REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of October 8, 1998 (this
"Agreement"), among Clear Channel Communications, Inc., a Texas corporation (the
"Issuer"), and the Holders (as defined herein).
WHEREAS, this Agreement is being entered into in connection with the
closing under the Merger Agreement referred to below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. Terms defined in the Agreement and Plan of
Merger, dated as of October 8, 1998 (the "Merger Agreement"), among the Issuer,
CCU Merger Sub, Inc., a Delaware corporation wholly owned by the Issuer, and
Jacor Communications, Inc., a Delaware corporation (the "Company"), are used
herein as defined therein. In addition, the following terms, as used herein,
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any
successor governmental body or agency.
"Common Stock" means the common stock, par value $.10 per share, of the
Issuer.
"Demand Registration" has the meaning ascribed thereto in
Section 2.2(a).
"Demand Request" has the meaning ascribed thereto in Section 2.2(a).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 2.4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person who owns Registrable Securities and is either
(i) an Investor or (ii) a Person that (A) has agreed to be bound by the terms of
this Agreement as if such Person were an Investor and (B) is (x) a general or
limited partner or limited liability company member, as appropriate, of an
Investor that has received Registrable Securities pursuant to the distribution
to such Person of Registrable Securities in accordance with the agreement of
limited or general partnership or limited liability company agreement, as
appropriate, governing the rights of such Persons, (y) an individual that has a
direct or indirect equity interest in a general partner, a limited partner or a
limited liability company member of an Investor and has received Registrable
Securities directly or indirectly from such Investor or (z) any financial
institution that has received Registrable Securities pursuant to a bona fide
pledge thereof by any Holder referred to in the preceding clauses (x) or (y).
"Investor" means any of the following: (i) Xxxx/Chilmark Fund, L.P., a
Delaware limited partnership, (ii) Samstock, L.L.C., a Delaware limited
liability company, (iii) SZ2 (IGP) Partnership, Illinois general partnership,
and (iv) Xxxxxx Xxxx.
"Permitted Holder" means each of the Xxxx Holders' Agent (or one
representative of the Xxxx Holders that (x) is designated by Xxxx Holders that
hold a majority of the Registrable Securities proposed to be sold by Xxxx
Holders in the applicable offering and (y) is reasonably acceptable to the
Issuer).
"Registrable Securities" means Common Stock acquired by the Holders
pursuant to the Merger (and any shares of stock or other securities into which
or for which such Common Stock may hereafter be changed, converted or exchanged
and any other shares or securities issued to Holders of such Common Stock (or
such shares of stock or other securities into which or for which such shares are
so changed, converted or exchanged) upon any reclassification, share
combination, share subdivision, share dividend, share exchange, merger,
consolidation or similar transaction or event) or otherwise. As to any
particular Registrable Securities, such Registrable Securities shall cease to be
Registrable Securities as soon as (i) such Registrable Securities have been sold
or otherwise disposed of pursuant to a registration statement that was filed
with the Commission in accordance with this Agreement and declared effective
under the Securities Act, (ii) such Registrable Securities shall have been
otherwise sold, transferred or disposed of by a Holder to any Person that is not
a Holder, or (iii) such Registrable Securities shall have ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article 2, including, without limitation, (i) the fees, disbursements and
expenses of the Issuer's counsel and accountants (including in connection with
the delivery of opinions and/or comfort letters) in connection with this
Agreement and the performance of the Issuer's obligations hereunder; (ii) all
expenses, including filing fees, in connection with the preparation, printing
and filing of one or more registration statements hereunder; (iii) the cost of
printing or producing any agreements among underwriters, underwriting
agreements, and blue sky or legal investment memoranda; (iv) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the securities to be
disposed of; (v) transfer agents' and registrars' fees and expenses in
connection with such offering; (vi) all security engraving and security printing
expenses; (vii) all fees and expenses payable in connection with the listing of
the Registrable Securities on any securities exchange or automated interdealer
quotation system on which the Common Stock is then listed; and (viii) all
reasonable fees and expenses of one legal counsel for the Holders in connection
with each of the Required Shelf Registration and the Demand Registration, which
legal counsel shall be selected by Holders owning a majority of the Registrable
Securities then being registered; provided that Registration Expenses shall
exclude (x) 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 any securities, (y) the fees and expenses of counsel for any
Holder (other than pursuant to clause (viii)) and (z) all costs and expenses of
the Issuer incurred as contemplated in Section 2.6(g).
