, and the Underwriters named therein are not obligated to
purchase, the shares of Class A Common Stock under the terms of the Purchase
Agreement unless all of the shares of Class A Common Stock to be sold pursuant
to the Purchase Agreements are contemporaneously sold.
The U.S. Representatives have advised the Company that the U.S. Underwriters
propose to offer the shares of Class A Common Stock offered hereby to the public
initially at the public offering price set forth on the cover page of this
Prospectus and to certain dealers at such price less a concession not in excess
of $ per share of Class A Common Stock, and that the U.S. Underwriters may
allow, and such dealers may reallow, a discount not in excess of $ per
share of Class A Common Stock on
36
<PAGE>
sales to certain other dealers. After the initial public offering, the public
offering price, concession and discount may be changed.
The public offering price per share of Class A Common Stock and the
underwriting discount per share of Class A Common Stock are identical for both
Offerings.
The Company has granted to the U.S. Underwriters and the International
Underwriters options to purchase up to an aggregate of 1,020,000 and 255,000
shares of Class A Common Stock, respectively, at the initial public offering
price, less the underwriting discount. Such options, which will expire 30 days
after the date of this Prospectus, may be exercised solely to cover
over-allotments. To the extent that the Underwriters exercise such options, each
of the Underwriters will have a firm commitment, subject to certain conditions,
to purchase approximately the same percentage of the option shares that the
number of shares to be purchased initially by that Underwriter is of the
8,500,000 shares of Class A Common Stock initially purchased by the
Underwriters.
The Company has been informed that the Underwriters have entered into an
agreement (the "Intersyndicate Agreement") providing for the coordination of
their activities. Pursuant to the Intersyndicate Agreement, the U.S.
Underwriters and the International Underwriters are permitted to sell shares of
Class A Common Stock to each other.
The Company and the Principal Stockholders have each agreed not to sell or
grant any option for the sale of, or otherwise dispose of, any Common Stock, or
any securities convertible into or exchangeable or exercisable for shares of
Common Stock, other than the shares of Common Stock that may be offered by the
Company in the Offerings and certain other limited exceptions, and not to file
or request to be filed, as the case may be, any registration statement with
respect to Common Stock, for a period of 90 days after the date of this
Prospectus without the consent of the Representatives. In addition, the Lehman
Investors have each agreed not to effect any public sale or distribution of any
shares of Common Stock, or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, for a period of 90 days after the date
of this Prospectus without the consent of the Representatives.
The Company has been informed that, under the terms of the Intersyndicate
Agreement, the U.S. Underwriters and any dealer to whom they sell shares of
Class A Common Stock will not offer to sell or resell shares of Class A Common
Stock to persons who are non-U.S. or non-Canadian persons or to persons they
believe intend to resell to persons who are non-U.S. or non-Canadian persons,
and the International Underwriters and any bank, broker or dealer to whom they
sell shares of Class A Common Stock will not offer to resell shares of Class A
Common Stock to U.S. persons or to Canadian persons or to persons they believe
intend to resell to U.S. persons or to Canadian persons, except in the case of
transactions pursuant to the Intersyndicate Agreement which, among other things,
permits the Underwriters to purchase from each other and to offer to resell such
number of shares of Class A Common Stock as the selling Underwriter or
Underwriters and the purchasing Underwriter or Underwriters may agree.
The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act, or to contribute to
payments the Underwriters may be required to make in respect thereof.
Alliance is an affiliate of Goldman, Sachs & Co. Upon consummation of the
Alliance Acquisition, Goldman, Sachs & Co. may be deemed to have received more
than 10% of the net proceeds of the Offerings. See "Use of Proceeds." The
Offerings are being made pursuant to the provisions of paragraph (8) of Article
III, Section 44 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD") regarding participation by an NASD member
in a public offering of an issuer's securities where more than 10% of the net
offering proceeds are intended to be paid to members participating in the
distribution or associated or affiliated persons of such members.
37
<PAGE>
LEGAL MATTERS
The validity of the shares of Class A Common Stock being offered by this
Prospectus will be passed upon for the Company by Debevoise & Plimpton, 875
Third Avenue, New York, New York 10022. Certain legal matters will be passed
upon for the Underwriters by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 425 Lexington Avenue, New York, New York
10017.
EXPERTS
The consolidated financial statements and consolidated financial statement
schedule of Infinity Broadcasting Corporation and subsidiaries as of December
31, 1994 and 1993, and for each of the years in the three-year period ended
December 31, 1994, have been incorporated by reference herein and in the
registration statement in reliance on the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
To the extent that KPMG Peat Marwick LLP audits and reports on financial
statements of Infinity Broadcasting Corporation and subsidiaries issued at
future dates, and consents to the use of their report thereon, such financial
statements also will be incorporated by reference in the Registration Statement
in reliance upon their report and said authority.
The consolidated financial statements of Alliance Broadcasting, L.P. as of
December 31, 1993 and 1994 and for each of the three years in the period ended
December 31, 1994, incorporated herein and elsewhere in the Registration
Statement (as defined in "Available Information") by reference to the Form 8-K,
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048 and Citicorp Center, 14th Floor,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. In addition, such reports, proxy statements and other
information can be inspected at the offices of The New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act with respect to the shares of Class A Common Stock offered
hereby. This Prospectus, which constitutes a part of the Registration Statement,
omits certain information contained in the Registration Statement as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the shares of Class A Common Stock offered hereby,
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the
38
<PAGE>
contents of any documents referred to herein are not necessarily complete, and
in each instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
1. the Company's Annual Report on Form 10-K for the year ended December
31, 1994 (filed March 31, 1995);
2. the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995 (filed May 12, 1995);
3. the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995 (filed August 14, 1995), as amended on August 15, 1995;
4. the Company's Current Report on Form 8-K (filed September 27, 1995);
and
5. the description of the Class A Common Stock in the Company's
Registration Statement on Form 8-A (filed January 24, 1992), as amended by
Amendment No. 1 thereto (filed January 29, 1992).
All documents or reports filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the Offerings described herein shall be deemed to be incorporated
by reference into this Prospectus and to be a part of this Prospectus from the
date of filing of such document. Any statement contained herein, or in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement or this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference (other than
exhibits not specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to: Infinity
Broadcasting Corporation, 600 Madison Avenue, New York, New York 10022,
Attention: Secretary's Office (telephone: (212) 750-6400).
39
<PAGE>
================================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE CLASS A COMMON STOCK
IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
-------------------
TABLE OF CONTENTS
PAGE 8,500,000 Shares
----
Prospectus Summary.................... 3 [INFINITY LOGO]
BROADCASTING
Risk Factors.......................... 7 CORPORATION
The Company........................... 10
Use of Proceeds....................... 14 CLASS A COMMON STOCK
Price Range of Common Stock and
Dividend Policy....................... 15 -------------------
Capitalization........................ 16 PROSPECTUS
Pro Forma Combined Financial -------------------
Statements............................ 17
Summary Consolidated Financial
Information........................... 23 MERRILL LYNCH & CO.
Management's Discussion and Analysis GOLDMAN, SACHS & CO.
of Financial Condition and Results
of Operations....................... 26 ALEX. BROWN & SONS
Principal Stockholders................ 30 INCORPORATED
Description of Capital Stock.......... 31 DONALDSON, LUFKIN & JENRETTE
Shares Eligible for Future Sale....... 34 SECURITIES CORPORATION
Underwriting.......................... 36
Legal Matters......................... 37 SMITH BARNEY INC.
Experts............................... 38
Available Information................. 38
Incorporation of Certain Documents by
Reference............................. 39
, 1995
================================================================================
<PAGE>
[ALTERNATE COVER PAGE FOR INTERNATIONAL PROSPECTUS]
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 18, 1995
PROSPECTUS
8,500,000 SHARES
INFINITY BROADCASTING CORPORATION
CLASS A COMMON STOCK
------------
All of the 8,500,000 shares of Class A Common Stock offered hereby are being
sold by Infinity Broadcasting Corporation ("Infinity" or the "Company"). Of the
8,500,000 shares of Class A Common Stock offered hereby, 1,700,000 shares are
being initially offered in an international offering outside the United States
and Canada by the International Underwriters (the "International Offering") and
6,800,000 shares are being offered concurrently in the United States and Canada
by the U.S. Underwriters (the "U.S. Offering" and, together with the
International Offering, the "Offerings"). The initial public offering price and
the underwriting discount per share are identical for both Offerings. See
"Underwriting."
The Company's authorized capital stock includes Class A Common Stock, Class B
Common Stock and Class C Common Stock (collectively, the "Common Stock") and
preferred stock. The rights of holders of Common Stock are identical, except
that each share of Class B Common Stock generally entitles its holder to ten
votes, whereas each share of Class A Common Stock and Class C Common Stock
entitles its holder to one vote. In addition, the holders of Class A Common
Stock, voting as a separate class, are entitled to elect two of the Company's
nine directors and the holders of Class C Common Stock, voting as a separate
class, are also entitled to elect two of the Company's nine directors. Each
share of Class B Common Stock converts automatically into one share of Class A
Common Stock upon its sale or other transfer to a party unaffiliated with
certain of the existing stockholders of the Company or, if shares have been
transferred to an affiliated party, upon the death of the transferor of such
shares. Each share of Class C Common Stock converts automatically into one share
of Class A Common Stock upon its sale or other transfer to a party unaffiliated
with certain of the existing stockholders of the Company and upon the occurrence
of certain other events. See "Description of Capital Stock."
The Class A Common Stock has been traded on the New York Stock Exchange under
the symbol "INF" since June 22, 1995 and was formerly traded on the NASDAQ
National Market System under the symbol "INFTA." On October 17, 1995, the last
reported sale price of the Class A Common Stock on the New York Stock Exchange
was $33 1/4 per share. See "Price Range of Common Stock and Dividend Policy."
SEE "RISK FACTORS" ON PAGE 7 FOR CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
[CAPTION]
<TABLE>
<S> <C> <C> <C>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
<S> <C> <C> <C>
Per Share............................ $ $ $
Total(3)............................. $ $ $
</TABLE>
(1) The Company has agreed to indemnify the several U.S. Underwriters and
International Underwriters against certain liabilities, including
liabilities under the Securities Act of 1933. See "Underwriting."
(2) Before deducting expenses, estimated at $ , payable by the Company.
(3) The Company has granted the International Underwriters and the U.S.
Underwriters options, exercisable within 30 days after the date hereof, to
purchase up to an aggregate of 255,000 and 1,020,000 shares of Class A
Common Stock, respectively, at the initial price to public per share, less
the underwriting discount, solely to cover over-allotments, if any. If such
options are exercised in full, the total Price to Public, Underwriting
Discount and Proceeds to Company will be $ , $ and $ ,
respectively. See "Underwriting."
-------------------
The Class A Common Stock is being offered by the several Underwriters,
subject to prior sale, when, as and if issued to and accepted by them, and
subject to approval of certain legal matters by counsel for the Underwriters and
certain other conditions. The Underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. It is expected
that delivery of certificates for the shares of Class A Common Stock will be
made in New York, New York on or about October , 1995.
-------------------
MERRILL LYNCH INTERNATIONAL LIMITED
GOLDMAN SACHS INTERNATIONAL
ALEX. BROWN & SONS
INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
-------------------
The date of this Prospectus is October , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT YET BECOME EFFECTIVE. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME
THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PRELIMINARY PROSPECTUS SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
[ALTERNATE TAX SECTION FOR INTERNATIONAL PROSPECTUS]
CERTAIN U.S. TAX CONSIDERATIONS APPLICABLE TO
NON-U.S. HOLDERS OF THE CLASS A COMMON STOCK
The following is a general discussion of certain U.S. federal income and estate
tax consequences of the ownership and disposition of Class A Common Stock by a
person that, for U.S. federal income tax purposes, is a non-resident alien
individual, a foreign corporation, a foreign partnership or a foreign estate or
trust (a "non-U.S. holder"). The discussion is based upon the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), existing and proposed Treasury
regulations promulgated thereunder, and administrative and judicial
interpretations thereof as of the date hereof, all of which are subject to
change, possibly with retroactive effect. The discussion does not address all
aspects of U.S. federal taxation that may be relevant to a particular non-U.S.
holder's tax position and does not deal with U.S. state and local or non-U.S.
tax consequences.
PROSPECTIVE NON-U.S. HOLDERS OF CLASS A COMMON STOCK ARE ADVISED TO CONSULT
THEIR OWN TAX ADVISORS WITH RESPECT TO THE U.S. FEDERAL, STATE AND LOCAL TAX
CONSEQUENCES, AS WELL AS ANY NON-U.S. TAX CONSEQUENCES, OF PURCHASING, HOLDING
AND DISPOSING OF CLASS A COMMON STOCK.
Dividends. Dividends paid to a non-U.S. holder of Class A Common Stock
generally will be subject to withholding of U.S. federal income tax at a 30%
rate or such lower rate as may be specified by an applicable income tax treaty.
However, except as may be otherwise provided in an applicable income tax treaty,
dividends that are effectively connected with a non-U.S. holder's conduct of a
trade or business within the United States are subject to U.S. federal income
tax on a net income basis at applicable graduated individual or corporate rates,
and generally are not subject to withholding. Any such effectively connected
dividends received by a foreign corporation may also be subject to an additional
"branch profits tax" at a 30% rate or such lower rate as may be specified by an
applicable income tax treaty. Currently certain certification and disclosure
requirements must be complied with in order to be exempt from withholding with
respect to effectively connected dividends.
Under current Treasury regulations, dividends paid to an address in a
foreign country are presumed to be paid to a resident of such country (unless
the payer has knowledge to the contrary) for purposes of determining the
applicability of a tax treaty rate. Under proposed Treasury regulations not
currently in effect, however, a non-U.S. holder of Class A Common Stock who
wishes to claim the benefit of an applicable treaty rate would be required to
satisfy certain certification and other requirements. The procedures for
determining the applicable rate of withholding on dividends under income tax
treaties are under review by the U.S. Treasury and their application to the
Class A Common Stock could be changed by future regulations.
A non-U.S. holder of Class A Common Stock that is eligible for a reduced
rate of U.S. withholding tax pursuant to an income tax treaty may obtain a
refund of any excess amounts withheld by filing an appropriate claim for refund
with the U.S. Internal Revenue Service.
Gain on Disposition of Class A Common Stock. A non-U.S. holder generally
will not be subject to U.S. federal income tax in respect of gain recognized on
a disposition of Class A Common Stock unless (i) the gain is effectively
connected with a trade or business of the non-U.S. holder within the United
States or, if a tax treaty applies, attributable to a U.S. permanent
establishment of the non-U.S. holder (and, if the holder is a foreign
corporation, the branch profits tax described above under "--Dividends" may also
apply), (ii) in the case of a non-U.S. holder who is an individual and holds the
Class A Common Stock as a capital asset, such holder is present in the United
States for 183 or more days in the taxable year of the disposition and certain
other conditions are met, or (iii) the Company is or has been a "U.S. real
property holding corporation" for U.S. federal income tax purposes and certain
other conditions are met. The Company does not believe that it has been or is
currently, and does not anticipate becoming, a "U.S. real property holding
corporation."
36
<PAGE>
[ALTERNATE TAX SECTION FOR INTERNATIONAL PROSPECTUS]
Federal Estate Taxes. Class A Common Stock owned or treated as owned by an
individual non-U.S. holder at the time of death will be included in such
holder's gross estate for U.S. federal estate tax purposes, unless an applicable
estate tax treaty provides otherwise.
U.S. Information Reporting Requirements and Backup Withholding Tax. The
Company must report annually to the U.S. Internal Revenue Service and to each
non-U.S. holder the amount of dividends paid to such holder on the Class A
Common Stock and the tax withheld with respect to such dividends, regardless of
whether withholding was required. Such information may be made available by the
Internal Revenue Service to the tax authorities in the country in which the
non-U.S. holder resides under the provisions of an applicable income tax treaty
or agreement.
Backup withholding (which generally is a withholding tax imposed at the rate
of 31% on certain payments to persons that are not "exempt recipients" and that
fail to furnish certain information under the U.S. information reporting
requirements) and certain related information reporting requirements generally
will not apply to dividends paid on Class A Common Stock to a non-U.S. holder at
an address outside the United States unless the payer has knowledge that the
payee is a U.S. person. In general, backup withholding and information reporting
will not apply to a payment of the proceeds of a sale of Class A Common Stock to
or through a foreign office of a broker. If, however, such broker is, for U.S.
federal income tax purposes, a U.S. person, a controlled foreign corporation, or
a foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business within the United States, such
payments will not be subject to backup withholding but will be subject to the
related information reporting requirements, unless (1) such broker has
documentary evidence in its records that the beneficial owner is a non-U.S.
holder and certain other conditions are met or (2) the beneficial owner
otherwise establishes an exemption. Payment to or through a U.S. office of a
broker of the proceeds of a sale of Class A Common Stock will be subject to both
backup withholding and information reporting unless the beneficial owner
certifies under penalties of perjury that it is a non-U.S. holder or otherwise
establishes an exemption.
Any amounts withheld under the backup withholding rules from a payment to a
non-U.S. holder may be allowed as a refund or a credit against such holder's
U.S. federal income tax liability if the required information is furnished to
the U.S. Internal Revenue Service.
The backup withholding and information reporting rules are currently under
review by the U.S. Treasury and their application to the Class A Common Stock
could be changed by future regulations.
37
<PAGE>
[OTHER ALTERNATE SECTIONS FOR INTERNATIONAL PROSPECTUS]
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"International Purchase Agreement"), the Company has agreed to sell to each of
the underwriters named below (the "International Underwriters"), and each of the
International Underwriters, for whom Merrill Lynch International Limited,
Goldman Sachs International, Alex. Brown & Sons Incorporated, Donaldson, Lufkin
& Jenrette Securities Corporation and Smith Barney Inc. are acting as
representatives (the "International Representatives"), severally has agreed to
purchase, the aggregate number of shares of Class A Common Stock set forth
opposite its name below.
