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[Revised--05/05/99]
Clear Channel Communications, Inc.
Underwriting Agreement
New York, New York
, 1999
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Clear Channel Communications, Inc., a Texas corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of shares of Common Stock, $0.10 par value,
("Common Stock"), set forth in Schedule I hereto of the Company, and the
persons named in Schedule I hereto (the "Selling Stockholders") propose to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, the number of shares
of Common Stock, $0.10 par value, ("Common Stock"), set forth in Schedule I
hereto of the Company, (said shares to be issued and sold by the Company and
shares to be sold by the Selling Stockholders collectively being hereinafter
called the "Underwritten Securities"). The Company also proposes to grant to
the Underwriters an option to purchase up to the number of additional shares of
Common Stock indicated on Schedule II (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms. To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used
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herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act (excluding the Company's
Registration Statement on Form S-4 dated January 6, 1998) on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
(excluding the Company's Registration Statement on Form S-4 dated January 6,
1998) after the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
In addition, to the extent that there is not more than one Selling Stockholder
named in Schedule I, the term Selling Stockholder shall mean either the
singular or the plural. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate.
1. Representations and Warranties. (i) The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in Section 16
hereof.
(a) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: (x) a
final prospectus supplement relating to the Securities in accordance
with Rules 430A and 424(b), (y) prior to the Effective Date of such
registration statement, an amendment to such registration statement,
including the form of final prospectus supplement, or (z) a final
prospectus in accordance with Rules 415 and 424(b). In the case of
clause (x), the Company has included in such registration statement,
as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at
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the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined
herein), and on any date on which shares sold in respect of the
Underwriters' over-allotment option are purchased, if such date is not
the Closing Date (a "Settlement Date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any Settlement Date, the Final Prospectus (together with any
supplement thereto) will not, include any 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
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished (i) herein or (ii) in writing to
the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood that the information referred to in this clause
(b)(ii) shall be limited to the information described in Section 7(b)
hereof.
(c) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Texas, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus; each of the
subsidiaries of the Company as listed on Schedule III hereto
(collectively, the "Subsidiaries") has been duly organized and is
validly existing in good standing under the laws of the jurisdiction
of its organization, with power and authority to own or lease its
properties and conduct its business as described in the Final
Prospectus; the Company and each of the Subsidiaries are duly
qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification and a failure to
qualify would have a materially adverse effect upon the business or
financial condition of the Company and the Subsidiaries taken as a
whole; except as set forth on Schedule III hereto, or as
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described in the Final Prospectus, the outstanding shares of capital
stock of each of the Subsidiaries owned by the Company or a Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company or another subsidiary free
and clear of all liens, encumbrances and security interests and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding.
(d) The authorized shares of Common Stock of the Company have
been duly authorized. The outstanding shares of Common Stock of the
Company have been duly authorized and are validly issued, fully-paid
and non-assessable. The Securities to be issued and sold by the
Company have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Securities or the issue and sale thereof.
Neither the filing of the Registration Statement nor the offering or
sale of the Securities as contemplated by this Agreement gives rise to
any rights, other than those which have been waived or satisfied, for
or relating to the registration of any shares of Common Stock.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its
terms.
(f) The information set forth under the caption
"Capitalization" in the Final Prospectus is true and correct. The
Securities conform in all material respects with the statements
concerning them in the Final Prospectus.
(g) The Commission has not issued an order preventing or
suspending the use of any Basic Prospectus, Preliminary Final
Prospectus or Final Prospectus relating to the proposed offering of
the Securities nor instituted proceedings for that purpose.
(h) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules
incorporated by reference in the Final Prospectus present fairly the
financial position and the results of operations of the Company and
its subsidiaries consolidated, at the indicated dates and for the
indicated periods. Such financial statements have been prepared in
accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The selected and summary financial and
statistical data included in the Final Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the financial statements incorporated
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by reference therein and the books and records of the Company. The pro
forma financial information included in the Final Prospectus present
fairly the information shown therein, have been properly compiled on
the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(i) Except for those license renewal applications of the
Company or its Subsidiaries currently pending before the Federal
Communications Commission (the "FCC"), or as set forth in the Final
Prospectus, there is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency which could
reasonably be likely to result in any material adverse change in the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) of the Company and of
the Subsidiaries (taken as a whole).