"Required Shelf Registration" has the meaning ascribed thereto in
Section 2.1.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 145" means Rule 145 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Shelf Registration" means the registration under the Securities Act of
a Rule 415 Offering.
"Shelf Registration Statement" means a registration statement intended
to effect a Shelf Registration.
"Xxxx Holders' Agent" has the meaning ascribed thereto in Section 3.11.
"Xxxx Xxxxxx" means an Investor, any Affiliate of an Investor that is a
Holder, and each Person referred to in clause (x) of the definition of "Holder".
Section 1.2. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.1. Shelf Registration. If requested by a Holder or Holders
holding a majority in interest of the Registrable Securities, as soon as
practicable (but in any event not more than 15 days) after such request, the
Issuer shall prepare and file with the Commission a Shelf Registration Statement
on an appropriate form that shall include all Registrable Securities, and may
include securities of the Issuer for sale for the Issuer's own account (the
"Required Shelf Registration"). The Issuer shall use its reasonable best efforts
to cause such Shelf Registration Statement to be declared effective as soon as
practicable after such request. Notwithstanding anything else contained in this
Agreement, the Issuer shall only be obligated to keep such Shelf Registration
Statement effective until the earliest of:
(a) (y) 12 months after the date such Shelf Registration
Statement has been declared effective or (z) the date, which may not be earlier
than 90 days following the date such Registration Statement has been declared
effective, on which the Issuer delivers to the Holders an opinion of counsel,
reasonably acceptable to the Issuer and the Xxxx Holders' Agent, to the effect
that in the opinion of such counsel, sales by a Holder (other than a general
partner of an Investor or Xxxxxx Xxxx) would not be aggregated with sales by
other Holders for purposes of the volume limitations of Rule 144 or 145,
provided that such 12-month period or 90-day period, respectively, shall be
extended by (i) the length of any period during which the Issuer delays in
maintaining the Shelf Registration Statement current pursuant to Section 2.4,
(ii) the length of any period (in which such Shelf Registration Statement is
required to be effective hereunder) during which such Shelf Registration
Statement is not maintained effective, and (iii) such number of days that equals
the number of days elapsing from (x) the date the written notice contemplated by
Section 2.6(e) below is given by the Issuer to (y) the date on which the Issuer
delivers to the Holders of Registrable Securities the supplement or amendment
contemplated by Section 2.6(e) below;
(b) such time as all Registrable Securities have been sold or
disposed of thereunder or sold, transferred or otherwise disposed of to a Person
that is not a Holder; and
(c) such time as all securities that were Registrable
Securities on the date hereof have ceased to be Registrable Securities (the
earliest of (a), (b) and (c) being the "Shelf Termination Date").
The Required Shelf Registration shall not be counted as a Demand
Registration for purposes of Section 2.2 of this Agreement.
Section 2.2. Demand Registration.
(a) Upon written notice to the Issuer from a Holder or Holders
holding a majority in interest of the Registrable Securities (but no later than
the date that is 12 months after the Effective Time) (the "Demand Request")
requesting that the Issuer effect the registration under the Securities Act of
any or all of the Registrable Securities held by such requesting Holders, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, the Issuer shall prepare as soon as practicable and,
within 15 days after such request, file with the Commission a registration
statement with respect to such Registrable Securities and thereafter use its
reasonable best efforts to cause such registration statement to be declared
effective under the Securities Act for purposes of dispositions in accordance
with the intended method or methods of disposition stated in such request within
30 days after the filing of such registration statement.