NUMBER OF
INTERNATIONAL UNDERWRITERS SHARES
-------------------------- ---------
Merrill Lynch International Limited.................................
Goldman Sachs International.........................................
Alex. Brown & Sons Incorporated.....................................
Donaldson, Lufkin & Jenrette Securities Corporation.................
Smith Barney Inc....................................................
---------
Total................................................... 1,700,000
---------
---------
The Company has also entered into a purchase agreement (the "U.S. Purchase
Agreement" and, together with the International Purchase Agreement, the
"Purchase Agreements") with Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Goldman, Sachs & Co., Alex. Brown & Sons Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and Smith Barney Inc., acting as representatives
(the "U.S. Representatives" and, together with the International
Representatives, the "Representatives"), and certain other underwriters in the
United States and Canada (collectively, the "U.S. Underwriters" and, together
with the International Underwriters, the "Underwriters"). Subject to the terms
and conditions set forth in the International Purchase Agreement, the Company
has agreed to sell to the U.S. Underwriters, and the U.S. Underwriters severally
have agreed to purchase, an aggregate of 6,800,000 shares of Class A Common
Stock.
In each Purchase Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth in such Purchase Agreement, to
purchase all of the shares of Class A Common Stock being sold pursuant to such
Purchase Agreement if any of the shares of Class A Common Stock being sold
pursuant to such Purchase Agreement are purchased. Under certain circumstances,
under the Purchase Agreements, the commitments of non-defaulting Underwriters
may be increased. Each Purchase Agreement provides that the Company is not
obligated to sell, and the Underwriters named therein are not obligated to
purchase, the shares of Class A Common Stock under the terms of the Purchase
Agreement unless all of the shares of Class A Common Stock to be sold pursuant
to the Purchase Agreements are contemporaneously sold.
The International Representatives have advised the Company that the
International Underwriters propose to offer the shares of Class A Common Stock
offered hereby to the public initially at the public offering price set forth on
the cover page of this Prospectus and to certain dealers at such price less a
concession not in excess of $ per share of Class A Common Stock, and that
the International Underwriters may allow, and such dealers may reallow, a
discount not in excess of $ per share of Class A Common Stock on sales to
certain other dealers. After the initial public offering, the public offering
price, concession and discount may be changed.
38
<PAGE>
[OTHER ALTERNATE SECTIONS FOR INTERNATIONAL PROSPECTUS]
The public offering price per share of Class A Common Stock and the
underwriting discount per share of Class A Common Stock are identical for both
Offerings.
The Company has granted to the International Underwriters and the U.S.
Underwriters options to purchase up to an aggregate of 255,000 and 1,020,000
shares of Class A Common Stock, respectively, at the initial public offering
price, less the underwriting discount. Such options, which will expire 30 days
after the date of this Prospectus, may be exercised solely to cover
over-allotments. To the extent that the Underwriters exercise such options, each
of the Underwriters will have a firm commitment, subject to certain conditions,
to purchase approximately the same percentage of the option shares that the
number of shares to be purchased initially by that Underwriter is of the
8,500,000 shares of Class A Common Stock initially purchased by the
Underwriters.
The Company has been informed that the Underwriters have entered into an
agreement (the "Intersyndicate Agreement") providing for the coordination of
their activities. Pursuant to the Intersyndicate Agreement, the International
Underwriters and the U.S. Underwriters are permitted to sell shares of Class A
Common Stock to each other.
The Company and the Principal Stockholders have each agreed not to sell or
grant any option for the sale of, or otherwise dispose of, any Common Stock, or
any securities convertible into or exchangeable or exercisable for shares of
Common Stock, other than the shares of Common Stock that may be offered by the
Company in the Offerings and certain other limited exceptions, and not to file
or request to be filed, as the case may be, any registration statement with
respect to Common Stock, for a period of 90 days after the date of this
Prospectus without the consent of the Representatives. In addition, the Lehman
Investors have each agreed not to effect any public sale or distribution of any
shares of Common Stock, or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, for a period of 90 days after the date
of this Prospectus without the consent of the Representatives.
The Company has been informed that, under the terms of the Intersyndicate
Agreement, the U.S. Underwriters and any dealer to whom they sell shares of
Class A Common Stock will not offer to sell or resell shares of Class A Common
Stock to persons who are non-U.S. or non-Canadian persons or to persons they
believe intend to resell to persons who are non-U.S. or non-Canadian persons,
and the International Underwriters and any bank, broker or dealer to whom they
sell shares of Class A Common Stock will not offer to resell shares of Class A
Common Stock to U.S. persons or to Canadian persons or to persons they believe
intend to resell to U.S. persons or to Canadian persons, except in the case of
transactions pursuant to the Intersyndicate Agreement which, among other things,
permits the Underwriters to purchase from each other and to offer to resell such
number of shares of Class A Common Stock as the selling Underwriter or
Underwriters and the purchasing Underwriter or Underwriters may agree.
Each Underwriter has represented and agreed that it has not offered or sold
and will not offer or sell any shares of Class A Common Stock to persons in the
United Kingdom prior to admission of the shares of Class A Common Stock to
listing in accordance with Part IV of the Financial Services Act 1986 (the
"Act") except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 or the
Act; it has complied and will comply with all applicable provisions of the Act
with respect to anything done by it in relation to the shares of Class A Common
Stock in, from or otherwise involving the United Kingdom; and it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the shares of Class A Common
Stock, other than any document which consists of or any part of listing
particulars, supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Act, to a
39
<PAGE>
[OTHER ALTERNATE SECTIONS FOR INTERNATIONAL PROSPECTUS]
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on.
Purchasers of the shares of Class A Common Stock offered hereby may be
required to pay stamp taxes and other charges in accordance with the laws and
practices of the country of purchase in addition to the offering price set forth
on the cover page hereof.
Alliance is an affiliate of Goldman, Sachs & Co. Upon consummation of the
Alliance Acquisition, Goldman, Sachs & Co. may be deemed to have received more
than 10% of the net proceeds of the Offerings. See "Use of Proceeds." The
Offerings are being made pursuant to the provisions of paragraph (8) of Article
III, Section 44 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD") regarding participation by an NASD member
in a public offering of an issuer's securities where more than 10% of the net
offering proceeds are intended to be paid to members participating in the
distribution or associated or affiliated persons of such members.
LEGAL MATTERS
The validity of the shares of Class A Common Stock being offered by this
Prospectus will be passed upon for the Company by Debevoise & Plimpton, 875
Third Avenue, New York, New York 10022. Certain legal matters will be passed
upon for the Underwriters by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 425 Lexington Avenue, New York, New York
10017.
EXPERTS
The consolidated financial statements and consolidated financial statement
schedule of Infinity Broadcasting Corporation and subsidiaries as of December
31, 1994 and 1993, and for each of the years in the three-year period ended
December 31, 1994, have been incorporated by reference herein and in the
registration statement in reliance on the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
To the extent that KPMG Peat Marwick LLP audits and reports on financial
statements of Infinity Broadcasting Corporation and subsidiaries issued at
future dates, and consents to the use of their report thereon, such financial
statements also will be incorporated by reference in the Registration Statement
in reliance upon their report and said authority.
The consolidated financial statements of Alliance Broadcasting, L.P. as of
December 31, 1993 and 1994 and for each of the three years in the period ended
December 31, 1994, incorporated herein and elsewhere in the Registration
Statement (as defined in "Available Information") by reference to the Form 8-K,
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048 and Citicorp
40
<PAGE>
[OTHER ALTERNATE SECTIONS FOR INTERNATIONAL PROSPECTUS]
Center, 14th Floor, Suite 1400, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. In addition, such reports, proxy
statements and other information can be inspected at the offices of The New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act with respect to the shares of Class A Common Stock offered
hereby. This Prospectus, which constitutes a part of the Registration Statement,
omits certain information contained in the Registration Statement as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the shares of Class A Common Stock offered hereby,
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such document filed as an
exhibit to the Registration Statement.
This Prospectus does not constitute an offer to sell or the solicitation of
an offer to buy the shares of Class A Common Stock offered hereby in any
jurisdiction in which such offer or solicitation is unlawful. There are
restrictions on the offer and sale of the shares of Class A Common Stock offered
hereby in the United Kingdom. All applicable provisions of the Act, the Public
Offers of Securities Regulations 1995, the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1995, the Companies Act 1985 and
any other applicable law, rule, regulation or order with respect to anything
done by any person in relation to the shares of Class A Common Stock offered
hereby in, from, or otherwise involving the United Kingdom must be compiled
with. See "Underwriting."
In this Prospectus, reference to "dollars," "U.S.$" and "$" are to United
States dollars.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
1. the Company's Annual Report on Form 10-K for the year ended December
31, 1994 (filed March 31, 1995);
2. the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995 (filed May 12, 1995);
3. the Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995 (filed August 14, 1995), as amended on August 15, 1995;
4. the Company's Current Report on Form 8-K (filed September 27, 1995);
and
5. the description of the Class A Common Stock in the Company's
Registration Statement on Form 8-A (filed January 24, 1992), as amended by
Amendment No. 1 thereto (filed January 29, 1992).
All documents or reports filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the Offerings described herein shall
41
<PAGE>
[OTHER ALTERNATE SECTIONS FOR INTERNATIONAL PROSPECTUS]
be deemed to be incorporated by reference into this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference (other than
exhibits not specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to: Infinity
Broadcasting Corporation, 600 Madison Avenue, New York, New York 10022,
Attention: Secretary's Office (telephone: (212) 750-6400).
42
<PAGE>
ALTERNATE BACK COVER FOR INTERNATIONAL PROSPECTUS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE CLASS A COMMON STOCK
IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN
THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
-------------------
TABLE OF CONTENTS
PAGE
----
Prospectus Summary.................... 3
Risk Factors.......................... 7
The Company........................... 10
Use of Proceeds....................... 14
Price Range of Common Stock and
Dividend Policy..................... 15
Capitalization........................ 16
Pro Forma Combined Financial
Statements.......................... 17
Summary Consolidated Financial
Information......................... 23
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 26
Principal Stockholders................ 30
Description of Capital Stock.......... 31
Shares Eligible for Future Sale....... 34
Certain U.S. Tax Considerations
Applicable to Non-U.S. Holders of
the Class A Common Stock............ 36
Underwriting.......................... 38
Legal Matters......................... 40
Experts............................... 40
Available Information................. 40
Incorporation of Certain Documents by
Reference........................... 41
8,500,000 SHARES
[INFINITY LOGO]
BROADCASTING
CORPORATION
CLASS A COMMON STOCK
-------------------
PROSPECTUS
-------------------
MERRILL LYNCH
INTERNATIONAL LIMITED
GOLDMAN SACHS
INTERNATIONAL
ALEX. BROWN & SONS
INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
, 1995
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred by the Company in connection
with the offering described in this Registration Statement. All amounts are
estimated except the registration, New York Stock Exchange listing and NASD
fees.
<TABLE>
<CAPTION>
<S> <C>
Registration fee................................................................. $111,233
New York Stock Exchange listing fee.............................................. 64,513
NASD fee......................................................................... 30,500
Printing costs for registration statement, prospectus, stock certificates and
related documents.............................................................. 100,000
Accounting fees and expenses..................................................... 80,000
Legal fees and expenses.......................................................... $175,000
Blue sky fees and expenses....................................................... 15,000
Transfer agent and registrar fees and expenses................................... 2,500
--------
Total...................................................................... $578,746
--------
--------
</TABLE>
ITEM 15. LNDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides in
regard to indemnification of directors and officers as follows:
145. Indemnification of Officers, Directors, Employees and Agents;
Insurance.
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
II-1
<PAGE>
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who were not parties to such action,
suit or proceeding even though less than a quorum, or (2) if there are no
such directors, or, if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect
II-2
<PAGE>
to any employee benefit plan; and references to "serving at the request of
the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services
by, such director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Article TEN of the Company's Restated Certificate of Incorporation
provides in regard to indemnification as follows:
The Corporation shall, to the extent required, and may, to the extent
permitted, by Section 145 of the General Corporation Law of Delaware, as
the same may be amended from time to time, indemnify and reimburse all
persons whom it may indemnify and reimburse pursuant thereto.
Article VI of the Company's Amended and Restated By-Laws provides in
regard to indemnification of directors and officers as follows:
SECTION 6.01. Actions, Suits or Proceedings Other Than by or in the
Right of the Corporation. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the corporation), by reason of the fact that he is or was or has
agreed to become a Director or officer, or is or was serving or has
agreed to serve at the request of the Corporation as a Director or
officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection
with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
SECTION 6.02. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was or has
agreed to become a Director or officer of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a
Director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by
him or on his behalf in connection with the defense or settlement of such
action or suit and any appeal therefrom, if he acted in good faith and in
a manner he
II-3
<PAGE>
reasonably believed to be in or not opposed to the best interests of the
Corporation except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for
such costs, charges and expenses which the Court of Chancery or such
other court shall deem proper.
SECTION 6.03. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this Article,
to the extent that a Director or officer of the Corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit
or proceeding referred to in Sections 6.01 or 6.02 of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified
against all costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in connection
therewith.
SECTION 6.04. Determination of Right to Indemnification. Any
indemnification under Sections 6.01 and 6.02 of this Article (unless
ordered by a court) shall be paid by the Corporation unless a
determination is made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders, that indemnification of the Director or officer is not
proper in the circumstances because he has not met the applicable
standard of conduct set forth in Sections 6.01 and 6.02 of this Article.
SECTION 6.05. Advance of Costs, Charges and Expenses. Costs, charges
and expenses (including attorneys' fees) incurred by a person referred to
in Sections 6.01 and 6.02 of this Article in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding;
provided, however, that the payment of such costs, charges and expenses
incurred by a Director or officer in his capacity as a Director or
officer (and not in any other capacity in which service was or is
rendered by such person while a Director or officer) in advance of the
final disposition of such action, suit or proceeding shall be made only
upon receipt of any undertaking by or on behalf of the Director or
officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such Director or officer is not entitled to
be indemnified by the Corporation as authorized in this Article. The
Board of Directors may, in the manner set forth above, and upon approval
of such Director or officer of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
SECTION 6.06. Procedure for Indemnification. Any indemnification
under Sections 6.01, 6.02 and 6.03, or advance of costs, charges and
expenses under Section 6.05 of this Article, shall be made promptly, and
in any event within 60 days, upon the written request of the Director or
officer. The right to indemnification or advances as granted by this
Article shall be enforceable by the Director or officer in any court of
competent jurisdiction, if the Corporation denies such request, in whole
or in part, or if no disposition thereof is made within 60 days. Such
person's costs and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 6.05
of this Article where the required undertaking, if any, has been received
by the Corporation)
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<PAGE>
that the claimant has not met the standard of conduct set forth in
Sections 6.01 or 6.02 of this Article, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 6.01 or 6.02 of this Article, nor the fact
that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that
the claimant has not met the applicable standard of conduct.
SECTION 6.07. Other Rights; Continuation of Right to Indemnification.
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which a person seeking indemnification
may be entitled under any law (common or statutory), provision of the
Certificate of Incorporation, other By-Law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding office or while employed by or acting as agent for the
Corporation, and shall continue as to a person who has ceased to be a
Director or officer and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be a contract
between the Corporation and each Director or officer of the Corporation
who serves or served in such capacity at any time while this Article is
in effect. Any repeal or modification of this Article or any repeal or
modification of relevant provisions of the Delaware General Corporation
Law or any other applicable laws shall not in any way diminish any rights
to indemnification of such Director or officer or the obligations of the
Corporation arising hereunder. The Corporation may also indemnify any and
all other persons whom it shall have power to indemnify under any
applicable law from time to time in effect to the extent authorized by
the Board of Directors and permitted by such law.
SECTION 6.08. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
Director or officer of the Corporation, or is or was serving at the
request of the Corporation as a Director or officer of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his
behalf in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article, provided
that such insurance is available on acceptable terms, which determination
shall be made by a vote of a majority of the entire Board of Directors.
SECTION 6.09. Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each
Director and officer of the Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated
and to the full extent permitted by applicable law.
SECTION 6.10. Definition. For purposes of this Article, the term
"corporation" shall include constituent corporations referred to in
Subsection (h) of Section 145 of the General Corporation Law of the State
of Delaware (or any similar provision of applicable law at the time in
effect).
II-5
<PAGE>
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides in regard to the limitation of liability of directors and officers as
follows:
(b) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section, the
certificate of incorporation may also contain any or all of the following
matters:
* * * *
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such provision shall
not eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of this Title, or
(iv) for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the liability
of a director for any act or omission occurring prior to the date when such
provision becomes effective. All references in this paragraph to a director
shall also be deemed to refer (x) to a member of the governing body of a
corporation which is not authorized to issue capital stock, and (y) to such
other person or persons, if any, who, pursuant to a provision of the
certificate of incorporation in accordance with subsection (a) of Section
141 of this title, exercise or perform any of the powers or duties otherwise
conferred or imposed upon the board of directors by this title.
Pursuant to specific authority granted by Section 102 of the General
Corporation Law of the State of Delaware, ARTICLE ELEVEN of the Company's
Restated Certificate of Incorporation provides in regard to the limitation of
liability of directors and officers as follows:
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director; provided, that nothing contained in this ARTICLE ELEVEN
shall eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a
director, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
This ARTICLE ELEVEN may not be amended or modified to increase the
liability of a director, or repealed, except upon the affirmative vote of
the holders of 75% or more of the outstanding Common Shares. No such
amendment, modification, or repeal shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to
such amendment, modification, or repeal.
The provisions of this ARTICLE ELEVEN shall not be deemed to limit or
preclude indemnification of a director by the Corporation for any liability
of a director that has not been eliminated by the provisions of this ARTICLE
ELEVEN.