(j) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial
statements hereinabove described (or as described in the Final
Prospectus) subject to no material lien, mortgage, pledge, charge or
encumbrance of any kind, except those reflected in such financial
statements or as described in the Final Prospectus or set forth on
Schedule III. The Company and the Subsidiaries occupy their leased
properties under valid leases with such exceptions as are not material
to the Company and the Subsidiaries taken as a whole and do not
materially interfere with the use made and proposed to be made of such
properties by the Company and the Subsidiaries.
(k) The Company and the Subsidiaries have filed all Federal,
State and foreign income tax returns which have been required to be
filed and have paid all taxes indicated by said returns; and all
assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith. The
Company has no knowledge of any tax deficiency that has been or might
be asserted against the Company.
(l) Since the last date as of which information is given in
the Final Prospectus, as it may be amended or supplemented, there has
not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations,
condition (financial or otherwise) or business prospects of the
Company and its Subsidiaries (taken as a whole), whether or not
occurring in the ordinary course of business, other than general
economic and industry conditions changes in the ordinary course of
business and changes or transactions described or contemplated in the
Final Prospectus and there has not been any material definitive
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agreement entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and
transactions contemplated by the Final Prospectus, as it may be
amended or supplemented. None of the Company or the Subsidiaries have
any material contingent obligations which are not disclosed in the
Final Prospectus, as it may be amended or supplemented.
(m) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time or both, will be in default
under its certificate or articles of incorporation, by-laws or
partnership agreement or any agreement, lease, contract, indenture or
other instrument or obligation to which it is a party or by which it,
or any of its properties, is bound and which default is of material
significance in respect of the business or financial condition of the
Company and its Subsidiaries (taken as a whole). The execution and
delivery of this Agreement and the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust or other material agreement or instrument to which the Company
or any Subsidiary is a party, or of the certificate or articles of
incorporation, by-laws or partnership agreement of the Company or any
order, rule or regulation applicable to the Company or any Subsidiary,
or of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction, except in all cases a
conflict, breach or default which would not have a materially adverse
effect on the business or financial condition of the Company and the
Subsidiaries (taken as a whole).
(n) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the National Association of
Securities Dealers, Inc. or the New York Stock Exchange or may be
necessary to qualify the Securities for public offering by the
Underwriters under State securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(o) The Company and each of the Subsidiaries hold all
material licenses, certificates and permits from governmental
authorities, including without limitation, the FCC, which are
necessary to the conduct of their businesses; and neither the Company
nor any of the Subsidiaries has received notice of any infringement of
any material patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company and the Subsidiaries (taken as a whole).
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(p) Ernst & Young LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
PricewaterhouseCoopers LLP and KPMG Peat Marwick LLP, each of whom
have certified certain of the financial statements incorporated by
reference in the Final Prospectus, are to the knowledge of the Company
independent public accountants as required by the Act and the Rules
and Regulations.
(q) To the Company's knowledge, there are no affiliations or
associations between any member of the National Association of
Securities Dealers and any of the Company's officers, directors or 5%
or greater security holders except as otherwise disclosed in writing
to BT Alex. ▇▇▇▇▇ Incorporated or set forth in Schedule III hereto.
(r) Neither the Company, nor to the Company's knowledge, any
of the Subsidiaries, has taken or may take, directly or indirectly,
any action designed to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of the Securities.
(s) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
(t) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) The Company and each of its Subsidiaries carry, or are
covered by, insurance, including self insurance, in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is
customary for companies engaged in similar industries.