Notwithstanding any other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their rights
to request registration under this Section 2.2(a) on not more than one occasion
(such registration being referred to herein as the "Demand Registration");
(ii) the method of disposition requested by Holders
in connection with any Demand Registration may not, without the Issuer's written
consent, be a Rule 415 Offering; and
(iii) the Issuer shall not be required to effect the
Demand Registration hereunder if
all securities that were Registrable Securities on the date hereof have ceased
to be Registrable Securities.
(b) Notwithstanding any other provision of this Agreement to
the contrary, a Demand Registration requested by Holders pursuant to this
Section 2.2 shall not be deemed to have been effected, and, therefore, not
requested and the rights of each Holder shall be deemed not to have been
exercised for purposes of paragraph (a) above, (i) if such Demand Registration
has not become effective under the Securities Act or (ii) if such Demand
Registration, after it became effective under the Securities Act, was not
maintained effective under the Securities Act (other than as a result of any
stop order, injunction or other order or requirement of the Commission or other
government agency or court solely on the account of a material misrepresentation
or omission of a Holder) for at least 30 days (or such shorter period ending
when all the Registrable Securities covered thereby have been disposed of
pursuant thereto) and, as a result thereof, the Registrable Securities requested
to be registered cannot be distributed in accordance with the plan of
distribution set forth in the related registration statement. So long as a
Demand Request is made by the Holders within the 12-month period referred to in
Section 2.2(a), the Holders shall not lose their right to their Demand
Registration under Section 2.2 if the Demand Registration related to such Demand
Request is delayed or not effected in the circumstances set forth in this clause
(b).
(c) The Issuer shall have the right to cause the registration
of additional equity securities for sale for the account of the Issuer, but not
for the account of any other person, in the registration of Registrable
Securities requested by the Holders pursuant to Section 2.2(a) above, provided
that if such Holders are advised in writing (with a copy to the Issuer) by the
lead or managing underwriter referred to in Section 2.3(b) that, in such
underwriter's good faith view, all or a part of such Registrable Securities and
additional equity securities cannot be sold and the inclusion of such
Registrable Securities and additional equity securities in such registration
would be likely to have an adverse effect on the price, timing or distribution
of the offering and sale of the Registrable Securities and additional equity
securities then contemplated, then the number of securities that can, in the
good faith view of such underwriter, be sold in such offering without so
adversely affecting such offering shall be allocated pro rata among the
requesting Holders and the Issuer on the basis of the relative number requested
to be included therein by the Issuer and each such Holder; provided that in the
event such a pro rata allocation shall be made in connection with the Demand
Request, the remaining Holders shall be entitled to request one additional
Demand Registration (without needing to make a Demand Request therefor within
the 12-month period referred to in Section 2.2(a)); provided further that in
connection with such additional Demand Registration, if any, the Issuer may not
include additional securities therein for its own account if such inclusion
would result in any reduction in the Registrable Securities proposed to be sold
therein by the Holders. The Holders of the Registrable Securities to be offered
pursuant to paragraph (a) above may require that any such additional equity
securities be included by the Issuer in the offering proposed by such Holders on
the same conditions as the Registrable Securities that are included therein.
(d) Within 7 days after delivery of a Demand Request by a
Holder, the Issuer shall provide a written notice to each Holder (provided that,
if so requested by the Issuer after appropriate notice to the Xxxx Holders'
Agent by the Issuer, the Xxxx Holders' Agent shall provide written notice to
each Xxxx Xxxxxx), advising such Holder of its right to include any or all of
the Registrable Securities held by such Holder for sale pursuant to the Demand
Registration and advising such Holder of procedures to enable such Holder to
elect to so include Registrable Securities for sale in the Demand Registration.
Any Holder may, within 7 days of delivery to such Holder of a notice pursuant to
this Section 2.2(d), elect to so include Registrable Securities in the Demand
Registration by written notice to such effect to the Issuer specifying the
number of Registrable Securities desired to be so included by such Holder.