The Company has executed indemnity agreements with Messrs. Wiener, Carrus,
Karmazin, Suleman, Lerman, Batkin and Sherman that require it to indemnify these
individuals for liabilities incurred by them because of an act or omission or
neglect or breach of duty committed while acting in the capacity of an officer
or director of the Company, to the full extent permitted by the laws of the
II-6
<PAGE>
State of Delaware. Certain actions, including acts for which indemnification is
found by a court to be illegal and contrary to public policy, are excluded from
the coverage of the agreements.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
<C> <S>
1.01 Form of U.S. Purchase Agreement.
1.02 Form of International Purchase Agreement.
2.01 Purchase Agreement, dated September 22, 1995, by and among each of the entities
identified in Schedule 1.0(a) thereto, Alliance Broadcasting, L.P., each of the
entities identified on Schedule 1.0(b) thereto, Infinity Broadcasting Corporation of
Los Angeles and Infinity Broadcasting Corporation. (This Exhibit can be found as
Exhibit 2(a) to the Company's Current Report on Form 8-K, filed September 27, 1995,
and is incorporated herein by reference.)
4.01 Restated Certificate of Incorporation of the Company, as amended October 22, 1993.
(This Exhibit can be found as Exhibit 3(a) to the Company's Report on Form 10-Q for
the quarter ended September 30, 1993 (File No. 0-14702) and is incorporated herein
by reference.)
4.02 Certificate of Amendment of the Restated Certificate of Incorporation of the
Company, dated August 8, 1995 and filed with the Commission on August 9, 1995. (This
Exhibit can be found as Exhibit 3(b) to the Company's Report on Form 10-Q for the
quarter ended June 30, 1995 (File No. 0-14702) and is incorporated herein by
reference.)
4.03 Amended and Restated By-Laws of the Company. (This Exhibit can be found as Exhibit
3(b) to the Company's Registration Statement on Forms S-1 and S-3 (Registration No.
33-46118) and is incorporated herein by reference.)
4.04 Amended and Restated Stockholders' Agreement, dated as of February 5, 1992, among
the Company, Michael A. Wiener, Gerald Carrus, Mel Karmazin and the Lehman
Investors. (This Exhibit can be found as Exhibit 4(j) to the Company's Registration
Statement on Forms S-1 and S-3 (Registration No. 33-46118) and is incorporated
herein by reference.)
4.05 Warrant Certificates, dated January 28, 1992, certifying that Shearson Lehman Hutton
Capital Partners II L.P. is the owner of warrants to purchase 3,550,424 shares of
Class C Common Stock, par value $.002 per share, of the Company. (This Exhibit can
be found as Exhibit 4(l) to the Company's Registration Statement on Forms S-1 and
S-3 (Registration No. 33-46118) and is incorporated herein by reference.)
4.06 Warrant Certificates, dated January 28, 1992, certifying that Lehman Brothers
Merchant Banking Portfolio Partnership L.P. is the owner of warrants to purchase
5,222,385 shares of Class C Common Stock, par value $.002 per share, of the Company.
(This Exhibit can be found as Exhibit 4(m) to the Company's Registration Statement
on Forms S-1 and S-3 (Registration No. 33-46118) and is incorporated herein by
reference.)
4.07 Warrant Certificates, dated December 14, 1993, certifying that Shearson Lehman
Hutton Offshore Investment Partnership L.P. is the owner of warrants to purchase
1,154,198 shares of Class C Common Stock, par value $.002 per share, of the Company.
(This Exhibit can be found as Exhibit 4(j) to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1993 (File No. 0-14702) and is
incorporated herein by reference.)
4.08 Warrant Certificates, dated December 14, 1993, certifying that Shearson Lehman
Hutton Offshore Investment Partnership Japan L.P. is the owner of warrants to
purchase 3,476,282 shares of Class C Common Stock, par value $0.002 per share, of
the Company. (This Exhibit can be found as Exhibit 4(k) to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1993 (File No. 0-14702)
and is incorporated herein by reference.)
4.09 Securities Exchange Agreement, dated as of January 28, 1992, among the Company and
the Lehman Investors. (This exhibit can be found as Exhibit 4(p) to the Company's
Registration Statement on Forms S-1 and S-3 (Registration No. 33-46118) and is
incorporated herein by reference.)
5.01 Opinion of Debevoise & Plimpton.
23.01 Consent of KPMG Peat Marwick LLP.
23.02 Consent of Price Waterhouse LLP.
23.03 Consent of Debevoise & Plimpton (included in Exhibit 5.01).
</TABLE>
II-7
<PAGE>
<TABLE>
<C> <S>
24.01 Powers of Attorney of certain officers and directors of the Company.+
</TABLE>
- ------------
+ Previously filed.
ITEM 17. UNDERTAKINGS.
(a) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purpose of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Acceleration of Effectiveness.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons, if any,
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person, if any, of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(c) Rule 430A.
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Infinity
Broadcasting Corporation (i) certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and (ii) has duly
caused this Amendment No. 2 to Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in The City of New York, State of
New York, on this 18th day of October, 1995.
INFINITY BROADCASTING CORPORATION
By /s/ MEL KARMAZIN
...................................
Mel Karmazin
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------ ------------------------------------ -----------------
<S> <C> <C>
* Chairman of the Board of Directors October 18, 1995
.................................... and Treasurer
Gerald Carrus
* Co-Chairman of the Board of October 18, 1995
.................................... Directors and Secretary
Michael A. Wiener
/s/ MEL KARMAZIN Director, President and Chief October 18, 1995
.................................... Executive Officer (principal
Mel Karmazin executive officer)
/s/ FARID SULEMAN Director, Vice President--Finance, October 18, 1995
.................................... and Chief Financial Officer
Farid Suleman (principal financial officer)
* Director October 18, 1995
....................................
Alan R. Batkin
* Director October 18, 1995
....................................
Steven A. Lerman
* Director October 18, 1995
....................................
Jeffrey Sherman
* Director October 18, 1995
....................................
James L. Singleton
* Director October 18, 1995
....................................
James A. Stern
</TABLE>
*By /s/ FARID SULEMAN
..................................
Farid Suleman
Attorney-in-fact
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- ------- ------------------------------------------------------------------------------ ----
<C> <S> <C>
1.01 Form of U.S. Purchase Agreement.
1.02 Form of International Purchase Agreement.
2.01 Purchase Agreement, dated September 22, 1995, by and among each of the
entities identified in Schedule 1.0(a) thereto, Alliance Broadcasting, L.P.,
each of the entities identified on Schedule 1.0(b) thereto, Infinity
Broadcasting Corporation of Los Angeles and Infinity Broadcasting Corporation.
(This Exhibit can be found as Exhibit 2(a) to the Company's Form 8-K, filed
September 27, 1995, and is incorporated herein by reference.)
4.01 Restated Certificate of Incorporation of the Company, as amended October 22,
1993. (This Exhibit can be found as Exhibit 3(a) to the Company's Report on
Form 10-Q for the quarter ended September 30, 1993 (File No. 0-14702) and is
incorporated herein by reference.)
4.02 Certificate of Amendment of the Restated Certificate of Incorporation of the
Company, dated August 8, 1995 and filed with the Commission on August 9, 1995.
(This Exhibit can be found as Exhibit 3(b) to the Company's Report on Form
10-Q for the quarter ended June 30, 1995 (File No. 0-14702) and is
incorporated herein by reference.)
4.03 Amended and Restated By-Laws of the Company. (This Exhibit can be found as
Exhibit 3(b) to the Company's Registration Statement on Forms S-1 and S-3
(Registration No. 33-46118) and is incorporated herein by reference.)
4.04 Amended and Restated Stockholders' Agreement, dated as of February 5, 1992,
among the Company, Michael A. Wiener, Gerald Carrus, Mel Karmazin and the
Lehman Investors. (This Exhibit can be found as Exhibit 4(j) to the Company's
Registration Statement on Forms S-1 and S-3 (Registration No. 33-46118) and is
incorporated herein by reference.)
4.05 Warrant Certificates, dated January 28, 1992, certifying that Shearson Lehman
Hutton Capital Partners II L.P. is the owner of warrants to purchase 3,550,424
shares of Class C Common Stock, par value $.002 per share, of the Company.
(This Exhibit can be found as Exhibit 4(l) to the Company's Registration
Statement on Forms S-1 and S-3 (Registration No. 33-46118) and is incorporated
herein by reference.)
4.06 Warrant Certificates, dated January 28, 1992, certifying that Lehman Brothers
Merchant Banking Portfolio Partnership L.P. is the owner of warrants to
purchase 5,222,385 shares of Class C Common Stock, par value $.002 per share,
of the Company. (This Exhibit can be found as Exhibit 4(m) to the Company's
Registration Statement on Forms S-1 and S-3 (Registration No. 33-46118) and is
incorporated herein by reference.)
4.07 Warrant Certificates, dated December 14, 1993, certifying that Shearson Lehman
Hutton Offshore Investment Partnership L.P. is the owner of warrants to
purchase 1,154,198 shares of Class C Common Stock, par value $.002 per share,
of the Company. (This Exhibit can be found as Exhibit 4(j) to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993 (File
No. 0-14702) and is incorporated herein by reference.)
4.08 Warrant Certificates, dated December 14, 1993, certifying that Shearson Lehman
Hutton Offshore Investment Partnership Japan L.P. is the owner of warrants to
purchase 3,476,282 shares of Class C Common Stock, par value $0.002 per share,
of the Company. (This Exhibit can be found as Exhibit 4(k) to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993 (File
No. 0-14702) and is incorporated herein by reference.)
4.09 Securities Exchange Agreement, dated as of January 28, 1992, among the Company
and the Lehman Investors. (This exhibit can be found as Exhibit 4(p) to the
Company's Registration Statement on Forms S-1 and S-3 (Registration No. 33-
46118 ) and is incorporated herein by reference.)
5.01 Opinion of Debevoise & Plimpton.
23.01 Consent of KPMG Peat Marwick LLP.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- ------- ------------------------------------------------------------------------------ ----
<C> <S> <C>
23.02 Consent of Price Waterhouse LLP.
23.03 Consent of Debevoise & Plimpton (included in Exhibit 5.01).
24.01 Powers of Attorney of certain officers and directors of the Company.+
</TABLE>
- ------------
+ Previously filed.
EXHIBIT 1.01
6,800,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
October __, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as U.S. Representatives of the several
U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Infinity Broadcasting Corporation, a Delaware
corporation (the "Company"), confirms its agreement with Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") and each of the other U.S. Underwriters named
in Schedule A hereto (collectively, the "U.S. Underwriters",
which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill
Lynch, Goldman, Sachs & Co., Alex. Brown & Sons Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation and Smith
Barney Inc. are acting as representatives (in such capacity,
Merrill Lynch, Goldman, Sachs & Co., Alex. Brown & Sons
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation
and Smith Barney Inc. shall hereinafter be referred to as the
"U.S. Representatives"), with respect to the sale by the Company
<PAGE>
and the purchase by the U.S. Underwriters, acting severally and
not jointly, of the respective numbers of shares of Class A
Common Stock, par value $.002 per share, of the Company ("Class A
Common Stock") set forth in said Schedule A, and with respect to
the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of 1,020,000 additional
shares of Class A Common Stock to cover over-allotments, if any.
The aforesaid 6,800,000 shares of Class A Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S.
Underwriters and all or any part of the 1,020,000 shares of Class
A Common Stock subject to the option described in Section 2(b)
hereof (the "U.S. Option Securities") are hereinafter called,
collectively, the "U.S. Securities".
It is understood that the Company is concurrently
entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by
the Company of an aggregate of 1,700,000 shares of Class A Common
Stock (the "Initial International Securities") through
arrangements with certain underwriters outside the United States
and Canada (the "International Managers") for which Merrill Lynch
International Limited, Goldman Sachs International, Alex. Brown &
Sons Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation and Smith Barney Inc. are acting as lead managers
(the "Lead Managers") and the grant by the Company to the
International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers'
pro rata portion of up to 255,000 additional shares of Class A
Common Stock solely to cover over-allotments, if any (the
"International Option Securities" and, together with the U.S.
Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities
are hereinafter called the "International Securities". It is
understood that the Company is not obligated to sell and the U.S.
Underwriters are not obligated to purchase, any Initial U.S.
Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers
are hereinafter collectively called the "Underwriters", the
Initial U.S. Securities and the Initial International Securities
are hereinafter collectively called the "Initial Securities", and
the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the
"Intersyndicate Agreement") providing for the coordination of
certain transactions among the Underwriters under the direction
of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
-2-
<PAGE>
Prior to the purchase and public offering of the U.S.
Securities by the several U.S. Underwriters, the Company and the
U.S. Representatives, acting on behalf of the several U.S.
Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "U.S. Pricing Agreement"). The
U.S. Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company
and the U.S. Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of
the U.S. Securities will be governed by this Agreement, as
supplemented by the U.S. Pricing Agreement. From and after the
date of the execution and delivery of the U.S. Pricing Agreement,
this Agreement shall be deemed to incorporate the U.S. Pricing
Agreement. The initial public offering price and the purchase
price with respect to the International Securities shall be set
forth in a separate instrument (the "International Pricing
Agreement"), the form of which is attached to the International
Purchase Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form
S-3 (No. 33-62711), which includes a related preliminary
prospectus, for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), has filed
such amendments thereto, if any, including such amended
preliminary prospectuses, as may have been required to the date
hereof, and will file such additional amendments thereto,
including such amended prospectuses, as may hereafter be
required. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to
the U.S. Securities (the "U.S. Prospectus") and one relating to
the International Securities (the "International Prospectus").
Such registration statement (as amended, if applicable) and the
U.S. Prospectus and the International Prospectus constituting a
part thereof (including in each case all documents incorporated
or deemed to be incorporated by reference therein and the
information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations")), as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise,
are hereinafter referred to as the "Registration Statement", the
"U.S. Prospectus" and the "International Prospectus",
respectively, and the U.S. and International Prospectuses are
hereinafter together called "Prospectuses" and, each
individually, a "Prospectus", except that if any revised
prospectus shall be provided to the U.S. Underwriters or the
International Managers by the Company for use in connection with
the offering of the Securities which differs from the
Prospectuses on file at the Commission at the time the
Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations), the terms
"U.S. Prospectus" and "International Prospectus" shall refer to
-3-
<PAGE>
each such revised prospectus from and after the time it is first
provided to the U.S. Underwriters or the International Managers,
as the case may be, for such use. All references in this
Agreement to financial statements and schedules and other
information which is "contained", "included" or "stated" in the
Registration Statement or the Prospectuses (and all other
references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectuses, as the case may be;
and all references in this Agreement to amendments or supplements
to the Registration Statement or the Prospectuses shall be deemed
to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectuses, as the case may be.
The Company understands that the U.S. Underwriters
propose to make a public offering of the U.S. Securities as soon
as the U.S. Representatives deem advisable after the Registration
Statement becomes effective and the U.S. Pricing Agreement has
been executed and delivered. The price per share for the
International Securities to be purchased by the International
Managers pursuant to the International Purchase Agreement shall
be identical to the price per share for the U.S. Securities to be
purchased by the U.S. Underwriters hereunder.
SECTION 1. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each U.S.
Underwriter as of the date hereof and as of the date of the U.S.
Pricing Agreement (such latter date being hereinafter referred to
as the "Representation Date") as follows:
(i) The Company meets the requirements for use of Form
S-3 under the 1933 Act, and at the respective times the
Registration Statement and any post-effective amendments
thereto become effective, the Registration Statement will
comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading. Each
preliminary prospectus, as of its date, and the U.S.
Prospectus, at the Representation Date (unless the term
"U.S. Prospectus" refers to a prospectus which has been
provided to the U.S. Underwriters by the Company for use in
connection with the offering of the U.S. Securities which
differs from the U.S. Prospectus on file at the Commission
at the time the Registration Statement first becomes
effective, in which case at the time such prospectus is
first provided to the U.S. Underwriters for such use) and at
Closing Time and each Date of Delivery referred to in
Section 2, will not include an untrue statement of a
material fact or omit to state a material fact necessary in
-4-
<PAGE>
order 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 subsection shall not apply to statements in or
omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any U.S.
Underwriter through the U.S. Representatives expressly for
use in the Registration Statement or Prospectus. For
purposes of this Section 1(a), all references to the
Registration Statement, any post-effective amendments
thereto and the Prospectuses shall be deemed to include,
without limitation, any electronically transmitted copies
thereof, including, without limitation, any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("EDGAR").
(ii) KPMG Peat Marwick LLP, whose report appears in the
Prospectuses or are incorporated by reference therein, are
independent public accountants with respect to the Company
as required by the 1933 Act and the 1933 Act Regulations.
Price Waterhouse LLP, whose report appears in the
Prospectuses or is incorporated by reference therein, are
independent public accountants with respect to Alliance
Broadcasting, L.P. as required by the 1933 Act and the 1933
Act Regulations.
(iii) The financial statements included or incorporated
by reference in the Registration Statement and the
Prospectuses, together with the related schedules and notes,
present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, changes
in stockholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified;
except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity
with accounting principles generally accepted in the United
States ("U.S. GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules,
if any, included in the Registration Statement present
fairly in all material respects in accordance with U.S. GAAP
the information required to be stated therein. The summary
financial data and the summary financial information in the
Prospectuses present fairly in all material respects the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements
incorporated by reference in the Registration Statement.
The pro forma combined financial statements and the related
notes thereto included in the Registration Statement and the
Prospectuses have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma
financial statements and the assumptions used in the
-5-
<PAGE>
preparation thereof are, in the Company's opinion,
reasonable.
(iv) Except as described in or contemplated by the
Registration Statement and the Prospectuses, there has not
been any change in the capital stock or long-term debt of
the Company or any material adverse change in, or any
development which materially and adversely affects, the
business, properties, financial condition or results of
operations of the Company or of the Company and its
subsidiaries taken as a whole, from the dates as of which
information is given in the Registration Statement and the
Prospectuses.