(v) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) for which the Company
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would have any liability has occurred and is continuing; the Company
has not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or
by failure to act, which would cause the loss of such qualification;
except where any such noncompliance, "reportable event", liability or
nonqualification, alone or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(w) The information set forth in the Final Prospectus under
the caption "Summary--Recent Developments" is true and correct in all
material respects.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed solely to be a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder represents and warrants to, and
agrees with each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the
Securities to be sold by such Selling Stockholder hereunder and upon
sale and delivery of, and payment for, such Securities, as provided
herein, such Selling Stockholder will convey to the Underwriters good
and marketable title to such Securities, free and clear of all liens,
encumbrances, equities and claims whatsoever.
(b) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(c) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by
such Selling Stockholder of the transactions contemplated herein,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained.
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(d) Neither the sale of the Securities being sold by such
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or [the charter or by-laws of such Selling
Stockholder or] the terms of any indenture or other agreement or
instrument to which such Selling Stockholder [or any of its
subsidiaries] is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder [or any of its subsidiaries] of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling Stockholder [or
any of its subsidiaries].
(e) Such Selling Stockholder has no reason to believe that
the representations and warranties of the Company contained in this
Section 1 are not true and correct, is familiar with the Registration
Statement and has no knowledge of any material fact, condition or
information not disclosed in the Prospectus or any supplement thereto
which has adversely affected or may adversely affect the business of
the Company or any of its subsidiaries; and the sale of Securities by
such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of its subsidiaries which is
not set forth in the Prospectus or any supplement thereto.
(f) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any supplements thereto
made in reliance upon and in conformity with information furnished in
writing to the Company by any Selling Stockholder specifically for use
in connection with the preparation thereof, such Selling Stockholder
hereby makes the same representations and warranties to each
Underwriter as the Company makes to such Underwriter under paragraph
(i)(b) of this Section.
Any certificate signed by [any officer of] any Selling
Stockholder and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities shall be deemed
a representation and warranty by such Selling Stockholder, as to matters
covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees and the Selling Stockholders agree to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase at the
purchase price per share set forth on Schedule I, the number of shares set
forth opposite such Underwriter's name in Schedule II.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly,
up to the number of shares of Option Securities set forth on Schedule I at the
same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the
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Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the Final Prospectus upon written or telegraphic notice by
the Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. Delivery of certificates for the shares of
Option Securities, and payment therefor, shall be made as provided in Section 3
hereof. The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made on the date and at the
time specified in Schedule I hereto (or at such time on such later date not
more than three Business Days after the foregoing date as the Representatives
shall designate), which date and time may be postponed by agreement among the
Representatives, the Company and the Selling Stockholders or as provided in
Section 8 hereof (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company and each of the Selling Stockholders to or upon the
order of the Company and the Selling Stockholders by wire transfer payable in
same-day funds to the accounts specified by the Company and the Selling
Stockholders. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Securities to be purchased by them from such Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved
in further transfers.
If the option provided for in Section 2(b) hereof is
exercised after the third business day prior to the Closing Date, the Company
will deliver the Option Securities (at the expense of the Company) to the
Representatives on the date specified by the Representatives (which shall be
within three Business Days after exercise of said option) for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the Representatives
on the settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 5 hereof.
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4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its reasonable efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object in writing. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(i) when the Registration Statement, if not effective at the Execution
Time, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective,
(iv) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or of any
additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its reasonable
efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement or, if appropriate,
a filing under the Exchange Act, which will correct such statement or
omission or effect such compliance and (ii) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
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(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering, provided that the Company will not be required to file a
consent to service of process in any state in which it is not
qualified or for which consent has not been given.
(f) The Company will not, without the prior written consent
of ____________________, offer, sell, contract to sell, pledge or
otherwise dispose of, or file a registration statement with the
Commission in respect of any shares of capital stock of the Company or
any securities convertible into or exercisable or exchangeable for
such capital stock, or publicly announce an intention to effect any
such transaction, for a period of 30 days after the date of this
Agreement, other than (i) any shares of Common Stock to be sold
hereunder and Common Stock to be issued in connection with the
Company's proposed mergers with [Jacor Communications, Inc. ("Jacor")
and Dame Media, Inc.], (ii) any option or warrant or the conversion of
a security outstanding on the date hereof, (iii) the issue and sale of
shares of Common Stock pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect on the date hereof, (iv) the issue of shares of Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding on the date hereof and (v) except for item (i) above, the
offer or sale of equity securities in connection with the acquisition
of stock or assets of another person, provided such equity securities
are not issued within the 30-day period mentioned above.