Section 2.3. Other Matters In Connection With Registrations.
(a) Each Xxxx Xxxxxx shall keep the Xxxx Holders' Agent informed promptly (x)
of the name, address and other contact information of such Xxxx Xxxxxx, (y) of
the number of Registrable Securities held from time-to-time by such Xxxx Xxxxxx,
and (z) of each sale, transfer or other disposition of Registrable Securities
(including the number of shares sold) by each such Xxxx Xxxxxx. The Xxxx
Holders' Agent shall use its reasonable best efforts to keep the Issuer informed
promptly (x) of the name, address and other contact information of each Xxxx
Xxxxxx, (y) of the number of Registrable Securities held from time-to-time by
each such Xxxx Xxxxxx and (z) of each sale, transfer or other disposition of
Registrable Securities (including the number of shares sold) by each such Xxxx
Xxxxxx.
(b) In the event that any public offering pursuant to this
Agreement shall involve, in whole or in part, an underwritten offering, the
Issuer shall have the right to designate an underwriter or underwriters as the
lead or managing underwriters of such underwritten offering who shall be
reasonably acceptable to Holders owning a majority of the Registrable Securities
proposed to be sold therein.
Section 2.4. Certain Delay Rights. Notwithstanding any other provision
of this Agreement to the contrary, if at any time while the Required Shelf
Registration is effective the Issuer provides written notice to each Holder
(whether by notice directly to such Holder or, in the case of the Xxxx Holders,
through the Xxxx Holders' Agent) that in the Issuer's good faith and reasonable
judgment it would be materially disadvantageous to the Issuer (because the sale
of Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or prospectus
supplement would materially interfere with any acquisition, financing or other
material event or transaction in connection with which a registration of
securities under the Securities Act for the account of the Issuer is then
intended or the public disclosure of which at the time would be materially
prejudicial to the Issuer (a "Disadvantageous Condition") for sales of
Registrable Securities thereunder to then be permitted, and setting forth the
general reasons for such judgment, the Issuer may refrain from maintaining
current the prospectus contained in the Shelf Registration Statement until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver to each Holder (directly or, in the case of the Xxxx Holders,
through the Xxxx Holders' Agent)). Furthermore, notwithstanding anything else
contained in this Agreement, with respect to any registration statement filed,
or to be filed, pursuant to Section 2.2, if the Issuer provides written notice
to each Holder (whether by notice directly to such Holder or, in the case of the
Xxxx Holders, through the Xxxx Holders' Agent) that in the Issuer's good faith
and reasonable judgment it would be materially disadvantageous to the Issuer
(because of a Disadvantageous Condition) for such a registration statement to be
maintained effective, or to be filed and become effective, and setting forth the
general reasons for such judgment, the Issuer shall be entitled to cause such
registration statement to be withdrawn or the effectiveness of such registration
statement terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement, until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver to each Holder (directly or, in the case of the Xxxx Holders,
through the Xxxx Holders' Agent)). With respect to each Holder, upon the receipt
by such Holder of any such notice of a Disadvantageous Condition (directly from
the Issuer or, in the case of the Xxxx Holders, through the Xxxx Holders' Agent)
(i) in connection with the Required Shelf Registration, such Holder shall
forthwith discontinue use of the prospectus and any prospectus supplement under
such registration statement and shall suspend sales of Registrable Securities
until such Disadvantageous Condition no longer exists and (ii) in connection
with the Required Shelf Registration or the Demand Registration, as applicable,
if so directed by the Issuer by notice as aforesaid, such Holder will deliver to
the Issuer all copies, other than permanent filed copies then in such Holder's
possession, of the prospectus and prospectus supplements then covering such
Registrable Securities at the time of receipt of such notice as aforesaid.