(v) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to
enter into and perform its obligations under this Agreement,
the U.S. Pricing Agreement, the International Purchase
Agreement and the International Pricing Agreement; the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of
New York; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business.
(vi) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business; all of the issued and
outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim,
except for liens created under the Second Amended and
Restated Security Agreement dated as of December 22, 1994
(as amended to the date hereof, the "Security Agreement"),
by and among the Company, each of the subsidiaries of the
Company identified therein and Chemical Bank, as collateral
agent. None of the subsidiaries of the Company other than
Hemisphere Broadcasting Corporation, Sagittarius
Broadcasting Corporation, Infinity Broadcasting Corporation
of California, Infinity Broadcasting Corporation of Chicago,
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Infinity Broadcasting Corporation of Illinois, Infinity
Broadcasting Corporation of Los Angeles, Infinity
Broadcasting Corporation of Maryland, Infinity Broadcasting
Corporation of New York and Infinity Broadcasting
Corporation of Texas is a "significant subsidiary" (as
defined in Rule 405 of the 1933 Act Regulations).
(vii) The authorized, issued and outstanding capital
stock of the Company at June 30, 1995 was as is set forth in
the Prospectuses in the column entitled "Actual" under the
caption "Capitalization"; and the shares of issued and
outstanding Class A Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable and
conform in all material respects to the description thereof
contained in the Prospectus. The Securities to be purchased
by the U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale
to the U.S. Underwriters pursuant to this Agreement and to
the International Managers pursuant to the International
Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against
payment of the consideration set forth in the U.S. Pricing
Agreement and the International Pricing Agreement,
respectively, will be validly issued and fully paid and
non-assessable; and the issuance of the Securities is not
subject to preemptive or other similar rights of any
securityholder of the Company arising by operation of law,
under the charter and by-laws of the Company or under any
agreement to which the Company or any of its subsidiaries is
a party.
(viii) Neither the Company nor any of its subsidiaries is
in violation of its charter or in default in the performance
or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, the
effect of which violation or default would be material to
the Company or the Company and its subsidiaries taken as a
whole; and the execution, delivery and performance of this
Agreement, the U.S. Pricing Agreement, the International
Purchase Agreement and the International Pricing Agreement,
the issuance and delivery of the Securities and the
consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or constitute
a default or Repayment Event (as defined below) under, or
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result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its
subsidiaries or any of their assets or properties, the
effect of which conflict, breach, default, Repayment Event,
lien, charge, encumbrance or violation, individually or in
the aggregate, is reasonably likely to have a material
adverse effect on the business, properties, financial
condition or results of operations of the Company or the
Company and its subsidiaries taken as a whole. As used
herein, a "Repayment Event" means any event or condition the
occurrence of which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(ix) Except as described in the Registration Statement
and the Prospectuses, there is no litigation or governmental
proceeding or investigation pending or, to the knowledge of
the Company, threatened against the Company or any of its
subsidiaries which (individually or in the aggregate) is
reasonably likely to have a material adverse effect on the
business, properties, financial condition or results of
operations of the Company or of the Company and its
subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement and the
Prospectuses.
(x) There are no contracts or documents which are
required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference
therein or to be filed as exhibits thereto by the 1933 Act,
the 1933 Act Regulations, the 1934 Act or the rules and
regulations of the Commission under the 1934 Act (the "1934
Act Regulations") which have not been so described and filed
as required.
(xi) No filing with, or authorization, approval,
consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering,
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<PAGE>
issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this
Agreement, the U.S. Pricing Agreement, the International
Purchase Agreement and the International Pricing Agreement
except such as have been already obtained or as may be
required under the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Act Regulations or state or other
securities laws.
(xii) Each of the Company and its subsidiaries holds
good and marketable title to, or valid and enforceable
leasehold interests in, all items of real and personal
property which are material to the business of the Company
or the Company and its subsidiaries taken as a whole, free
and clear of any lien, claim, encumbrance, preemptive rights
or any other claim of any third party which might materially
interfere with the conduct of the business of the Company or
the Company and its subsidiaries taken as a whole, except
for liens created under the Security Agreement.
(xiii) The Company and each of its subsidiaries have all
power and authority, and, except as described in the
Registration Statement, possess all necessary
authorizations, approvals, orders, licenses, franchises,
certificates and permits of and from all foreign and
domestic governmental regulatory officials and bodies
(including the Federal Communications Commission ("FCC")) to
own or hold their respective properties and to conduct the
respective businesses in which they are engaged, except
those authorizations, approvals, orders, licenses,
franchises, certificates and permits which the failure to
possess would not have a material adverse effect on the
business, properties, financial condition or results of
operations of the Company or the Company and its
subsidiaries taken as a whole (the "Excluded
Authorizations"). Except as described in the Registration
Statement and the Prospectuses, each such authorization,
approval, order, license, franchise, certificate and permit,
other than the Excluded Authorizations, is valid and in full
force and effect and there is no proceeding pending or, to
the best knowledge of the Company, threatened which is
reasonably likely to lead to the revocation, termination,
suspension or non-renewal of any such authorization,
approval, order, license, franchise, certificate or permit,
other than any Excluded Authorizations. The Company is in
material compliance with all applicable laws, rules and
regulations.
(xiv) Each of the Company and its subsidiaries carries
insurance in such amounts and covering such risks as, in the
Company's opinion, is adequate for the conduct of their
respective businesses and the value of their respective
property, plants and equipment and such insurance is in full
force and effect.
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<PAGE>
(xv) This Agreement and the International Purchase
Agreement have been and, on the Representation Date, the
U.S. Pricing Agreement and the International Pricing
Agreement will have been, duly authorized, executed and
delivered by the Company.
(xvi) Other than as described in the Prospectuses, there
are no holders of securities of the Company who, by reason
of the filing of the Registration Statement under the 1933
Act or the execution by the Company of this Agreement, have
the right to request or demand that the Company register
under the 1933 Act securities held by them.
(xvii) The Company has complied with, and is and will be
in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the
rules and regulations thereunder (collectively, the "Cuba
Act"), or is exempt therefrom.
(xviii) The Company is not, and upon the issuance and sale
of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the
Prospectuses under the caption "Use of Proceeds" will not
be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xix) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations.
(xx) The Company has not taken, and agrees that it will
not take, directly or indirectly, any action that might
reasonably be expected to cause or result in stabilization
or manipulation of the price of any security to facilitate
the sale or resale of the Securities.
(xxi) The Company has obtained and delivered to the
Global Coordinator the agreements of the Principal
Stockholders (as defined in the Registration Statement) and
Zena Wiener to the effect that each such person will not,
for a period of 90 days from the date hereof and except as
otherwise provided therein, without the Global Coordinator's
prior written consent directly or indirectly, sell, grant
any option for the sale of, or otherwise dispose of, any
shares of Class A Common Stock or any securities convertible
into or exercisable for Class A Common Stock owned by such
person or entity or with respect to which such person has
the power of disposition, or request the filing of any
registration statement under the 1933 Act with respect to
any of the foregoing.
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<PAGE>
(b) Any certificate signed by any officer of the
Company and delivered to the Global Coordinator, U.S.
Representatives or to counsel for the U.S. Underwriters pursuant
to Section 5 shall be deemed a representation and warranty by the
Company to each U.S. Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters;
---------------------------------------
Closing.
-------
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each U.S. Underwriter,
severally and not jointly, and each U.S. Underwriter, severally
and not jointly, agrees to purchase from the Company, at the
price per share set forth in the U.S. Pricing Agreement, the
number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter (except as otherwise
provided in the U.S. Pricing Agreement), plus any additional
number of Initial U.S. Securities which such U.S. Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(1) If the Company has elected not to rely upon Rule
430A under the 1933 Act Regulations, the initial public
offering price and the purchase price per share to be paid
by the several U.S. Underwriters for the Securities have
each been determined and set forth in the U.S. Pricing
Agreement, dated the date hereof, and an amendment to the
Registration Statement, including the Prospectuses contained
therein, will be filed before the Registration Statement
becomes effective.
(2) If the Company has elected to rely upon Rule 430A
under the 1933 Act Regulations, the initial public offering
price and the purchase price per share to be paid by the
several U.S. Underwriters for the Securities shall be
determined by agreement between the U.S. Representatives and
the Company and, when so determined, shall be set forth in
the U.S Pricing Agreement. In the event that such prices
have not been agreed upon and the U.S. Pricing Agreement has
not been executed and delivered by all parties thereto by
the close of business on the fourteenth business day
following the date of this Agreement, this Agreement shall
terminate forthwith, without liability of any party to any
other party, unless otherwise agreed to by the Company and
the U.S. Representatives, except that Sections 6 and 7 shall
remain in effect. For purposes of this Agreement, the term
"business day" means a day on which the New York Stock
Exchange is open for business and the trading of securities
thereon is permitted.
(b) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and
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<PAGE>
conditions herein set forth, the Company hereby grants an option
to the U.S. Underwriters, severally and not jointly, to purchase
up to an additional 1,020,000 shares of Class A Common Stock at
the purchase price per share set forth in the U.S. Pricing
Agreement. The option hereby granted will expire 30 days after
(i) the date the Registration Statement becomes effective, if the
Company has elected not to rely on Rule 430A under the 1933 Act
Regulations, or (ii) the Representation Date, if the Company has
elected to rely on Rule 430A under the 1933 Act Regulations, and
may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S.
Securities upon notice by the Global Coordinator to the Company
setting forth the number of U.S. Option Securities as to which
the several U.S. Underwriters are then exercising the option and
the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for the U.S.
Option Securities (a "Date of Delivery") shall be determined by
the Global Coordinator, but shall not be later than seven full
business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined, unless
otherwise agreed by the Global Coordinator and the Company. If
the option is exercised as to all or any portion of the U.S.
Option Securities, each of the U.S. Underwriters, acting
severally and not jointly, will purchase that proportion of the
total number of U.S. Option Securities then being purchased which
the number of Initial U.S. Securities set forth in Schedule A
opposite the name of such U.S. Underwriter bears to the total
number of Initial U.S. Securities (except as otherwise provided
in the U.S. Pricing Agreement), subject in each case to such
adjustments as the Global Coordinator in its discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial U.S. Securities shall be made at
the office of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York 10017, or at such other place as shall be
agreed upon by the Global Coordinator and the Company, at 10:00
A.M. on the third business day (unless postponed in accordance
with the provisions of Section 10) following the date the
Registration Statement becomes effective (or, if the Company has
elected to rely upon Rule 430A of the 1933 Act Regulations, the
third business day after execution of the U.S. Pricing
Agreement), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator
and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that
any or all of the U.S. Option Securities are purchased by the
U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall
be made at the above-mentioned offices of Simpson Thacher &
Bartlett, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as
specified in the notice from the Global Coordinator to the
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<PAGE>
Company. Payment shall be made to the Company by certified or
official bank check or checks drawn in next day funds payable to
the order of the Company, against delivery to the U.S.
Representatives for the respective accounts of the U.S.
Underwriters of certificates for the Securities to be purchased
by them. Certificates for the Initial U.S. Securities and the
U.S. Option Securities, if any, shall be in such denominations
and registered in such names as the U.S. Representatives may
request in writing at least two business days before the Closing
Time or the relevant Date of Delivery, as the case may be. It is
understood that each U.S. Underwriter has authorized the U.S.
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has
agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial
Securities or the U.S. Option Securities, if any, to be purchased
by any U.S. Underwriter whose check has not been received by the
Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder. The certificates for the Initial
Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S.
Representatives in The City of New York not later than 10:00 A.M.
on the last business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company
------------------------
covenants with each U.S. Underwriter as follows:
(a) The Company will notify the Global Coordinator
promptly (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall
become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional
information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
purposes. The Company will make every reasonable effort, if any
stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will give the Global Coordinator
notice of its intention to file any amendment to the Registration
Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise (including any revised
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<PAGE>
prospectus which the Company proposes for use by the U.S.
Underwriters in connection with the offering of the Securities
which differ from the U.S. Prospectus on file at the Commission
at the time the Registration Statement first becomes effective,
whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will
furnish the Global Coordinator 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 will not file any such
amendment or supplement or use any such prospectus to which the
Global Coordinator or U.S. counsel for the Underwriters shall not
have consented (which consent shall not be unreasonably
withheld).
(c) The Company has furnished or will deliver to the
U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of
experts, and will also deliver to the U.S. Representatives a
conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
U.S. Underwriters.
(d) The Company will deliver to each U.S. Underwriter,
without charge, from time to time until the effective date of the
Registration Statement (or, if the Company has elected to rely
upon Rule 430A, until such time as the U.S. Pricing Agreement is
executed and delivered), as many copies of each preliminary
prospectus as such U.S. Underwriter may reasonably request, and
the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to
each U.S. Underwriter, without charge prior to the expiration of
nine months after the effective date of the Registration
Statement and thereafter at the U.S. Underwriters' expense, from
time to time during the period when the U.S. Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission
thereunder.
(e) If the delivery of a prospectus is required at any
time that any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of U.S. counsel
for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the U.S. Prospectus
in order that the Prospectuses will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is
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<PAGE>
delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the U.S. Prospectus
in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the U.S.
Prospectus comply with such requirements, and the Company will
furnish to the U.S. Underwriters such number of copies of such
amendment or supplement as the U.S. Underwriters may reasonably
request (but at the expense of the U.S. Underwriters at any time
nine months or more after the effective date of the Registration
Statement) in connection with the offering or sale of the U.S.
Securities.
(f) If, at the time that the Registration Statement
becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations,
then promptly following the execution of the U.S. Pricing
Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended
U.S. Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including
an amended U.S. Prospectus), containing all information so
omitted and will use every reasonable effort to cause such post-
effective amendment to be declared effective as promptly as
practicable.
(g) The Company will endeavor, in cooperation with the
U.S. Underwriters, to qualify the U.S. Securities for offering
and sale under the applicable securities laws of such states as
the Global Coordinator may reasonably request and to maintain
such qualifications in effect for a period of not less than nine
months from the effective date of the Registration Statement (but
in any event no later than the date the distribution of the U.S.
Securities has been completed); provided, however, that the
Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the U.S Securities have
been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less
than nine months from the effective date of the Registration
Statement (but in any event no later than the date the
distribution of the U.S. Securities has been completed).
(h) The Company will make generally available to its
security holders as soon as practicable an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
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Regulations and which need not be audited) covering a twelve
month period beginning on the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(i) For a period of five years from the effective date
of the Registration Statement, the Company will furnish to the
U.S. Representatives copies of all public reports and all reports
and financial statements furnished by the Company to the New York
Stock Exchange or any other principal national securities
exchange upon which its Class A Common Stock may be listed
pursuant to requirements of or agreements with such exchange or
to the Commission pursuant to the 1934 Act or any rule or
regulation of the Commission thereunder.
(j) The Company will endeavor to effect the listing of
the Securities on the New York Stock Exchange and will endeavor
to maintain the listing of the Class A Common Stock on the New
York Stock Exchange and will take such action as may be
reasonably necessary to comply with the rules and regulations of
the Exchange in respect of the Class A Common Stock.
(k) During a period of 90 days from the date of the
U.S. Pricing Agreement, the Company (i) will not, without the
prior written consent of Merrill Lynch, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Class A Common Stock or any securities
convertible into or exchangeable or exercisable for Class A
Common Stock (except for Class A Common Stock issued or options
granted pursuant to this Agreement, pursuant to employee benefit
plans, deferred share plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or
pursuant to the exercise of currently outstanding convertible
securities, warrants or options) or file any registration
statement under the 1933 Act with respect to any of the foregoing
and (ii) will enforce its rights against each of the Lehman
Investors (as defined in the Registration Statement) under that
certain letter agreement dated September 15, 1995 and will not
waive compliance by the Lehman Investors with the provisions
thereof without the prior written consent of Merrill Lynch.
(l) The Company, during the period when a prospectus
is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company will pay
-------------------
all expenses incident to the performance of its obligations under
this Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the production and copying of this Agreement, the
U.S. Pricing Agreement, any Agreement among Underwriters and such
other documents as may be reasonably required in connection with
the offering, purchase, sale and delivery of the U.S. Securities,
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(iii) the preparation, issuance and delivery of the certificates
for the U.S. Securities to the U.S. Underwriters, including any
capital duties, stamp duties and stock or other transfer taxes
payable upon the sale of the U.S. Securities to the U.S.
Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of
the U.S. Securities under state securities laws in accordance
with the provisions of Section 3(g) hereof, including filing fees
and the fees and disbursements of counsel for the U.S.
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto,
(vi) the printing and delivery to the U.S. Underwriters of copies
of each preliminary prospectus and of the U.S. Prospectus and
any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the U.S. Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the U.S.
Securities, (ix) the filing fees incident to the review by the
National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Securities, and (x) the fees and
expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange; provided that, except
--------
as provided in this Section 4 and Section 6, the U.S.
Underwriters shall pay their own costs and expenses, including
the fees and expenses of their counsel, any transfer or other
taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the U.S.
Underwriters.
If this Agreement is terminated by the Global
Coordinator in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the U.S.
Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of U.S. counsel
for the Underwriters, as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the
U.S. Securities.
SECTION 5. Conditions of U.S. Underwriters'
--------------------------------
Obligations. The obligations of the several U.S. Underwriters
-----------
hereunder are subject to the accuracy of the representations and
warranties of the Company herein contained, to the performance by
the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M. on the date hereof, or with
the consent of the Global Coordinator, at a later time and date,
not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time and date as may
be approved by a majority in interest of the several U.S.
Underwriters; and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or
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threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied
with to the reasonable satisfaction of U.S. counsel to the
Underwriters. If the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the price of the Securities and any
price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing in accordance with Rule
424(b) of the 1933 Act Regulations within the prescribed time
period and prior to Closing Time the Company shall have provided
evidence satisfactory to the Global Coordinator of such timely
filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the 1933 Act
Regulations.