(g) The Company will use its best efforts to list, subject to
notice of issuance, the Securities on the New York Stock Exchange.
(h) The Company shall cause each of ▇. ▇▇▇▇▇ ▇▇▇▇ and ▇.▇.
▇▇▇▇▇▇▇ to furnish to you, on or prior to the Closing Date, a letter
or letters, in form and substance satisfactory
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to the Underwriters, pursuant to which each such person shall agree
not to offer, sell, sell short or otherwise dispose of any shares of
Common Stock of the Company or other capital stock of the Company, or
any other securities convertible, exchangeable or exercisable for
common stock or derivative of common stock owned by such person or
request the registration for the offer or sale of any of the foregoing
(or as to which such person has the right to direct the disposition
of) for a period of 30 days after the date of this Agreement, directly
or indirectly, except with the prior written consent of
____________________, except for securities subject to an existing
pledge or margin account ("Lockup Agreements") or securities disposed
of as bona fide gifts or transferred to charitable trusts, charitable
remainder trusts, family limited partnerships or other estate planning
entities approved by ____________________, provided that any recipient
or beneficiary of shares so transferred executes a Lockup Agreement on
substantially similar terms as would apply to the transferor of such
shares if such shares had not been so transferred.
(i) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Securities in
such a manner as would require the Company or any of the Subsidiaries
to register as an investment company under the Investment Company Act
of 1940, as amended (the "1940 Act").
(j) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(k) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
(ii) Each Selling Stockholder agrees with the several
Underwriters that:
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another person, provided such equity securities are not issued within
the 30-day period mentioned above.
(a) Such Selling Stockholder will not take any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter
or dealer may be required under the Act, of (i) any material change in
the Company's condition (financial or otherwise), prospects, earnings,
business or properties, (ii) any change in information in the
Registration Statement or the Prospectus relating to such Selling
Stockholder or (iii) any new material information relating to the
Company or relating to any matter stated in the Prospectus which comes
to the attention of such Selling Stockholder.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and
any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their respective obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
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(b) The Company shall have furnished to the Representatives
the opinion of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for
the Company, dated the Closing Date, to the effect that:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Texas, with
corporate power and authority to own or lease its properties
and conduct its business as described in the Final
Prospectus; and the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and, to the
best of such counsel's knowledge, except (A) as reflected in
the Company's financial statements, (B) as described in the
Registration Statement or (C) as set forth on Schedule III
hereto, are owned by the Company or a Subsidiary; and, to
such counsel's knowledge, except as otherwise disclosed, the
outstanding shares of capital stock of each of the
Subsidiaries are owned free and clear of all liens,
encumbrances and security interests and no options, warrants
or other rights to purchase, agreements or other obligations
to issue, or other rights to convert any obligations into any
shares of capital stock or of ownership interests in the
Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the
Final Prospectus; the authorized shares of its Common Stock
have been duly authorized; the outstanding shares of its
Common Stock have been duly authorized and validly issued and
are fully paid and non-assessable; all of the Securities
conform in all material respects to the description thereof
contained in the Final Prospectus; the Securities, including
the Option Securities, if any, to be sold by the Company
pursuant to this Agreement have been duly authorized and will
be validly issued, fully paid and non-assessable when issued
and paid for as contemplated by this Agreement; and, to the
knowledge of such counsel, no preemptive rights of
stockholders exist with respect to any of the Securities or
the issue and sale thereof.
(iii) Except as described in the Final Prospectus, to the
knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or
otherwise, which has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue to
them, or to permit them to underwrite the sale of, any of the
Securities or the right to have any Common Stock or other
securities of the Company included in the Registration
Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act
of any shares of Common Stock or other securities of the
Company.