Notwithstanding anything else contained in this Agreement, (x) neither the
filing nor the effectiveness of any registration statement under Section 2.2 may
be delayed for more than a total of 60 days pursuant to this Section 2.4 and (y)
the maintaining current of a prospectus (and the suspension of sales of
Registrable Securities) in connection with the Required Shelf Registration may
not be delayed under this Section 2.4 for more than a total of 60 days in any
six-month period.
Section 2.5. Expenses. Except as provided herein, the Issuer shall pay
all Registration Expenses with respect to each registration hereunder.
Notwithstanding the foregoing, (i) each Holder and the Issuer shall be
responsible for its own internal administrative and similar costs, which shall
not constitute Registration Expenses, (ii) each Holder 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 Holder 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 Holder, and (iv) the Holders shall be
jointly and severally responsible for all out-of-pocket costs and expenses of
the Issuer 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).
Section 2.6. Registration and Qualification. If and whenever the Issuer
is required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 2.1 or 2.2, the Issuer shall as promptly
as practicable (but subject to the provisions of Sections 2.1 and 2.2):
(a) prepare, file and cause to become effective a registration
statement under the Securities Act relating to the Registrable Securities to be
offered in accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities (i) in the case of the Required Shelf
Registration, until the Shelf Termination Date and (ii) in the case of the
Demand Registration, until the earlier of (A) such time as all Registrable
Securities proposed to be sold therein have been disposed of in accordance with
the intended methods of disposition set forth in such registration statement and
(B) the expiration of 30 days after such registration statement becomes
effective, provided, that such 30-day period shall be extended for such number
of days that equals the number of days elapsing from (x) the date the written
notice contemplated by paragraph (e) below is given by the Issuer to (y) the
date on which the Issuer delivers to the Holders of Registrable Securities the
supplement or amendment contemplated by paragraph (e) below;
(c) furnish to the Holders of Registrable Securities and to
any underwriter of such Registrable Securities such number of conformed copies
of such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus),
in conformity with the requirements of the Securities Act, and such documents
incorporated by reference in such registration statement or prospectus, as the
Holders of Registrable Securities or such underwriter may reasonably request;
(d) furnish to any underwriter of such Registrable Securities
an opinion of counsel for the Issuer and a "cold comfort" letter signed by the
independent public accountants who have audited the financial statements of the
Issuer included in the applicable registration statement, in each such case
covering substantially such matters with respect to such registration statement
(and the prospectus included therein) and the related offering as are
customarily covered in opinions of issuer's counsel with respect thereto and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities and such other matters as such underwriters may reasonably
request;
(e) promptly notifying the Selling Holders in writing (i) at
any time when a prospectus relating to a registration pursuant to Section 2.1 or
2.2 is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) of any request by the Commission or any other
regulatory body or other body having jurisdiction for any amendment or
supplement to any registration statement or other document relating to such
offering, and in either such case, at the request of the Selling Holders prepare
and furnish to the Selling Holders a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include 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, in light of the circumstances under which they are made, not
misleading;
(f) use its reasonable best efforts to list all such
Registrable Securities covered by such registration on each securities exchange
and automated interdealer quotation system on which the Common Stock is then
listed;
(g) use reasonable efforts to assist the Holders in the
marketing of Common Stock in connection with up to two underwritten offerings
hereunder (including, to the extent reasonably consistent with work commitments,
using reasonable efforts to have officers of the Issuer attend "road shows" and
analyst or investor presentations scheduled in connection with such
registration), with all out-of-pocket costs and expenses incurred by the Issuer
or such officers in connection with such attendance or assistance to be paid by
the Holders as provided in Section 2.5; and
(h) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to Section 2.1 or 2.2 unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters.
Section 2.7. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Article 2, the Issuer shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by the Issuer and such other terms and provisions
as are customarily contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnification and
contribution provisions substantially to the effect and to the extent provided
in Section 2.8, and agreements as to the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 2.6(d).