(b) At Closing Time the U.S. Representatives shall
have received:
(i) The favorable opinion, dated as of Closing Time,
of Debevoise & Plimpton, special counsel for the Company, to
the effect that:
(1) The Company and each of its Significant
Subsidiaries have been duly incorporated and are
validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as
foreign corporations in the jurisdictions identified by
such counsel; all outstanding shares of capital stock
of the subsidiaries of the Company are owned by the
Company directly, or indirectly through wholly owned
subsidiaries, subject to the lien created under the
Security Agreement; the Company and each of its
Significant Subsidiaries have all corporate power and
authority necessary to own or hold their respective
properties and to conduct their respective businesses
as described in the Prospectuses;
(2) Except as described in the Prospectuses
(including the documents incorporated by reference
therein), there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any shares of the Class A
Common Stock pursuant to the Company's Restated
Certificate of Incorporation, as amended, or Amended
and Restated By-laws, each as in effect on the date of
such opinion, or any agreement or other outstanding
instrument to which the Company is a party known to
such counsel, except for restrictions arising under the
Amended and Restated Stockholders' Agreement dated as
of February 5, 1992;
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(3) The Securities to be purchased by the U.S.
Underwriters and the International Managers from the
Company have been duly authorized for issuance and sale
to the U.S. Underwriters pursuant to this Agreement and
the U.S. Pricing Agreement and to the International
Managers pursuant to the International Purchase
Agreement and the International Pricing Agreement,
respectively, and, when issued and delivered by the
Company and upon payment therefor by the U.S.
Underwriters and the International Managers pursuant to
this Agreement and the U.S. Pricing Agreement and the
International Purchase Agreement and the International
Pricing Agreement, respectively, will be validly issued
and fully paid and non-assessable; the Class A Common
Stock conforms in all material respects as to legal
matters to the description of the Class A Common Stock
of the Company contained in the Prospectuses under the
caption "Description of Capital Stock"; the authorized
capital stock of the Company and, to the belief of such
counsel based on the review and other procedures
referred to in the penultimate paragraph of this
Section 5(b)(i) and subject to such paragraph, the
outstanding shares of capital stock of the Company as
of the respective dates set forth in the Prospectuses
were as set forth in the Prospectuses; and the
statements made in the Prospectuses under the caption
"Description of Capital Stock," insofar as they purport
to summarize the terms of the Company's capital stock
(including the Class A Common Stock), fairly present in
all material respects the information called for with
respect thereto by the 1933 Act Regulations;
(4) The Registration Statement was declared
effective under the Act as of the date and time
specified in such opinion, the Prospectuses were filed
with the Commission pursuant to the subparagraph of
Rule 424(b) of the 1933 Act Regulations specified in
such opinion on the date specified therein and, to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or
threatened by the Commission;
(5) The Registration Statement and the
Prospectuses (except that no opinion need be expressed
as to the financial statements and other financial and
statistical information contained therein) comply as to
form in all material respects with the requirements of
the Act and the 1933 Act Regulations; and the documents
incorporated by reference in the Prospectuses (except
that no opinion need be expressed as to the financial
statements and other financial and statistical
information contained therein), when they were filed
with the Commission, complied as to form in all
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material respects with the requirements of the 1934 Act
and the 1934 Act Regulations;
(6) Such counsel does not know of any litigation
or any governmental proceeding, inquiry or
investigation pending or threatened against the Company
or any of its subsidiaries (other than any litigation
or governmental proceeding, inquiry or investigation
under the Communications Act of 1934, as amended (the
"Communications Act") or the rules and regulations of
the FCC, as to which such counsel need express no
opinion) which (individually or in the aggregate) is
reasonably likely to have a material adverse effect on
the Company and its subsidiaries taken as a whole, or
adversely affect the consummation of this Agreement,
the U.S. Pricing Agreement, the International Purchase
Agreement and the International Pricing Agreement or
the performance by the Company of its obligations
hereunder or thereunder;
(7) Such counsel does not know of any contracts
or other documents which are required to be filed as
exhibits to the Registration Statement by the 1933 Act
or the 1933 Act Regulations which have not been filed
as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the
1933 Act Regulations;
(8) To such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries is in
violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or
instrument (except, in the case of any such material
agreement, indenture or instrument, for any such
violation or default which would not have a material
adverse effect on the Company and its subsidiaries
taken as a whole);
(9) The Company has all necessary corporate power
and authority to execute and deliver this Agreement and
to perform its obligations hereunder;
(10) This Agreement has been duly authorized,
executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by
the Company will not conflict with, or result in the
creation or imposition of any lien, claim, encumbrance,
preemptive rights or any claim of any third party upon
any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a
material default under, any agreement, indenture or
instrument listed as an exhibit to the Registration
Statement to which the Company or any of its
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<PAGE>
subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its
subsidiaries is subject, except where such conflict,
lien, claim, encumbrance, preemptive right, third party
claim or default would not have a material adverse
effect on the Company and its subsidiaries taken as a
whole, or result in a violation of the corporate
charter or by-laws of the Company or any of its
subsidiaries or, to such counsel's knowledge, any
material order, rule or regulation of any court or
governmental agency having jurisdiction over the
Company, any of its subsidiaries or their property
(except that such counsel need not express any opinion
as to the provisions relating to indemnity and
contribution or as to any order, rule or regulation of
the FCC); and no consent, authorization or order of, or
filing or registration with, any court or governmental
agency is required for the execution, delivery and
performance of this Agreement by the Company, except
such as may be required by the 1933 Act, the 1934 Act,
the Communications Act or state securities laws, or
except where the failure to obtain such consent,
authorization or order, or to effect such filing or
registration, would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
and
(11) Neither the Company nor any of its
subsidiaries is an "investment company" within the
meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder.
Such counsel shall have stated that, while they have
not themselves checked the accuracy and completeness of or
otherwise verified, and are not passing upon and assume no
responsibility for the accuracy or completeness of, the
statements contained in the Registration Statement or the
Prospectuses, except to the limited extent stated in
paragraph (3) above, in the course of their review and
discussion of the contents of the Registration Statement and
Prospectuses with certain officers and employees of the
Company and its independent accountants, but without
independent check or verification, no facts have come to
their attention which cause them to believe that the
Registration Statement (other than the financial statements
and other financial and statistical information contained
therein, as to which they need express no belief) at the
time the Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements contained therein not misleading, or
that the Prospectuses (other than the financial statements
and other financial and statistical information contained
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therein, as to which they need express no belief), as of
their dates and as of the Closing Time, contain any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in
the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent they deem proper, on
certificates of officers of the Company and public
officials. In rendering the opinion set forth in paragraph
(1) above concerning the corporate power and authority of
each of the Significant Subsidiaries, such counsel may
assume that the relevant laws of jurisdictions other than
New York and Delaware do not differ materially from the
corresponding laws of the State of New York or the General
Corporation Law of the State of Delaware, and in rendering
the opinion set forth in such paragraph concerning the
ownership of the outstanding shares of capital stock of the
subsidiaries of the Company, such counsel may rely
exclusively upon a review of the stock transfer records for
each such subsidiary and a certificate of an officer of the
Company. In rendering the opinion set forth in paragraph
(4) above, such counsel may rely exclusively on telephone
advice received from the staff of the Commission. In
rendering the opinion set forth in paragraph (6) above, such
counsel may rely exclusively upon discussions with attorneys
at Debevoise & Plimpton who work on the matters with respect
to which such firm has represented the Company and upon a
certificate of an officer of the Company. In rendering the
opinion set forth in paragraph (7) above as to the filing of
all contracts or other documents which are required to be
filed by the 1933 Act or the 1933 Act Regulations, such
counsel may, as to factual matters, rely on a certificate of
an officer of the Company.
(ii) Leventhal, Senter & Lerman, as special FCC counsel
to the Company, shall have furnished to the U.S.
Representatives their opinion addressed to the Underwriters
and dated as of the Closing Time to the effect that with
respect to matters arising under the Communications Act and
the rules and regulations of the FCC:
(1) No approval is required under the
Communications Act or the rules and regulations of the
FCC in connection with the issuance and sale of the
Class A Common Stock;
(2) The Company and its subsidiaries have such
authorizations, approvals, orders, licenses,
franchises, certificates and permits appropriate or
necessary under the Communications Act and the rules
and regulations of the FCC to conduct their
broadcasting business, and such authorizations,
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<PAGE>
approvals, orders, licenses, franchises, certificates
and permits contain no burdensome restrictions not
adequately described in the Prospectus, and the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (the "1994 Form 10-K") and Quarterly
Report on Form 10-Q for the quarterly period ended June
30, 1995 (the "June 30 Form 10-Q"), each incorporated
by reference in the Prospectus, that would materially
adversely affect the Company's broadcasting business as
presently conducted;
(3) The execution, delivery and performance of
this Agreement by the Company do not and will not
violate the Communications Act or the rules and
regulations of the FCC;
(4) Such counsel does not know of any litigation,
governmental proceeding or investigation under the
Communications Act or the rules and regulations of the
FCC against or involving the Company or its
subsidiaries or the radio station properties,
authorizations, approvals, orders, licenses,
franchises, certificates and permits owned or held by
the Company or its subsidiaries that would materially
adversely affect the Company's broadcasting business as
presently conducted that is not disclosed in the
Prospectuses, and the 1994 Form 10-K and the June 30
Form 10-Q incorporated by reference in the
Prospectuses; and
(5) The statements made under the caption
"Business--General--Federal Regulation of Radio
Broadcasting" in the 1994 Form 10-K, incorporated by
reference in the Prospectuses, and under the captions
"Risk Factors -- Regulatory Matters", "The Company --
Recent Developments -- Telecommunications Bills", "--
FCC Settlement; Assignment Applications" and
"Description of Capital Stock--Foreign Ownership" in
the Prospectuses, taken together, insofar as they are,
or refer to, statements of law, legal conclusions or
summaries relating to the Communications Act or the
rules and regulations of the FCC, fairly reflect the
provisions purported to be summarized as material to
the Company and are in all material respects correct;
and such counsel has no reason to believe that such
statements as of the Effective Date and as of Closing
Time or a Date of Delivery, as the case may be, contain
any untrue statement of a material fact or omit to
state a material fact necessary to make such
statements, in light of the circumstances under which
they were made, not misleading.
In rendering the opinion set forth in paragraph (5)
above concerning the statements made under the caption
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<PAGE>
"Business--General--Federal Regulation of Radio
Broadcasting" in the 1994 Form 10-K, incorporated by
reference in the Prospectuses, and under the captions "Risk
Factors -- Regulatory Matters", "The Company -- Recent
Developments -- Telecommunications Bills", "-- FCC
Settlement; Assignment Applications" and "Description of
Capital Stock--Foreign Ownership" in the Prospectuses, such
counsel may, as to factual matters relating to the ownership
interests of the Lehman Investors, rely solely upon
representations furnished to such counsel in writing by the
Lehman Investors.
(iii) The favorable opinion, dated as of Closing Time,
of Simpson Thacher & Bartlett, U.S. counsel for the
Underwriters, to the effect that:
(1) The Company has been duly incorporated and is
validly existing and in good standing as a corporation
under the laws of the State of Delaware;
(2) The shares of Class A Common Stock to be sold
by the Company have been duly authorized by the Company
and, upon payment and delivery in accordance with this
Agreement, the U.S. Pricing Agreement, the
International Purchase Agreement and the International
Pricing Agreement, will be validly issued, fully paid
and nonassessable;
(3) The statements made in the Prospectuses under
the caption "Description of Capital Stock", insofar as
they purport to constitute summaries of the terms of
the Company's Class A Common Stock, constitute accurate
summaries of the terms of such Class A Common Stock in
all material respects; and
(4) The U.S. Purchase Agreement and the
International Purchase Agreement have been duly
authorized, executed and delivered by the Company.
Such counsel shall have stated that, while they have
not independently verified the accuracy, completeness or
fairness of the statements made or included in the
Registration Statement, the Prospectuses or the documents
incorporated, or deemed to be incorporated, by reference
therein, and take no responsibility therefor, except as set
forth in paragraph (3) above, in the course of the
preparation by the Company of the Registration Statement and
the Prospectuses, they participated in conferences with
certain officers and employees of the Company, with
representatives of KPMG Peat Marwick and with counsel to the
Company. Such counsel shall, based upon their examination
of the Registration Statement, the Prospectuses and the
documents incorporated by reference therein, their
investigations made in connection with the preparation of
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<PAGE>
the Registration Statement and the Prospectuses and their
participation in the conferences referred to above, state
that (i) they are of the opinion that the Registration
Statement, as of its effective date, and the Prospectuses,
as of the date thereof, complied as to form in all material
respects with the requirements of the 1933 Act and the
applicable rules and regulations of the Commission
thereunder and that the documents incorporated by reference
therein complied as to form when filed in all material
respects with the requirements of the 1934 Act and the
applicable rules and regulations of the Commission
thereunder (except such counsel need express no belief as to
the financial statements or other financial data contained
therein), and (ii) they have no reason to believe that the
Registration Statement, as of its effective date (including
the 1934 Act documents on file with the Commission on such
effective date), contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectuses
(including the documents incorporated by reference therein),
as of the date of this Agreement and as of the Closing Time,
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) At Closing Time, (i) neither the Company nor any
of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectuses any loss or interference with its
business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectuses and (ii) since the
respective dates as of which information is given in the
Prospectuses there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a
prospective change, in or affecting the business, properties,
financial condition, results of operations or prospects of the
Company or the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectuses,
the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Global Coordinator, so material
and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities at the
Closing Time on the terms and in the manner contemplated in the
Prospectuses. The U.S. Representatives shall have received a
certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (A) the
representations and warranties in Section 1 hereof are true and
correct in all material respects as of the Closing Time with the
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same force and effect as though expressly made at and as of
Closing Time, (B) the Company has complied in all material
respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (C) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened
by the Commission. As used in this Section 5(c) the term "U.S.
Prospectus" means the U.S. Prospectus in the form first used by
the U.S. Underwriters to confirm sales of the U.S. Securities.
(d) The Company shall have furnished to the U.S.
Representatives a letter of KPMG Peat Marwick LLP and a letter of
Price Waterhouse LLP addressed to the Underwriters and dated the
Closing Time, confirming that they are independent public
accountants within the meaning of the Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
and stating, as of Closing Time (or, with respect to matters
involving changes or developments since the respective dates as
of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the
date of such letter), the conclusions and findings of such firm
with respect to the financial information and other matters
covered by its letter delivered to the U.S. Representatives
concurrently with the execution of this Agreement and confirming
in all material respects the conclusions and findings set forth
in such prior letter.
(e) At the Closing Time the Securities shall have been
approved for listing on the New York Stock Exchange, subject only
to official notice of issuance, and the NASD shall have approved
in writing the U.S. Underwriters' participation in the
distribution of the U.S. Securities and such approval shall not
have been withdrawn or limited.
(f) At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in
the form of Exhibit B hereto signed by the Principal Stockholders
and Zena Wiener.
(g) At Closing Time and at each Date of Delivery U.S.
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and
substance to the U.S. Representatives and U.S. counsel for the
Underwriters.
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(h) The closing under the International Purchase
Agreement shall have occurred concurrently with the closing
hereunder at Closing Time.
(i) In the event that the U.S. Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or
any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements
in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the U.S. Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing
Time pursuant to Section 5(c) hereof remains true and
correct in all material respects as of such Date of
Delivery.
(2) The favorable opinion of Debevoise & Plimpton,
special counsel for the Company, together with the favorable
opinion of Leventhal, Senter & Lerman, special FCC counsel
for the Company, each in form and substance reasonably
satisfactory to U.S. counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by
Sections 5(b)(1) and 5(b)(2) hereof.
(3) The favorable opinion of Simpson Thacher &
Bartlett, U.S. counsel for the Underwriters, dated such Date
of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(b)(3) hereof.
(4) A letter from KPMG Peat Marwick LLP and a letter
of Price Waterhouse LLP, in form and substance reasonably
satisfactory to the U.S. Representatives and dated such Date
of Delivery, substantially the same in form and substance as
the letter furnished to the U.S. Representatives pursuant to
Section 5(d) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date
not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the U.S. Representatives by notice
to the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 6
and 7 shall survive any such termination and remain in full force
and effect.
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SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless
each U.S. Underwriter and each person, if any, who controls any
U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including the information deemed to be
part of the Registration Statement pursuant to Rule 430A(b)
of the 1933 Act Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus,
including the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim
whatsoever, in each case, based upon any such untrue
statement or omission, or any such alleged untrue statement
or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to the third sentence of
Section 6(c) hereof, the reasonable fees and disbursements
of counsel chosen by Merrill Lynch), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever, in each case, based upon any such untrue
statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any U.S. Underwriter through the Global Coordinator expressly
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for use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto).
(b) Each U.S. Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
such U.S. Underwriter through the Global Coordinator expressly
for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, if the defendants in any such action include both an
indemnified party and an indemnifying party or another
indemnified party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties that are different from or additional
to those available to the indemnifying party or such other
indemnified party, all of the indemnified parties under this
Section 6 shall have the right to employ not more than one
counsel (in addition to one local counsel), respectively, to
represent them and, in that event, the fees and expenses of not
more than one such separate counsel (in addition to one such
local counsel) for the Underwriters shall be paid by the
indemnifying party. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel
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<PAGE>
for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of
the indemnified parties party thereto, settle or compromise or
consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which such indemnified parties are
parties and indemnification or contribution could be sought under
this Section 6 or Section 7 hereof by such indemnified parties,
unless such settlement, compromise or consent (i) includes an
unconditional release of each such indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or
on behalf of any such indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel for which such indemnified
party is otherwise entitled to reimbursement pursuant to the
terms of this indemnity agreement, such indemnifying party agrees
that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
(e) For purposes of this Section 6, all references to
the Registration Statement, any preliminary prospectus or the
Prospectuses, or any amendment or supplement to any of the
foregoing, shall be deemed to include, without limitation, any
electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to
EDGAR.