(iv) The Registration Statement has become effective
under the Act and, to the best of the knowledge of such
counsel, no stop order proceedings with respect thereto have
been instituted or are pending or threatened under the Act.
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(v) The Registration Statement, all Preliminary Final
Prospectuses, the Final Prospectus and each amendment or
supplement thereto and documents incorporated by reference
therein (each as amended to date) comply as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable and the applicable rules and
regulations thereunder (except that such counsel need express
no opinion as to, the statistical information contained in
the Final Prospectus or financial statements, schedules and
other financial information incorporated by reference
therein).
(vi) The statements under the captions "Prospectus
Summary--Recent Developments--Jacor Merger" and "--Universal
Outdoor Merger", "The Jacor Merger" and "Description of
Common Stock" in the Final Prospectus, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, fairly and correctly summarize the
information called for with respect to such documents and
matters in all material respects.
(vii) To such counsel's knowledge, there are no contracts
or documents required to be filed as exhibits to the
Registration Statement or described in the Registration
Statement or the Final Prospectus (excluding any document
incorporated therein by reference that is not material when
considered in the context of the offering of the Securities)
which are not so filed or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Final Prospectus (excluding any document
incorporated therein by reference that is not material when
considered in the context of the offering of the Securities)
are fairly summarized in all material respects.
(viii) To such counsel's knowledge, there are no material
legal proceedings pending or threatened against the Company
or any of the Subsidiaries which is of a character required
to be disclosed in the Final Prospectus and which has not
been properly disclosed therein.
(ix) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do
not and will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under,
the Restated Articles of Incorporation, as amended, or
By-laws, as amended, of the Company, or to such counsel's
knowledge, any agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries may be bound (other than licenses
or permits granted by the FCC, on which such counsel need not
express any opinion), except a conflict, breach or default
which would not have a materially adverse effect on the
business or financial condition of the Company and its
subsidiaries taken as a whole.
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(x) This Agreement has been duly authorized, executed
and delivered by the Company.
(xi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body having jurisdiction
over the Company is necessary in connection with the
execution and delivery of this Agreement and the consummation
of the transactions herein contemplated (other than as may be
required by the NASD or New York Stock Exchange or as
required by State securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have
been obtained or made, specifying the same.
(xii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated
by this Agreement, and application of the net proceeds
therefor as described in the Final Prospectus, required to
register as an investment company under the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to matters
governed by the laws of states other than Texas or Federal laws on
local counsel in such jurisdictions, provided that in each case such
counsel shall state that they believe that they and the Underwriters
are justified in relying on such other counsel and (B) as to matters
of fact, on certificates of responsible officers of the Company and
certificates or other written statements of officers or departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and any
Subsidiary. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that the
Registration Statement, as of the time it became effective under the
Act, the Final Prospectus or any amendment or supplement thereto, on
the date it was filed pursuant to Rule 424(b) and the Registration
Statement and the Final Prospectus, or any amendment or supplement
thereto, as of the Closing Date or any Settlement Date, as the case
may be, 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 (except that such counsel
need express no view as to matters pertaining to statistical
information contained in the Final Prospectus or financial statements,
schedules and other financial information contained or incorporated by
reference in the Final Prospectus). With respect to such statement,
such counsel may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
(c) The Company shall also have received on the Closing Date
the opinion of local counsel for the Company experienced in such
matters, in certain of the major jurisdictions in which the Company
conducts business, dated the Closing Date or any Settlement Date,
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as the case may be, addressed to the Underwriters substantially to the
effect that the statements under the caption "Risk Factors--Government
Regulation" and "Risk Factors--Restrictions on Tobacco Advertising;
Alcohol Advertising", insofar as such statements constitute a summary
of regulatory matters in the applicable jurisdiction relating to the
outdoor advertising industry, fairly describes the regulatory matters
relating to the Company's business as that business is conducted in
the applicable metropolitan area.