Such underwriting agreement shall also contain such representations and
warranties by such Selling Holders and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
2.8.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act pursuant
to this Article 2, the Issuer shall give the Permitted Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants (the identity and number of whom shall be reasonably
acceptable to the Issuer), such reasonable and customary access to its books,
records and properties and such opportunities to discuss the business and
affairs of the Issuer with its officers and the independent public accounts who
have certified the financial statements of the Issuer as shall be necessary, in
the opinion of such Holders and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act;
provided that the foregoing shall not require the Issuer to provide access to
(or copies of) any competitively sensitive information relating to the Issuer or
its subsidiaries or their respective business; provided further that (i) each
Holder and the underwriters and their respective counsel and accountants shall
have entered into a confidentiality agreement reasonably acceptable to the
Issuer and (ii) the Permitted Holders and the underwriters and their respective
counsel and accountants shall use their reasonable best efforts to minimize the
disruption to the Issuer's business and coordinate any such investigation of the
books, records and properties of the Issuer and any such discussions with the
Issuer's officers and accountants so that all such investigations occur at the
same time and all such discussions occur at the same time.
Section 2.8. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless each
Selling Holder and each Person, if any, who controls such Selling Holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or any amendment thereof, any
preliminary prospectus or prospectus (as amended or supplemented if the Issuer
shall have furnished any amendments or supplements thereto) relating to the
Registrable Securities, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Issuer in writing by such Selling Holder expressly for use therein. The Issuer
also agrees to indemnify any underwriter of the Registrable Securities so
offered and each Person, if any, who controls such underwriter on substantially
the same basis as that of the indemnification by the Issuer of the Selling
Holders provided in this Section 2.8(a).
(b) Each Selling Holder agrees to indemnify and hold harmless
the Issuer, its directors, the officers who sign the registration statement and
each Person, if any who controls the Issuer within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all loses, claims, damages, liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or alleged untrue statement of
a material fact contained in any registration statement or any amendment
thereof, any preliminary prospectus or prospectus (as amended or supplemented if
the Issuer shall have furnished any amendments or supplements thereto) relating
to the Registrable Securities, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to information
furnished in writing by such Selling Holder (or any representative thereof)
expressly for use in a registration statement, any preliminary prospectus,
prospectus or any amendments or supplements thereto. Each Selling Holder also
agrees to indemnify any underwriter of the Registrable Securities so offered and
each Person, if any, who controls such underwriter on substantially the same
basis as that of the indemnification by such Selling Holder of the Issuer
provided in this Section 2.8(b).
(c) Each party indemnified under paragraph (a) or (b) above
shall, promptly after receipt of notice of a claim or action against such
indemnified party in respect of which indemnity may be sought hereunder, notify
the indemnifying party in writing of the claim or action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party on account of the indemnity agreement
contained in paragraph (a) or (b) above except to the extent that the
indemnifying party was actually prejudiced by such failure, and in no event
shall such failure relieve the indemnifying party from any other liability that
it may have to such indemnified party. If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying party thereof, unless based on the written advice of counsel to
such indemnified party a conflict of interest between such indemnified party and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof. 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 2.8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof. Any indemnifying party
against whom indemnity may be sought under this Section 2.8 shall not be liable
to indemnify an indemnified party if such indemnified party settles such claim
or action without the consent of the indemnifying party. The indemnifying party
may not agree to any settlement of any such claim or action, other than solely
for monetary damages for which the indemnifying party shall be responsible
hereunder, the result of which any remedy or relief shall be applied to or
against the indemnified party, without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld. In any
action hereunder as to which the indemnifying party has assumed the defense
thereof, the indemnified party shall continue to be entitled to participate in
the defense thereof, with counsel of its own choice, but the indemnifying party
shall not be obligated hereunder to reimburse the indemnified party for the
costs thereof.