SECTION 7. Contribution. If the indemnification
------------
provided for in Section 6 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand from the offering of the U.S.
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
-30-
<PAGE>
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements
or omissions which 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 U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to
this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the
U.S. Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting
discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on
such cover. The relative fault of the Company on the one hand
and the U.S. Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the U.S. Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or
alleged omission. Notwithstanding the provisions of this Section
7, no U.S. Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person, if any, who controls:
a U.S. Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such U.S. Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
-31-
<PAGE>
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the
Company. The U.S. Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion
to the number of Initial U.S. Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements
------------------------------------------
to Survive Delivery. All representations, warranties and
-------------------
agreements contained in this Agreement and the U.S. Pricing
Agreement, or contained in certificates of officers of the
Company submitted pursuant to Section 5 hereto, shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of any U.S. Underwriter or
controlling person, or by or on behalf of the Company, and shall
survive delivery of the U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) The U S. Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which
information is given in the U.S. Prospectus, any material adverse
change in or affecting the business, properties, financial
condition or results of operations of the Company or the Company
and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectuses, or (ii) if there has
occurred any material adverse change in the financial markets in
the United States or elsewhere, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or
international political, financial or economic conditions or any
change or development involving a prospective change in national
or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the
reasonable judgment of the U.S. Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company
has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities. As used in this Section
9(a), the term "U.S. Prospectus" means the U.S. Prospectus in the
form first used by the U.S. Underwriters to confirm sales of the
U.S. Securities.
-32-
<PAGE>
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof, and
provided further that Sections 6 and 7 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S.
----------------------------------
Underwriters. If one or more of the U.S. Underwriters shall fail
------------
at Closing Time or a Date of Delivery to purchase the U.S.
Securities which it or they are obligated to purchase under this
Agreement and the U.S. Pricing Agreement (the "Defaulted
Securities"), the U.S. Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting U.S. Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of U.S. Securities to be purchased on
such date, each of the non-defaulting U.S. Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of U.S. Securities to be purchased on such date,
this Agreement shall terminate without liability on the part of
any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting U.S. Underwriter from liability in respect of its
default.
In the event of any such default which does not result
in a termination of this Agreement, either the U.S.
Representatives or the Company shall have the right to postpone
Closing Time or a Date of Delivery for a period not exceeding
seven days in order to effect any required changes in the
Registration Statement or Prospectuses or in any other documents
or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other
-------
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the U.S. Underwriters
shall be directed to the U.S. Representatives at North Tower,
World Financial Center, New York, New York 10281-1209, attention
of Syndicate Department; and notices to the Company shall be
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<PAGE>
directed to it at Infinity Broadcasting Corporation, 600 Madison
Avenue, New York, New York 10022, attention of President.
SECTION 12. Parties. This Agreement and the U.S.
-------
Pricing Agreement shall each inure to the benefit of and be
binding upon the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement or the U.S. Pricing Agreement is intended or shall be
construed to give any person, firm or corporation, other than the
U.S. Underwriters and the Company and their respective successors
and the controlling persons and officers and directors referred
to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect
of this Agreement or the U.S. Pricing Agreement or any provision
herein or therein contained. This Agreement and the U.S. Pricing
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the U.S.
Underwriters and the Company and their respective successors, and
said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any
U.S. Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT
----------------------
AND THE U.S. PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
-34-
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its
terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
ALEX. BROWN & SONS INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
----------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other
U.S. Underwriters named in Schedule A hereto.
-35-
<PAGE>
SCHEDULE A
Number of
Initial
Name of U.S. Underwriter Securities
------------------------ ----------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . .
Goldman, Sachs & Co. . . . . . . . . . . . . . . .
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . . . . . . .
Alex. Brown & Sons Incorporated. . . . . . . . . .
Smith Barney Inc. . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . 6,800,000
=========
<PAGE>
Exhibit A
6,800,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
U.S. Pricing Agreement
----------------------
__________ __, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as U.S. Representatives of the several U.S. Underwriters
named in the within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Reference is made to the U.S. Purchase Agreement dated
October __, 1995 (the "U.S. Purchase Agreement") relating to the
purchase by the several U.S. Underwriters named in Schedule A
thereto, for whom Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Goldman, Sachs & Co., Alex. Brown
& Sons Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation and Smith Barney Inc. are acting as representatives
(the "U.S. Representatives"), of the above shares of Class A
Common Stock (the "Securities"), of Infinity Broadcasting
Corporation, a Delaware corporation (the "Company").
Pursuant to Section 2 of the U.S. Purchase Agreement,
the Company agrees with each U.S. Underwriter as follows:
1. The initial public offering price per share for
the Securities, determined as provided in said Section 2,
shall be $_______.
<PAGE>
2. The purchase price per share for the Securities to
be paid by the several U.S. Underwriters shall be $_____,
being an amount equal to the initial public offering price
set forth above less $____ per share.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its
terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
ALEX. BROWN & SONS INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
----------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other
U.S. Underwriters named in Schedule A hereto.
-2-
<PAGE>
Exhibit B
"LOCK-UP" LETTER
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Goldman, Sachs & Co.
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Infinity
------------------------------------
Broadcasting Corporation
------------------------
Dear Sirs:
The undersigned, a stockholder of Infinity Broadcasting
Corporation, a Delaware corporation (the "Company"), understands
that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") proposes to enter into a U.S.
Purchase Agreement (the "U.S. Purchase Agreement") with the
Company providing for the public offering of shares (the
"Securities") of the Company's Class A common stock, par value
$.002 per share (the "Class A Common Stock"), and a related U.S.
Pricing Agreement (the "U.S. Pricing Agreement") which will set
forth, among other things, the initial public offering price of
the Securities. In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder of the
Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the U.S.
Purchase Agreement that, during a period of 90 days from the date
of the U.S. Pricing Agreement, the undersigned will not, without
the prior written consent of Merrill Lynch and the other
representatives, if any, of the several underwriters named in the
U.S. Purchase Agreement, directly or indirectly, sell, grant any
option for the sale of, or otherwise dispose of or transfer, any
shares of the Company's Class A Common Stock or any securities
convertible into or exchangeable or exercisable for Class A
Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or request the
<PAGE>
filing of any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing.
This letter shall become effective concurrently with
the execution and delivery of the U.S. Purchase Agreement.
Very truly yours,
Signature:__________________________
Print Name:_________________________
-2-
EXHIBIT 1.02
1,700,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
International Purchase Agreement
--------------------------------
October __, 1995
Merrill Lynch International Limited
Goldman Sachs International
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as Lead Managers of the several
International Managers
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
Dear Sirs:
Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), confirms its agreement with Merrill Lynch International Limited
("Merrill Lynch") and each of the other International Managers named in Schedule
A hereto (collectively, the "International Managers", which term shall also
include any manager substituted as hereinafter provided in Section 10 hereof),
for whom Merrill Lynch, Goldman Sachs International, Alex. Brown & Sons
Incorporated, Donaldson, Lufkin & Jenrette Securities Corporation and Smith
Barney Inc. are acting as lead managers (in such capacity, Merrill Lynch,
Goldman Sachs International, Alex. Brown & Sons Incorporated, Donaldson, Lufkin
& Jenrette Securities Corporation and Smith Barney Inc. shall hereinafter be
referred to as the "Lead Managers"), with respect to the sale by the Company and
the purchase by the International Managers, acting severally and not jointly, of
the respective numbers of shares of Class A Common Stock, par value $.002 per
share, of the Company ("Class A Common Stock") set forth in said Schedule A, and
with respect to the grant by the Company to the International Managers, acting
<PAGE>
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 255,000 additional shares of Class A Common Stock to
cover over-allotments, if any. The aforesaid 1,700,000 shares of Class A Common
Stock (the "Initial International Securities") to be purchased by the
International Managers and all or any part of the 255,000 shares of Class A
Common Stock subject to the option described in Section 2(b) hereof (the
"International Option Securities") are hereinafter called, collectively, the
"International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 6,800,000 shares of Class A
Common Stock (the "Initial U.S. Securities") through arrangements with certain
underwriters within the United States and Canada (the "U.S. Underwriters") for
which Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co.,
Alex. Brown & Sons Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation and Smith Barney Inc. are acting as representatives (the "U.S.
Representatives") and the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of an option to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 1,020,000 additional shares of Class A
Common Stock solely to cover over-allotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities". It is understood that the Company is
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
Prior to the purchase and public offering of the International
Securities by the several International Managers, the Company and the Lead
Managers, acting on behalf of the several International Managers, shall enter
into an agreement substantially in the form of Exhibit A hereto (the
"International Pricing Agreement"). The International Pricing Agreement may
-2-
<PAGE>
take the form of an exchange of any standard form of written telecommunication
between the Company and the Lead Managers and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the
International Securities will be governed by this Agreement, as supplemented by
the International Pricing Agreement. From and after the date of the execution
and delivery of the International Pricing Agreement, this Agreement shall be
deemed to incorporate the International Pricing Agreement. The initial public
offering price and the purchase price with respect to the U.S. Securities shall
be set forth in a separate instrument (the "U.S. Pricing Agreement"), the form
of which is attached to the U.S. Purchase Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-62711), which
includes a related preliminary prospectus, for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), has
filed such amendments thereto, if any, including such amended preliminary
prospectuses, as may have been required to the date hereof, and will file such
additional amendments thereto, including such amended prospectuses, as may
hereafter be required. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the International
Securities (the "International Prospectus") and one relating to the U.S.
Securities (the "U.S. Prospectus"). Such registration statement (as amended, if
applicable) and the International Prospectus and the U.S. Prospectus
constituting a part thereof (including in each case all documents incorporated
or deemed to be incorporated by reference therein and the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the rules and regulations
of the Commission under the 1933 Act (the "1933 Act Regulations")), as from time
to time amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are hereinafter
referred to as the "Registration Statement", the "International Prospectus" and
the "U.S. Prospectus", respectively, and the International and U.S. Prospectuses
are hereinafter together called "Prospectuses" and, each individually, a
"Prospectus", except that if any revised prospectus shall be provided to the
International Managers or the U.S. Underwriters by the Company for use in
connection with the offering of the Securities which differs from the
Prospectuses on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
terms "International Prospectus" and "U.S. Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to the
International Managers or the U.S. Underwriters, as the case may be, for such
use. All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement or the Prospectuses (and all other references of like
import) shall be
-3-
<PAGE>
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectuses, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectuses shall be deemed to mean and include the filing of
any document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectuses, as the case may be.
The Company understands that the International Managers propose to
make a public offering of the International Securities as soon as the Lead
Managers deem advisable after the Registration Statement becomes effective and
the International Pricing Agreement has been executed and delivered. The price
per share for the U.S. Securities to be purchased by the U.S. Underwriters
pursuant to the U.S. Purchase Agreement shall be identical to the price per
share for the International Securities to be purchased by the International
Managers hereunder.
SECTION 1. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each International Manager
as of the date hereof and as of the date of the International Pricing Agreement
(such latter date being hereinafter referred to as the "Representation Date") as
follows:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act, and at the respective times the Registration Statement and any
post-effective amendments thereto become effective, the Registration
Statement will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Each preliminary prospectus, as of its date, and the
International Prospectus, at the Representation Date (unless the term
"International Prospectus" refers to a prospectus which has been provided
to the International Managers by the Company for use in connection with the
offering of the International Securities which differs from the
International Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, in which case at the time
such prospectus is first provided to the International Managers for such
use) and at Closing Time and each Date of Delivery referred to in Section
2, will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made
-4-
<PAGE>
in reliance upon and in conformity with information furnished to the
Company in writing by any International Manager through the Lead Managers
expressly for use in the Registration Statement or Prospectus. For
purposes of this Section 1(a), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectuses shall
be deemed to include, without limitation, any electronically transmitted
copies thereof, including, without limitation, any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system ("EDGAR").
(ii) KPMG Peat Marwick LLP, whose report appears in the Prospectuses
or are incorporated by reference therein, are independent public
accountants with respect to the Company as required by the 1933 Act and the
1933 Act Regulations. Price Waterhouse LLP, whose report appears in the
Prospectuses or is incorporated by reference therein, are independent
public accountants with respect to Alliance Broadcasting, L.P. as required
by the 1933 Act and the 1933 Act Regulations.
(iii) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, changes in stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States ("U.S. GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in all material respects in accordance with U.S. GAAP the
information required to be stated therein. The summary financial data and
the summary financial information in the Prospectuses present fairly in all
material respects the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements incorporated
by reference in the Registration Statement. The pro forma combined
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and the assumptions used in the preparation
thereof are, in the Company's opinion, reasonable.
(iv) Except as described in or contemplated by the Registration
Statement and the Prospectuses, there has not been any change in the
capital stock or long-term debt of
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the Company or any material adverse change in, or any development which
materially and adversely affects, the business, properties, financial
condition or results of operations of the Company or of the Company and its
subsidiaries taken as a whole, from the dates as of which information is
given in the Registration Statement and the Prospectuses.
(v) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectuses and to enter
into and perform its obligations under this Agreement, the International
Pricing Agreement, the U.S. Purchase Agreement and the U.S. Pricing
Agreement; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of New York; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business.
(vi) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business; all of the
issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or claim, except
for liens created under the Second Amended and Restated Security Agreement
dated as of December 22, 1994 (as amended to the date hereof, the "Security
Agreement"), by and among the Company, each of the subsidiaries of the
Company identified therein and Chemical Bank, as collateral agent. None of
the subsidiaries of the Company other than Hemisphere Broadcasting
Corporation, Sagittarius Broadcasting Corporation, Infinity Broadcasting
Corporation of California, Infinity Broadcasting Corporation of Chicago,
Infinity Broadcasting Corporation of Illinois, Infinity Broadcasting
Corporation of Los Angeles, Infinity Broadcasting Corporation of Maryland,
Infinity Broadcasting Corporation of New York and Infinity Broadcasting
Corporation of Texas is a "significant subsidiary" (as defined in Rule 405
of the 1933 Act Regulations).
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<PAGE>
(vii) The authorized, issued and outstanding capital stock of the
Company at June 30, 1995 was as is set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization"; and the shares
of issued and outstanding Class A Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable and conform in all
material respects to the description thereof contained in the Prospectus.
The Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance and
sale to the International Managers pursuant to this Agreement and to the
U.S. Underwriters pursuant to the U.S. Purchase Agreement, respectively,
and, when issued and delivered by the Company pursuant to this Agreement
and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth in the International Pricing Agreement and the U.S.
Pricing Agreement, respectively, will be validly issued and fully paid and
non-assessable; and the issuance of the Securities is not subject to
preemptive or other similar rights of any securityholder of the Company
arising by operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any of its subsidiaries is a
party.
(viii) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, the effect of which violation or default would be
material to the Company or the Company and its subsidiaries taken as a
whole; and the execution, delivery and performance of this Agreement, the
International Pricing Agreement, the U.S. Purchase Agreement and the U.S.
Pricing Agreement, the issuance and delivery of the Securities and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or constitute a default
or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
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<PAGE>
subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets or properties, the effect of which conflict, breach, default,
Repayment Event, lien, charge, encumbrance or violation, individually or in
the aggregate, is reasonably likely to have a material adverse effect on
the business, properties, financial condition or results of operations of
the Company or the Company and its subsidiaries taken as a whole. As used
herein, a "Repayment Event" means any event or condition the occurrence of
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(ix) Except as described in the Registration Statement and the
Prospectuses, there is no litigation or governmental proceeding or
investigation pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which (individually or in
the aggregate) is reasonably likely to have a material adverse effect on
the business, properties, financial condition or results of operations of
the Company or of the Company and its subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement and the
Prospectuses.
(x) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits thereto by the
1933 Act, the 1933 Act Regulations, the 1934 Act or the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations") which have not been so described and filed as required.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement
except such as have been already obtained or as may be required under the
1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations
or state or other securities laws.
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<PAGE>
(xii) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all
items of real and personal property which are material to the business of
the Company or the Company and its subsidiaries taken as a whole, free and
clear of any lien, claim, encumbrance, preemptive rights or any other claim
of any third party which might materially interfere with the conduct of the
business of the Company or the Company and its subsidiaries taken as a
whole, except for liens created under the Security Agreement.
(xiii) The Company and each of its subsidiaries have all power and
authority, and, except as described in the Registration Statement, possess
all necessary authorizations, approvals, orders, licenses, franchises,
certificates and permits of and from all foreign and domestic governmental
regulatory officials and bodies (including the Federal Communications
Commission ("FCC")) to own or hold their respective properties and to
conduct the respective businesses in which they are engaged, except those
authorizations, approvals, orders, licenses, franchises, certificates and
permits which the failure to possess would not have a material adverse
effect on the business, properties, financial condition or results of
operations of the Company or the Company and its subsidiaries taken as a
whole (the "Excluded Authorizations"). Except as described in the
Registration Statement and the Prospectuses, each such authorization,
approval, order, license, franchise, certificate and permit, other than the
Excluded Authorizations, is valid and in full force and effect and there is
no proceeding pending or, to the best knowledge of the Company, threatened
which is reasonably likely to lead to the revocation, termination,
suspension or non-renewal of any such authorization, approval, order,
license, franchise, certificate or permit, other than any Excluded
Authorizations. The Company is in material compliance with all applicable
laws, rules and regulations.
(xiv) Each of the Company and its subsidiaries carries insurance in
such amounts and covering such risks as, in the Company's opinion, is
adequate for the conduct of their respective businesses and the value of
their respective property, plants and equipment and such insurance is in
full force and effect.
(xv) This Agreement and the U.S. Purchase Agreement have been and, on
the Representation Date, the International Pricing Agreement and the U.S.
Pricing Agreement will have been, duly authorized, executed and delivered
by the Company.