(d) The Company shall have received on the Closing Date or
any Settlement Date, as the case may be, the opinions of Wiley, Rein &
Fielding, special FCC counsel to the Company, and ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P, special FCC counsel to Jacor, each dated the Closing Date or
any Settlement Date, as the case may be, addressed to the Company as
is reasonably acceptable to the Underwriters.
(e) The Selling Stockholders shall have requested and caused
, counsel for the Selling Stockholders, to have furnished to the
Representatives their opinion dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) this Agreement and the Custody Agreement and
Power of Attorney have been duly [authorized,] executed and
delivered by the Selling Stockholders, the Custody Agreement
is valid and binding on the Selling Stockholders and each
Selling Stockholder has full legal right and authority to
sell, transfer and deliver in the manner provided in this
Agreement and the Custody Agreement the Securities being sold
by such Selling Stockholder hereunder;
(ii) the delivery by each Selling Stockholder to the
several Underwriters of certificates for the Securities being
sold hereunder by such Selling Stockholder against payment
therefor as provided herein, will pass good and marketable
title to such Securities to the several Underwriters, free
and clear of all liens, encumbrances, equities and claims
whatsoever;
(iii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by any Selling Stockholder of the
transactions contemplated herein, except such as may have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold
by any Selling Stockholder nor the consummation of any other
of the transactions herein contemplated by any Selling
Stockholder or the fulfillment of the terms hereof by any
Selling Stockholder will conflict with, result in a breach or
violation of, or constitute a default under any law or [the
charter or By-laws of the Selling Stockholder or] the terms
of any
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indenture or other agreement or instrument known to such
counsel and to which any Selling Stockholder [or any of its
subsidiaries] is a party or bound, or any judgment, order or
decree known to such counsel to be applicable to any Selling
Stockholder [or any of its subsidiaries] of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over any Selling Stockholder
[or any of its subsidiaries].
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters, and (B) as to
matters of fact, to the extent they deem proper, on certificates of
[responsible officers of] the Selling Stockholders and public
officials.
(f) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date or any Settlement Date, as the case
may be, with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company and each Selling Stockholder
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Executive Officer or
the President and the principal financial or accounting officer of the
Company, dated the Closing Date or any Settlement Date, as the case
may be, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date or any Settlement
Date, as the case may be, with the same effect as if made on
the Closing Date or any Settlement Date, as the case may be,
and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date or any Settlement
Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse
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change in the condition (financial or otherwise), prospects,
business or properties of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(h) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by [the Chairman of the Board or
the President and the principal financial or accounting officer of]
such Selling Stockholder, dated the Closing Date, to the effect that
the signer[s] of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that the representations and
warranties of such Selling Stockholder in this Agreement are true and
correct in all material respects on and as of the Closing Date to the
same effect as if made on the Closing Date.
(i) At the Execution Time and at the Closing Date or any
Settlement Date, as the case may be, Ernst & Young LLP, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, PricewaterhouseCoopers LLP and KPMG Peat Marwick LLP
shall have furnished to the Representatives letters dated as of the
Execution Time and the Closing Date or any Settlement Date, as the
case may be, in form and substance satisfactory to the
Representatives.
(j) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of Exhibit A
hereto from each person listed on Schedule I addressed to the
Representatives.
(k ) The Company shall have caused the Securities to be
approved for listing upon official notice of issuance on the New York
Stock Exchange.
(l) Prior to the Closing Date or any Settlement Date, as the
case may be, the Company and the Selling Stockholders shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(m) On or prior to the Execution Time, the New York Stock
Exchange shall have approved the Underwriters' participation in the
distribution of the Securities to be sold by the Selling Stockholders
in accordance with Rule 393 of the New York Stock Exchange.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date or any Settlement
Date, as the case may be, by the Representatives. Notice of
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such cancelation shall be given to the Company and each of the Selling
Stockholder in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, at Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through ____________________ on demand for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities, but the Company shall
not be liable in any event to any of the Underwriters for damages on account of
loss of anticipated profits from the sale of the Securities.
If the Company is required to make any payments to the
Underwriters under this Section 7 because of any Selling Stockholder's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Stockholders pro rata in
proportion to the percentage of Securities to be sold by each shall reimburse
the Company on demand for all amounts so paid.