(d) If the indemnification provided for in this Section 2.8
shall for any reason be unavailable (other than in accordance with its terms) to
an indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuer on the one hand and the Selling Holders on the other hand from the
offering of the Registrable Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and the Selling Holders
on the other hand in connection with the offering of the Registrable Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Registrable Securities (before deducting expenses)
received by the Issuer and the Selling Holders, respectively, bear to the
aggregate public offering price of the Registrable Securities. The relative
fault of the Issuer on the one hand and the Selling Holders 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 Issuer or a
Selling Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result of the loss,
cost, claim, damage or liability, or action in respect thereof, referred to
above in this paragraph (d) shall be deemed to include, for purposes of this
paragraph (d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. The Issuer and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.8 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in this paragraph. Notwithstanding
any other provision of this Section 2.8, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling Holder 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the parties under this Section 2.8
shall be in addition to any liability which any party may otherwise have to any
other party.
Section 2.9. Holdback Agreement. If the Demand Registration pursuant to
this Article 2 shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any sale or
distribution, including any sale under Rule 144, of any equity security of the
Issuer (otherwise than through the registered public offering then being made),
within 7 days prior to or 90 days (or such lesser period as the lead or managing
underwriters may permit) after the effective date of the applicable registration
statement.
ARTICLE 3
MISCELLANEOUS
Section 3.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
Section 3.2. Assignment. No party may assign any of its rights or
obligations hereunder by operation of law or otherwise without the prior
written consent of the other parties.
Section 3.3. Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
Issuer and Holders representing a majority of the Registrable Securities then
held by all Holders.
Section 3.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated pursuant to Section
2.3(a) or by written notice from the affected Holder to the Issuer).
Section 3.5. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 3.6. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
Section 3.7. No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any Person
who or which is not a party hereto; provided, that, this Agreement is also
intended to be for the benefit of and is enforceable by each Holder.
Section 3.8. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 3.9. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York or any state court sitting in the City of New York, Borough
of Manhattan in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such courts (and waives any objection based on forum non convenience or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 3.9 and shall
not be deemed to be a general submission to the jurisdiction of said courts or
in the State of New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
Section 3.10. Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
Section 3.11. Holders' Agent. Each Xxxx Xxxxxx hereby appoints
Xxxx/Chilmark Fund, L.P. as its agent and attorney-in-fact (the "Xxxx Holders'
Agent") for purposes of the delivery and receipt of all notices and requests
pursuant to this Agreement. The Issuer may give notice to any Xxxx Xxxxxx
hereunder by giving such notice directly to such Holder. Alternatively, the
Issuer may request that the Xxxx Holders' Agent deliver to each Xxxx Xxxxxx any
notice given by the Issuer hereunder, in which event the Xxxx Holders' Agent
will promptly so give such notice to each Xxxx Xxxxxx. Prompt delivery by the
Xxxx Holders' Agent to the Xxxx Holders will be deemed satisfied if delivery is
made to the Xxxx Holders, in accordance with Section 3.4, not later than the
third business day after actual receipt of the applicable notice or document by
the Xxxx Holders' Agent from the Issuer. Notwithstanding anything else contained
herein, the Xxxx Holders' Agent will not be liable or responsible to any Person
should any Xxxx Xxxxxx fail to act in accordance with any notice so given to
such Xxxx Xxxxxx hereunder.
Section 3.12. Counterparts. This Agreement may be executed in
counterpart, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the Issuer and the Holders have caused this
Agreement to be duly executed as of the day and year first above written.
CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Address: 000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
HOLDERS:
XXXX/CHILMARK FUND, L.P. SAMSTOCK, L.L.C.
By: ZC Limited Partnership, By: SZ Investments, L.L.C.,
general partner its sole member its sole member
By: ZC Partnership, By: Xxxx General Partnership, Inc.,
general partner a member
By: ZC Inc., a partner
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx
Address: 0 Xxxxx Xxxxxxxxx Xxxxx Address: 0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
SZ2 (IGP) PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxx
Name: Xxxxx X. Xxxxxxxxx XXXXXX XXXX
Address: 0 Xxxxx Xxxxxxxxx Xxxxx Address: 0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