(xvi) Other than as described in the Prospectuses, there are no holders
of securities of the Company who, by reason
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<PAGE>
of the filing of the Registration Statement under the 1933 Act or the
execution by the Company of this Agreement, have the right to request or
demand that the Company register under the 1933 Act securities held by
them.
(xvii) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act"), or is exempt therefrom.
(xviii) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectuses under the caption "Use of
Proceeds" will not be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xix) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations.
(xx) The Company has not taken, and agrees that it will not take,
directly or indirectly, any action that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security to facilitate the sale or resale of the Securities.
(xxi) The Company has obtained and delivered to the Global Coordinator
the agreements of the Principal Stockholders (as defined in the
Registration Statement) and Zena Wiener to the effect that each such person
will not, for a period of 90 days from the date hereof and except as
otherwise provided therein, without the Global Coordinator's prior written
consent directly or indirectly, sell, grant any option for the sale of, or
otherwise dispose of, any shares of Class A Common Stock or any securities
convertible into or exercisable for Class A Common Stock owned by such
person or entity or with respect to which such person has the power of
disposition, or request the filing of any registration statement under the
1933 Act with respect to any of the foregoing.
(b) Any certificate signed by any officer of the Company and
delivered to the Global Coordinator, Lead Managers or to counsel for the
International Managers pursuant to Section 5 shall be deemed a representation
and warranty by the Company to each International Manager as to the matters
covered thereby.
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<PAGE>
SECTION 2. Sale and Delivery to International Managers; Closing.
----------------------------------------------------
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each International Manager, severally and not jointly, and
each International Manager, severally and not jointly, agrees to purchase from
the Company, at the price per share set forth in the International Pricing
Agreement, the number of Initial International Securities set forth in Schedule
A opposite the name of such International Manager (except as otherwise provided
in the International Pricing Agreement), plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Company has elected not to rely upon Rule 430A under the
1933 Act Regulations, the initial public offering price and the purchase
price per share to be paid by the several International Managers for the
Securities have each been determined and set forth in the International
Pricing Agreement, dated the date hereof, and an amendment to the
Registration Statement, including the Prospectuses contained therein, will
be filed before the Registration Statement becomes effective.
(2) If the Company has elected to rely upon Rule 430A under the 1933
Act Regulations, the initial public offering price and the purchase price
per share to be paid by the several International Managers for the
Securities shall be determined by agreement between the Lead Managers and
the Company and, when so determined, shall be set forth in the
International Pricing Agreement. In the event that such prices have not
been agreed upon and the International Pricing Agreement has not been
executed and delivered by all parties thereto by the close of business on
the fourteenth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any
other party, unless otherwise agreed to by the Company and the Lead
Managers, except that Sections 6 and 7 shall remain in effect. For
purposes of this Agreement, the term "business day" means a day on which
the New York Stock Exchange is open for business and the trading of
securities thereon is permitted.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the International Managers, severally and not
jointly, to purchase up to an additional 255,000 shares of Class A Common Stock
at the purchase price per share set forth in the International Pricing
Agreement. The option hereby granted will expire 30 days after (i) the date the
Registration Statement
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<PAGE>
becomes effective, if the Company has elected not to rely on Rule 430A under the
1933 Act Regulations, or (ii) the Representation Date, if the Company has
elected to rely on Rule 430A under the 1933 Act Regulations, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial International Securities upon notice by the Global
Coordinator to the Company setting forth the number of International Option
Securities as to which the several International Managers are then exercising
the option and the time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the International
Option Securities (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined, unless otherwise agreed by the Global Coordinator and the
Company. If the option is exercised as to all or any portion of the
International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities (except as otherwise provided in the International Pricing
Agreement), subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial International Securities shall be made at the office of Simpson
Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017, or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 10:00 A.M. on the third business day (unless postponed in accordance with the
provisions of Section 10) following the date the Registration Statement becomes
effective (or, if the Company has elected to rely upon Rule 430A of the 1933 Act
Regulations, the third business day after execution of the International Pricing
Agreement), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time"). In addition,
in the event that any or all of the International Option Securities are
purchased by the International Managers, payment of the purchase price for, and
delivery of certificates for, such International Option Securities shall be made
at the above-mentioned offices of Simpson Thacher & Bartlett, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, on each
Date of Delivery as specified in the notice from the Global Coordinator to the
Company. Payment shall be made to the Company by certified or official bank
check or checks drawn in next day funds payable to the order of the Company,
against delivery to the Lead Managers for the respective accounts
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of the International Managers of certificates for the Securities to be purchased
by them. Certificates for the Initial International Securities and the
International Option Securities, if any, shall be in such denominations and
registered in such names as the Lead Managers may request in writing at least
two business days before the Closing Time or the relevant Date of Delivery, as
the case may be. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial International
Securities and the International Option Securities, if any, which it has agreed
to purchase. Merrill Lynch, individually and not as representative of the
International Managers, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the International Option
Securities, if any, to be purchased by any International Manager whose check has
not been received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such International Manager from
its obligations hereunder. The certificates for the Initial Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the Lead Managers in The City of New York not later than 10:00
A.M. on the last business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
International Manager as follows:
(a) The Company will notify the Global Coordinator promptly (i) when
the Registration Statement, or any post-effective amendment to the Registration
Statement, shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectuses or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will make every reasonable effort, if any stop order
is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will give the Global Coordinator notice of its
intention to file any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise (including any
revised prospectus which the Company proposes for use by the International
Managers in connection with the offering of the
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Securities which differ from the International Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), will furnish the Global Coordinator 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 will not file any such
amendment or supplement or use any such prospectus to which the Global
Coordinator or U.S. counsel for the Underwriters shall not have consented (which
consent shall not be unreasonably withheld).
(c) The Company has furnished or will deliver to the Lead Managers
and counsel for the International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to the Lead Managers a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers.
(d) The Company will deliver to each International Manager, without
charge, from time to time until the effective date of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A, until such time as the
International Pricing Agreement is executed and delivered), as many copies of
each preliminary prospectus as such International Manager may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each International
Manager, without charge prior to the expiration of nine months after the
effective date of the Registration Statement and thereafter at the International
Managers' expense, from time to time during the period when the International
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) If the delivery of a prospectus is required at any time that any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of U.S. counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the International Prospectus
in order that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in
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the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the International Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the International Prospectus
comply with such requirements, and the Company will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request (but at the expense of the
International Managers at any time nine months or more after the effective date
of the Registration Statement) in connection with the offering or sale of the
International Securities.
(f) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then promptly following the execution of
the International Pricing Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended International
Prospectus, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended International Prospectus),
containing all information so omitted and will use every reasonable effort to
cause such post-effective amendment to be declared effective as promptly as
practicable.
(g) The Company will endeavor, in cooperation with the International
Managers, to qualify the International Securities for offering and sale under
the applicable securities laws of such states as the Global Coordinator may
reasonably request and to maintain such qualifications in effect for a period of
not less than nine months from the effective date of the Registration Statement
(but in any event no later than the date the distribution of the International
Securities has been completed); provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the U.S Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than nine months from the effective date of the Registration Statement (but in
any event no later than the date the distribution of the International
Securities has been completed).
(h) The Company will make generally available to its security holders
as soon as practicable an earnings statement (in
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form complying with the provisions of Rule 158 of the 1933 Act Regulations and
which need not be audited) covering a twelve month period beginning on the
"effective date" (as defined in said Rule 158) of the Registration Statement.
(i) For a period of five years from the effective date of the
Registration Statement, the Company will furnish to the Lead Managers copies of
all public reports and all reports and financial statements furnished by the
Company to the New York Stock Exchange or any other principal national
securities exchange upon which its Class A Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the 1934 Act or any rule or regulation of the Commission thereunder.
(j) The Company will endeavor to effect the listing of the Securities
on the New York Stock Exchange and will endeavor to maintain the listing of the
Class A Common Stock on the New York Stock Exchange and will take such action as
may be reasonably necessary to comply with the rules and regulations of the
Exchange in respect of the Class A Common Stock.
(k) During a period of 90 days from the date of the International
Pricing Agreement, the Company (i) will not, without the prior written consent
of Merrill Lynch, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Class A Common Stock or any
securities convertible into or exchangeable or exercisable for Class A Common
Stock (except for Class A Common Stock issued or options granted pursuant to
this Agreement, pursuant to employee benefit plans, deferred share plans,
qualified stock option plans or other employee compensation plans existing on
the date hereof or pursuant to the exercise of currently outstanding convertible
securities, warrants or options) or file any registration statement under the
1933 Act with respect to any of the foregoing and (ii) will enforce its rights
against each of the Lehman Investors (as defined in the Registration Statement)
under that certain letter agreement dated September 15, 1995 and will not waive
compliance by the Lehman Investors with the provisions thereof without the prior
written consent of Merrill Lynch.
(l) The Company, during the period when a prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the production and copying of this
Agreement, the International Pricing Agreement, any Agreement among Underwriters
and such other documents as may be reasonably required in
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connection with the offering, purchase, sale and delivery of the International
Securities, (iii) the preparation, issuance and delivery of the certificates for
the International Securities to the International Managers, including any
capital duties, stamp duties and stock or other transfer taxes payable upon the
sale of the International Securities to the International Managers, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors,
(v) the qualification of the International Securities under state securities
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the fees and disbursements of counsel for the International Managers in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
International Managers of copies of each preliminary prospectus and of the
International Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the International Managers of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the International Securities, (ix) the
filing fees incident to the review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities, and (x)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange; provided that, except as provided in this
--------
Section 4 and Section 6, the International Managers shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer or
other taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the International Managers.
If this Agreement is terminated by the Global Coordinator in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the International Managers for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of U.S.
counsel for the Underwriters, as shall have been incurred by them in connection
with this Agreement and the proposed purchase of the International Securities.
SECTION 5. Conditions of International Managers' Obligations. The
-------------------------------------------------
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company herein contained,
to the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the Global
Coordinator, at a later time and date, not later, however, than 5:30 P.M. on the
first business day following the date hereof, or at such later time and date as
may be approved by a majority in interest of the several International Managers;
and at Closing Time no stop order
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suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of U.S.
counsel to the Underwriters. If the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the price of the Securities and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing in accordance with Rule 424(b) of the 1933 Act Regulations within the
prescribed time period and prior to Closing Time the Company shall have provided
evidence satisfactory to the Global Coordinator of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirements of Rule 430A of
the 1933 Act Regulations.
(b) At Closing Time the Lead Managers shall have received:
(i) The favorable opinion, dated as of Closing Time, of Debevoise &
Plimpton, special counsel for the Company, to the effect that:
(1) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in the jurisdictions identified by such counsel; all
outstanding shares of capital stock of the subsidiaries of the Company
are owned by the Company directly, or indirectly through wholly owned
subsidiaries, subject to the lien created under the Security
Agreement; the Company and each of its Significant Subsidiaries have
all corporate power and authority necessary to own or hold their
respective properties and to conduct their respective businesses as
described in the Prospectuses;
(2) Except as described in the Prospectuses (including the
documents incorporated by reference therein), there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any shares of the Class A Common Stock
pursuant to the Company's Restated Certificate of Incorporation, as
amended, or Amended and Restated By-laws, each as in effect on the
date of such opinion, or any agreement or other outstanding instrument
to which the Company is a party known to such counsel, except for
restrictions arising under the Amended and Restated Stockholders'
Agreement dated as of February 5, 1992;
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(3) The Securities to be purchased by the International Managers
and the U.S. Underwriters from the Company have been duly authorized
for issuance and sale to the International Managers pursuant to this
Agreement and the International Pricing Agreement and to the U.S.
Underwriters pursuant to the U.S. Purchase Agreement and the U.S.
Pricing Agreement, respectively, and, when issued and delivered by the
Company and upon payment therefor by the International Managers and
the U.S. Underwriters pursuant to this Agreement and the International
Pricing Agreement and the U.S. Purchase Agreement and the U.S. Pricing
Agreement, respectively, will be validly issued and fully paid and
non-assessable; the Class A Common Stock conforms in all material
respects as to legal matters to the description of the Class A Common
Stock of the Company contained in the Prospectuses under the caption
"Description of Capital Stock"; the authorized capital stock of the
Company and, to the belief of such counsel based on the review and
other procedures referred to in the penultimate paragraph of this
Section 5(b)(i) and subject to such paragraph, the outstanding shares
of capital stock of the Company as of the respective dates set forth
in the Prospectuses were as set forth in the Prospectuses; and the
statements made in the Prospectuses under the caption "Description of
Capital Stock," insofar as they purport to summarize the terms of the
Company's capital stock (including the Class A Common Stock), fairly
present in all material respects the information called for with
respect thereto by the 1933 Act Regulations;
(4) The Registration Statement was declared effective under the
Act as of the date and time specified in such opinion, the
Prospectuses were filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the 1933 Act Regulations specified in
such opinion on the date specified therein and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission;
(5) The Registration Statement and the Prospectuses (except that
no opinion need be expressed as to the financial statements and other
financial and statistical information contained therein) comply as to
form in all material respects with the requirements of the Act and the
1933 Act Regulations; and the documents incorporated by reference in
the Prospectuses (except that no opinion need be expressed as to the
financial statements and other financial and statistical information
contained therein), when they were filed with the Commission, complied
as to form in all
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material respects with the requirements of the 1934 Act and the 1934
Act Regulations;
(6) Such counsel does not know of any litigation or any
governmental proceeding, inquiry or investigation pending or
threatened against the Company or any of its subsidiaries (other than
any litigation or governmental proceeding, inquiry or investigation
under the Communications Act of 1934, as amended (the "Communications
Act") or the rules and regulations of the FCC, as to which such
counsel need express no opinion) which (individually or in the
aggregate) is reasonably likely to have a material adverse effect on
the Company and its subsidiaries taken as a whole, or adversely affect
the consummation of this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement
or the performance by the Company of its obligations hereunder or
thereunder;
(7) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations
which have not been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the 1933 Act
Regulations;
(8) To such counsel's knowledge, neither the Company nor any of
its Significant Subsidiaries is in violation of its corporate charter
or by-laws, or in default under any material agreement, indenture or
instrument (except, in the case of any such material agreement,
indenture or instrument, for any such violation or default which would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole);
(9) The Company has all necessary corporate power and authority
to execute and deliver this Agreement and to perform its obligations
hereunder;
(10) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby by the Company will not conflict with, or result in the
creation or imposition of any lien, claim, encumbrance, preemptive
rights or any claim of any third party upon any of the assets of the
Company or any of its subsidiaries pursuant to the terms of, or
constitute a material default under, any agreement, indenture or
instrument listed as an exhibit to the Registration Statement to which
the Company or any of its
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subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, except where such
conflict, lien, claim, encumbrance, preemptive right, third party
claim or default would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, or result in a
violation of the corporate charter or by-laws of the Company or any of
its subsidiaries or, to such counsel's knowledge, any material order,
rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property (except that such counsel need not express any opinion as to
the provisions relating to indemnity and contribution or as to any
order, rule or regulation of the FCC); and no consent, authorization
or order of, or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance of this
Agreement by the Company, except such as may be required by the 1933
Act, the 1934 Act, the Communications Act or state securities laws, or
except where the failure to obtain such consent, authorization or
order, or to effect such filing or registration, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and
(11) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
and the rules and regulations of the Commission thereunder.
Such counsel shall have stated that, while they have not themselves
checked the accuracy and completeness of or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the
Prospectuses, except to the limited extent stated in paragraph (3) above,
in the course of their review and discussion of the contents of the
Registration Statement and Prospectuses with certain officers and employees
of the Company and its independent accountants, but without independent
check or verification, no facts have come to their attention which cause
them to believe that the Registration Statement (other than the financial
statements and other financial and statistical information contained
therein, as to which they need express no belief) at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements contained therein not
misleading, or that the Prospectuses (other than the financial statements
and other financial and statistical information contained
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therein, as to which they need express no belief), as of their dates and as
of the Closing Time, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of officers of the
Company and public officials. In rendering the opinion set forth in
paragraph (1) above concerning the corporate power and authority of each of
the Significant Subsidiaries, such counsel may assume that the relevant
laws of jurisdictions other than New York and Delaware do not differ
materially from the corresponding laws of the State of New York or the
General Corporation Law of the State of Delaware, and in rendering the
opinion set forth in such paragraph concerning the ownership of the
outstanding shares of capital stock of the subsidiaries of the Company,
such counsel may rely exclusively upon a review of the stock transfer
records for each such subsidiary and a certificate of an officer of the
Company. In rendering the opinion set forth in paragraph (4) above, such
counsel may rely exclusively on telephone advice received from the staff of
the Commission. In rendering the opinion set forth in paragraph (6) above,
such counsel may rely exclusively upon discussions with attorneys at
Debevoise & Plimpton who work on the matters with respect to which such
firm has represented the Company and upon a certificate of an officer of
the Company. In rendering the opinion set forth in paragraph (7) above as
to the filing of all contracts or other documents which are required to be
filed by the 1933 Act or the 1933 Act Regulations, such counsel may, as to
factual matters, rely on a certificate of an officer of the Company.