Notwithstanding the foregoing, (i) each Selling Stockholder
and the Company shall be responsible for its own internal administrative and
similar costs, which shall not constitute Registration Expenses, (ii) each
Selling Stockholder shall be responsible for the legal fees and expenses of its
own counsel (except as provided in clause (viii) of the definition of
Registration Expenses), (iii) each Selling Stockholder shall be responsible for
all underwriting discounts and commissions, selling or placement agent or
broker fees and commissions, and transfer taxes, if any, in connection with the
sale of securities by such Selling Stockholder, and (iv) the Selling
Stockholders shall be jointly and severally responsible for all out-of-pocket
costs and expenses of the Company and its officers and employees incurred in
connection with providing the assistance and/or attending analyst or investor
presentations or any "road show" undertaken in connection with the registration
and/or marketing of any Registrable Securities as contemplated in Section
2.6(g) of the Registration Rights Agreement.
7. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any
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of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as reasonably incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that with respect to any untrue statement or omission of
material fact made in any Preliminary Final Prospectus, the indemnity agreement
contained in this Section 7(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstance
where (w) the Company had previously furnished copies of the Final Prospectus
to the Representatives, (x) delivery of the Final Prospectus was required by
the Act to be made to such person, (y) the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in the
Preliminary Final Prospectus was corrected in the Final Prospectus and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the Final
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls the
Company or any Underwriter within the meaning of either the Act or the Exchange
Act and each other Selling Stockholder, if any, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors or director nominees, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the third and sixth paragraphs under the
heading "Underwriting" relating to
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concessions and reallowances and to stabilization, in any Preliminary Final
Prospectus or the Final Prospectus, constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity.
(d) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the prejudice by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified
parties shall have the right to employ a total of one separate counsel (and, if
reasonably necessary, one additional local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or, (iii) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(e) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the Underwriters
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Under writers may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting
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discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters here under and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay within 24 hours for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase within 24 hours all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Selling
Stockholders or the Company. In the event of a default by any Underwriter as
set forth in this Section 8, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall
determine in order that the required
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changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement may be terminated by you by
notice to the Company, as follows:
(a) at any time prior to the earlier of (i) the time the
Common Stock is released by you for sale by notice to the
Underwriters, or (ii) 11:30 A.M. on the date of this Agreement.
(b) at any time after the Execution Time and prior to the
Closing Date if any of the following has occurred: (i) any material
adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise,
of the Company and its Subsidiaries taken as a whole or the Company,
its Subsidiaries, Jacor and Jacor's subsidiaries taken as a whole
after giving pro forma effect to the Company's merger with Jacor, or
the earnings, business affairs, management or business prospects of
the Company and its Subsidiaries taken as a whole or the Company, its
Subsidiaries, Jacor and Jacor's Subsidiaries, taken as a whole after
giving effect to the Company's merger with Jacor, whether or not, in
any such case, arising in the ordinary course of business, (ii) any
outbreak of hostilities or other national or international calamity or
crisis or unforeseen change in economic or political conditions if the
effect of such outbreak, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Common Stock impracticable, (iii)
suspension of trading in securities on the NYSE or limitation on
prices (other than limitations on hours or numbers of days of trading)
for securities on the NYSE, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your
reasonable opinion materially and adversely affects or will materially
or adversely affect the business or operations of the Company and the
Subsidiaries taken as a whole, (v) declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the
United States; or
(c) as provided in Sections 5 and 8 of this Agreement.
This Agreement also may be terminated by you, by notice to
the Company, as to any obligation of the Underwriters to purchase the Option
Securities, upon the occurrence at any time prior to a Settlement Date of any
of the events described in subparagraph (b) above or as provided in Sections 5
and 8 of this Agreement.
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10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of each Selling Stockholder and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
6 and 7 hereof shall survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed or delivered to ____________________, attention of the general counsel
or, if sent to the Company, will be mailed or delivered to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Executive Vice
President.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Securities merely because
of such purchase.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Maryland.