(ii) Leventhal, Senter & Lerman, as special FCC counsel to the
Company, shall have furnished to the Lead Managers their opinion addressed
to the Underwriters and dated as of the Closing Time to the effect that
with respect to matters arising under the Communications Act and the rules
and regulations of the FCC:
(1) No approval is required under the Communications Act or the
rules and regulations of the FCC in connection with the issuance and
sale of the Class A Common Stock;
(2) The Company and its subsidiaries have such authorizations,
approvals, orders, licenses, franchises, certificates and permits
appropriate or necessary under the Communications Act and the rules
and regulations of the FCC to conduct their broadcasting business, and
such authorizations,
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approvals, orders, licenses, franchises, certificates and permits
contain no burdensome restrictions not adequately described in the
Prospectus, and the Company's Annual Report on Form 10-K for the year
ended December 31, 1994 (the "1994 Form 10-K") and Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1995 (the "June 30
Form 10-Q"), each incorporated by reference in the Prospectus, that
would materially adversely affect the Company's broadcasting business
as presently conducted;
(3) The execution, delivery and performance of this Agreement by
the Company do not and will not violate the Communications Act or the
rules and regulations of the FCC;
(4) Such counsel does not know of any litigation, governmental
proceeding or investigation under the Communications Act or the rules
and regulations of the FCC against or involving the Company or its
subsidiaries or the radio station properties, authorizations,
approvals, orders, licenses, franchises, certificates and permits
owned or held by the Company or its subsidiaries that would materially
adversely affect the Company's broadcasting business as presently
conducted that is not disclosed in the Prospectuses, and the 1994 Form
10-K and the June 30 Form 10-Q incorporated by reference in the
Prospectuses; and
(5) The statements made under the caption "Business--General--
Federal Regulation of Radio Broadcasting" in the 1994 Form 10-K,
incorporated by reference in the Prospectuses, and under the captions
"Risk Factors -- Regulatory Matters", "The Company -- Recent
Developments -- Telecommunications Bills", "-- FCC Settlement;
Assignment Applications" and "Description of Capital Stock--Foreign
Ownership" in the Prospectuses, taken together, insofar as they are,
or refer to, statements of law, legal conclusions or summaries
relating to the Communications Act or the rules and regulations of the
FCC, fairly reflect the provisions purported to be summarized as
material to the Company and are in all material respects correct; and
such counsel has no reason to believe that such statements as of the
Effective Date and as of Closing Time or a Date of Delivery, as the
case may be, contain any untrue statement of a material fact or omit
to state a material fact necessary to make such statements, in light
of the circumstances under which they were made, not misleading.
In rendering the opinion set forth in paragraph (5) above concerning
the statements made under the caption
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"Business--General--Federal Regulation of Radio Broadcasting" in the 1994
Form 10-K, incorporated by reference in the Prospectuses, and under the
captions "Risk Factors -- Regulatory Matters", "The Company -- Recent
Developments -- Telecommunications Bills", "-- FCC Settlement; Assignment
Applications" and "Description of Capital Stock--Foreign Ownership" in the
Prospectuses, such counsel may, as to factual matters relating to the
ownership interests of the Lehman Investors, rely solely upon
representations furnished to such counsel in writing by the Lehman
Investors.
(iii) The favorable opinion, dated as of Closing Time, of Simpson
Thacher & Bartlett, U.S. counsel for the Underwriters, to the effect that:
(1) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware;
(2) The shares of Class A Common Stock to be sold by the Company
have been duly authorized by the Company and, upon payment and
delivery in accordance with this Agreement, the International Pricing
Agreement, the U.S. Purchase Agreement and the U.S. Pricing Agreement,
will be validly issued, fully paid and nonassessable;
(3) The statements made in the Prospectuses under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Company's Class A Common Stock,
constitute accurate summaries of the terms of such Class A Common
Stock in all material respects; and
(4) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the
Company.
Such counsel shall have stated that, while they have not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectuses or the documents
incorporated, or deemed to be incorporated, by reference therein, and take
no responsibility therefor, except as set forth in paragraph (3) above, in
the course of the preparation by the Company of the Registration Statement
and the Prospectuses, they participated in conferences with certain
officers and employees of the Company, with representatives of KPMG Peat
Marwick and with counsel to the Company. Such counsel shall, based upon
their examination of the Registration Statement, the Prospectuses and the
documents incorporated by reference therein, their investigations made in
connection with the preparation of the Registration Statement and the
Prospectuses and their
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participation in the conferences referred to above, state that (i) they are
of the opinion that the Registration Statement, as of its effective date,
and the Prospectuses, as of the date thereof, complied as to form in all
material respects with the requirements of the 1933 Act and the applicable
rules and regulations of the Commission thereunder and that the documents
incorporated by reference therein complied as to form when filed in all
material respects with the requirements of the 1934 Act and the applicable
rules and regulations of the Commission thereunder (except such counsel
need express no belief as to the financial statements or other financial
data contained therein), and (ii) they have no reason to believe that the
Registration Statement, as of its effective date (including the 1934 Act
documents on file with the Commission on such effective date), contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectuses (including the
documents incorporated by reference therein), as of the date of this
Agreement and as of the Closing Time, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) At Closing Time, (i) neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectuses any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectuses and (ii) since the respective dates as of which
information is given in the Prospectuses there shall not have been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective change,
in or affecting the business, properties, financial condition, results of
operations or prospects of the Company or the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectuses, the
effect of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Global Coordinator, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities at the Closing Time on the terms and in the manner
contemplated in the Prospectuses. The Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (A) the representations and warranties in Section 1 hereof
are true and correct in all material respects as of the Closing Time with the
same force and effect as though expressly made at and as of
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Closing Time, (B) the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to
be performed or satisfied at or prior to Closing Time, and (C) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c) the term "International Prospectus"
means the International Prospectus in the form first used by the International
Managers to confirm sales of the International Securities.
(d) The Company shall have furnished to the Lead Managers a letter of
KPMG Peat Marwick LLP and a letter of Price Waterhouse LLP addressed to the
Underwriters and dated the Closing Time, confirming that they are independent
public accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and stating, as of Closing Time
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of such
letter), the conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter delivered to the Lead
Managers concurrently with the execution of this Agreement and confirming in all
material respects the conclusions and findings set forth in such prior letter.
(e) At the Closing Time the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of
issuance, and the NASD shall have approved in writing the International
Managers' participation in the distribution of the International Securities and
such approval shall not have been withdrawn or limited.
(f) At the date of this Agreement, the U.S. Representatives shall
have received an agreement substantially in the form of Exhibit B hereto signed
by the Principal Stockholders and Zena Weiner.
(g) At Closing Time and at each Date of Delivery U.S. counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Lead Managers and U.S. counsel for the
Underwriters.
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(h) The closing under the U.S. Purchase Agreement shall have occurred
concurrently with the closing hereunder at Closing Time.
(i) In the event that the International Managers exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Lead Managers shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company confirming that the certificate delivered
at the Closing Time pursuant to Section 5(c) hereof remains true and
correct in all material respects as of such Date of Delivery.
(2) The favorable opinion of Debevoise & Plimpton, special counsel
for the Company, together with the favorable opinion of Leventhal, Senter &
Lerman, special FCC counsel for the Company, each in form and substance
reasonably satisfactory to U.S. counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Sections 5(b)(1) and 5(b)(2)
hereof.
(3) The favorable opinion of Simpson Thacher & Bartlett, U.S. counsel
for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(b)(3)
hereof.
(4) A letter from KPMG Peat Marwick LLP and a letter of Price
Waterhouse LLP, in form and substance reasonably satisfactory to the Lead
Managers and dated such Date of Delivery, substantially the same in form
and substance as the letter furnished to the Lead Managers pursuant to
Section 5(d) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Lead Managers by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 6
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and 7 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information deemed to be part of
the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or prospectus, including the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, in each case, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the third sentence of Section 6(c) hereof, the reasonable fees
and disbursements of counsel chosen by Merrill Lynch), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever, in each case, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue
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statement or omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Manager through the Global Coordinator expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto).
(b) Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such International Manager through the Global
Coordinator expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, if the
defendants in any such action include both an indemnified party and an
indemnifying party or another indemnified party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party or such other indemnified party, all of the
indemnified parties under this Section 6 shall have the right to employ not more
than one counsel (in addition to one local counsel), respectively, to represent
them and, in that event, the fees and expenses of not more than one such
separate counsel (in addition to one such local counsel) for the Underwriters
shall be paid by the
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indemnifying party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties party thereto, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which such indemnified parties are parties and
indemnification or contribution could be sought under this Section 6 or Section
7 hereof by such indemnified parties, unless such settlement, compromise or
consent (i) includes an unconditional release of each such indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any such indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which such indemnified party is otherwise entitled to reimbursement
pursuant to the terms of this indemnity agreement, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectuses, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to EDGAR.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the International Managers on the other hand from
the offering of the
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<PAGE>
International Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions which 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 International Managers
on the other hand in connection with the offering of the International
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, bear to the aggregate initial public offering price of
the Securities as set forth on such cover. The relative fault of the Company on
the one hand and the International Managers on the other hand shall be
determined by reference to, among other things, whether 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 by the
International Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the International Managers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the International Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 7, no International Manager shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Manager has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls: an International Manager
-31-
<PAGE>
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such International Manager, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The International
Managers' respective obligations to contribute pursuant to this Section 7 are
several in proportion to the number of Initial International Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
- --------
Agreement and the International Pricing Agreement, or contained in certificates
of officers of the Company submitted pursuant to Section 5 hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company, and shall survive delivery of the International
Securities to the International Managers.
SECTION 9. Termination of Agreement.
------------------------
(a) The U S. Representatives may terminate this Agreement, by notice
to the Company, at any time at or prior to Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the International Prospectus, any material
adverse change in or affecting the business, properties, financial condition or
results of operations of the Company or the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectuses, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or elsewhere, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the reasonable judgment of
the Lead Managers, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been
-32-
<PAGE>
declared by either Federal or New York authorities. As used in this Section
9(a), the term "International Prospectus" means the International Prospectus in
the form first used by the International Managers to confirm sales of the
International Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 6 and 7 shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If
----------------------------------------------------
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the International Securities which it or they are
obligated to purchase under this Agreement and the International Pricing
Agreement (the "Defaulted Securities"), the Lead Managers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of International Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Lead Managers or the Company shall
have the right to postpone Closing Time or a Date of Delivery for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectuses or in any other documents or arrangements. As used
herein, the term "International Manager" includes any person substituted for an
International Manager under this Section 10.
-33-
<PAGE>
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, 25 Ropemaker Street, London EC2Y 9LY, attention of Syndicate Department;
and notices to the Company shall be directed to it at Infinity Broadcasting
Corporation, 600 Madison Avenue, New York, New York 10022, attention of
President.
SECTION 12. Parties. This Agreement and the International Pricing
-------
Agreement shall each inure to the benefit of and be binding upon the
International Managers and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement or the International Pricing Agreement
is intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or the International
Pricing Agreement or any provision herein or therein contained. This Agreement
and the International Pricing Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the
International Managers and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any International Manager shall be deemed to be
a successor by reason merely of such purchase.
SECTION 13. Compliance with U.K. Law. Each International Manager
------------------------
represents and agrees that it has not offered or sold and will not offer or sell
any International Securities to persons in the United Kingdom prior to admission
of the shares of Class A Common Stock of the Company to listing in accordance
with Part IV of the Financial Services Act 1986 (the "Act") except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 or the Act; it has complied and
will comply with all applicable provisions of the Act with respect to anything
done by it in relation to the shares of Class A Common Stock in, from or
otherwise involving the United Kingdom; and it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the shares of Class A Common Stock, other than any
document which consists of or any part of listing particulars, supplementary
listing particulars or any other document required or permitted to be published
by listing rules under Part IV of the Act, to a
-34-
<PAGE>
person who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on.
SECTION 14. Compliance with Other Laws. Each International Manager
--------------------------
acknowledges that no action has been or will be taken in any jurisdiction by
such International Manager or the Company that would permit a public offering of
the shares of Class A Common Stock, or possession or distribution of the
International Prospectus, in preliminary or final form, in any jurisdiction
when, or in any circumstances in which, action for that purpose is required,
other than in the United States. Each International Manager will comply with
all applicable laws and regulations, and make or obtain all necessary filings,
consents or approvals, in each jurisdiction in which such International Manager
purchases, offers, sells or delivers International Securities (including,
without limitation, any applicable requirements relating to the delivery of the
International Prospectus, in preliminary or final form), in each case at such
International Manager's own expense. In connection with sales of and offers to
sell International Securities made by such International Manager, such
International Manager will furnish to each person to whom any such sale or offer
is made a copy of the current International Prospectus (in preliminary or final
form and as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto).
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE
----------------------
INTERNATIONAL PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
-35-
<PAGE>
MERRILL LYNCH INTERNATIONAL LIMITED
GOLDMAN SACHS INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
By: MERRILL LYNCH INTERNATIONAL LIMITED
By
----------------------------
Authorized Signatory
For themselves and as Lead Managers of the other
International Managers named in Schedule A hereto.
-36-
<PAGE>
SCHEDULE A
Number of
Initial
Name of International Manager Securities
----------------------------- ----------
Merrill Lynch International Limited . . . . . . . .
Goldman Sachs International. . . . . . . . . . . .
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . . . . . . .
Alex. Brown & Sons Incorporated. . . . . . . . . .
Smith Barney Inc. . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . 1,700,000
=========
<PAGE>
Exhibit A
1,700,000 Shares
INFINITY BROADCASTING CORPORATION
(a Delaware corporation)
Class A Common Stock
(Par Value $.002 Per Share)
International Pricing Agreement
-------------------------------
__________ __, 1995
Merrill Lynch International Limited
Goldman Sachs International
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as Lead Managers of the several International Managers
named in the within-mentioned International Purchase Agreement
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
Dear Sirs:
Reference is made to the International Purchase Agreement dated
__________ __, 1995 (the "International Purchase Agreement") relating to the
purchase by the several international managers named in Schedule A thereto (the
"International Managers"), for whom Merrill Lynch International Limited, Goldman
Sachs International, Alex. Brown & Sons Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation and Smith Barney Inc. are acting as lead
managers (the "Lead Managers"), of the above shares of Class A Common Stock (the
"Securities"), of Infinity Broadcasting Corporation, a Delaware corporation (the
"Company").
Pursuant to Section 2 of the International Purchase Agreement, the
Company agrees with each International Manager as follows:
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $______.
2. The purchase price per share for the Securities to be paid by the
several International Managers shall be
<PAGE>
$_____, being an amount equal to the initial public offering price set
forth above less $____ per share.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED IN SAID STATE.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
INFINITY BROADCASTING CORPORATION
By
---------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL LIMITED
GOLDMAN SACHS INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SMITH BARNEY INC.
By: MERRILL LYNCH INTERNATIONAL LIMITED
By
------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other
International Managers named in Schedule A hereto.
-2-
<PAGE>
Exhibit B
"LOCK-UP" LETTER
Merrill Lynch International Limited
Goldman Sachs International
Alex. Brown & Sons Incorporated
Donaldson, Lufkin & Jenrette
Securities Corporation
Smith Barney Inc.
as Lead Managers of the several
International Managers to be named in the
within-mentioned International Purchase Agreement
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
Re: Proposed Public Offering by Infinity Broadcasting
-------------------------------------------------
Corporation
-----------
Dear Sirs:
The undersigned, a stockholder of Infinity Broadcasting Corporation, a
Delaware corporation (the "Company"), understands that Merrill Lynch
International Limited ("Merrill Lynch") proposes to enter into an International
Purchase Agreement (the "International Purchase Agreement") with the Company
providing for the public offering of shares (the "Securities") of the Company's
Class A common stock, par value $.002 per share (the "Class A Common Stock"),
and a related International Pricing Agreement (the "International Pricing
Agreement") which will set forth, among other things, the initial public
offering price of the Securities. In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the International Purchase Agreement that, during a period of 90 days
from the date of the International Pricing Agreement, the undersigned will not,
without the prior written consent of Merrill Lynch and the other lead managers,
if any, of the several international managers named in the International
Purchase Agreement, directly or indirectly, sell, grant any option for the sale
of, or otherwise dispose of or transfer, any shares of the Company's Class A
Common Stock or any securities convertible into or exchangeable or exercisable
for Class A Common Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, or request the filing of any registration
<PAGE>
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing.
This letter shall become effective concurrently with the execution and
delivery of the International Purchase Agreement.
Very truly yours,
Signature:_____________________
Print Name:____________________
-2-
[ LETTERHEAD OF DEBEVOISE & PLIMPTON ]
October 18, 1995
Infinity Broadcasting Corporation
600 Madison Avenue
New York, New York 10022
Infinity Broadcasting Corporation
Registration Statement on Form S-3
(Registration No. 33-62711)
-----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Infinity Broadcasting
Corporation, a Delaware corporation (the "Company"), in connection with
the preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), of
a Registration Statement on Form S-3 (Registration No. 33-62711), as amended
(the "Registration Statement"), relating to 8,500,000 share of the Company's
Class A Common Stock, par value $.002 per share (the "Class A Common Stock"),
being offered by the Company and an additional 1,275,000 share of Class A Common
Stock solely to cover over-allotments (collectively, the "Shares").
Capitalized terms used but not defined herein are used as defined in the
Registration Statement.
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such records,
documents, certificates
<PAGE>
and other instruments as in our judgment are necessary or appropriate to
enable us to render the opinion set forth below.
Based upon the foregoing, we are of the opinion that upon
issuance, delivery and payment therefor in the manner described in the
Registration Statement and in accordance with the terms of the U.S. Purchase
Agreement and International Purchase Agreement (the forms of which are filed
as Exhibits 1.01 and 1.02 to the Registration Statement, respectively), the
Shares will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement and to the use of our name under the heading
"Legal Matters" in the Prospectuses forming a part thereof. In giving such
consent, we do not thereby concede that we are within the category of person
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
EXHIBIT 23.01
CONSENT OF INDEPENDENT CERFTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
INFINITY BROADCASTING CORPORATION:
We consent to the use of our report incorporated herein by reference and to
the references to our firm under the headings "Summary Consolidated Financial
Information" and "Experts" in each of the Prospectuses.
KPMG PEAT MARWICK LLP
New York, New York
October 18, 1995
EXHIBIT 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 28, 1995 relating to the consolidated financial statements of Alliance
Broadcasting, L.P., which appears on page F-2 of the Current Report on Form 8-K
of Infinity Broadcasting Corporation dated September 27, 1995. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
San Francisco, California
October 18, 1995