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The Section headings used herein are for
convenience only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date and shall specifically exclude the Company's
Registration Statement on Form S-4 dated January 6, 1998, or the
Company's Registration Statement on Form S-4 to be filed in connection
with the Company's proposed merger with Jacor.
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"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York City or Dallas, Texas.
"Commission" means the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus and shall
specifically exclude the Company's Registration Statement on Form S-4
dated January 6, 1998 and the Company's Registration Statement on Form
S-4 to be filed in connection with the Company's proposed merger with
Jacor.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus and shall specifically exclude the Company's
Registration Statement on Form S-4 dated January 6, 1998 and the
Company's Registration Statement on Form S-4 to be filed in connection
with the Company's proposed merger with Jacor.
"Registration Expenses" shall have the meaning set forth in
the Registration Rights Agreement.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated as of October 8, 1998, among the Company, and
the Selling Stockholders.
"Registration Statement" shall mean the registration
statement referred to in para graph 1(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A and shall specifically exclude the Company's
Registration Statement on Form S-4 dated January 6, 1998 and the
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Company's Registration Statement on Form S-4 to be filed in connection
with the Company's proposed merger with Jacor.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect
to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A.
"Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the initial
registration statement.
"Rules and Regulations" means the rules and regulations of
the Commission.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Clear Channel Communications, Inc.
By:
-------------------------------
Name:
Title:
▇▇▇▇/CHILMARK FUND, L.P.
By: ZC Limited Partnership, general
partner
By: ZC Partnership, general partner
By: ZC Inc., a partner
By:
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By:
----------------------------
Name:
Title:
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated ____________, 1999
Registration Statement No. 333-_____
Representative(s):
Underwritten Maximum Number
Sellers: Securities of Option Securities
------------- --------------------
Clear Channel Communications,
Inc............................................
▇▇▇▇/Chilmark Fund, L.P........................ ------------ -------------
============ =============
Title, Purchase Price and Description of Securities:
Title: Common Stock, $.10 par value
Number of Underwritten Shares:
Price to Public per Share (include accrued dividends, if any):
Price to Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total:
Proceeds to Company per Share:
Proceeds to Company -- total:
Proceeds to Selling Stockholders per Share: $
Proceeds to Selling Stockholders: $
Over-allotment Option: _________ shares
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Other provisions:
Closing Date, Time and Location: ____________, 1999 at 10:00 a.m. at Cravath,
Swaine & ▇▇▇▇▇, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Type of Offering: Non-delayed
Date referred to in Section 4(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): ____________, 1999.
Persons to deliver letters in the form of Exhibit A pursuant to Section 5(j):
▇. ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇
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SCHEDULE II
Maximum
Number of Number
Underwritten of Option
Underwriters Securities Securities
------------ ------------ ----------
------------- -------------
Total........................................................ ============= =============
34
SCHEDULE III
DISCLOSURE ITEMS
35
EXHIBIT A
[Letterhead of officer, director or major shareholder]
Clear Channel Communications, Inc.
Public Offering of Common Stock
____________, 1999
[Underwriters]
c/o [Underwriters]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Clear
Channel Communications, Inc., a Texas corporation (the "Company"), and each of
you as Underwriters named therein, relating to an underwritten public offering
of Common Stock, $.10 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of , offer, sell, contract to sell, pledge or otherwise dispose
of, or file a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act with
respect to, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period of
30 days after the date of this Agreement, other than (i) any option or warrant
or the conversion of a security outstanding on the date hereof and referred to
in the Final Prospectus to which this Agreement relates, (ii) shares of Common
Stock disposed of as bona fide gifts or transferred to a charitable trust,
charitable remainder trust or other estate planning trust approved by
_______________________________, provided that any recipient or beneficiary of
shares so transferred executes an agreement on substantially similar terms as
would apply to the undersigned if such shares had not been so transferred and
(iii) any shares of Common Stock subject to existing pledge or margin accounts.
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If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
shareholder]
[Name and address of officer, director or
major shareholder]