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EXHIBIT 10.28
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of April 10, 1997, is entered into by and among Clear Channel
Communications, Inc., a Texas corporation (the "Company"), and the persons
listed on the signature pages hereof (the "Stockholders").
RECITALS
A. The Company and the Stockholders desire to enter into
this Agreement for the purpose of granting to the Stockholders certain rights
with respect to registering under the Securities Act of 1933, as amended,
shares of Common Stock, par value $.10 per share, of the Company.
B. The Common Stock is being acquired by the
Stockholders pursuant to the stock purchase (the "Transaction") contemplated by
the Stock Purchase Agreement, dated as of February 25, 1997, as amended, by and
among the Company, Xxxxx Media Corporation, a Delaware corporation ("EMC"), and
the persons listed on Exhibit A thereto.
AGREEMENT
In consideration of the Recitals and mutual promises contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Advice" shall have the meaning set forth in Section 4 hereof.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For the purposes
of this definition, "control" when used with respect to any specified person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall have the meaning set forth in the heading
hereof.
"Business Day" means any day that is not a Saturday, a Sunday
or a legal holiday on which banking institutions in the State of New York are
not required to be open.
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"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated) of
corporate stock issued by such person, including each class of common stock and
preferred stock of such person.
"Common Stock" means the Common Stock, par value $.10 per
share, of the Company issued to any Holder named on the signature pages hereof
in the Transaction or any other shares of capital stock or other securities of
the Company into which such shares of Common Stock shall be reclassified or
changed, including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or
if the Company pays a dividend or makes a distribution on the Common Stock in
shares of capital stock or subdivides (or combines) its outstanding shares of
Common Stock into a greater (or smaller) number of shares of Common Stock, a
share of Common Stock shall be deemed to be such number of shares of stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to such change, reclassification, exchange,
dividend, distribution, subdivision or combination would be entitled.
"Company" shall have the meaning set forth in the heading
hereof.
"Company Common Stock" shall mean shares of Common Stock, par
value $.10 per share, of the Company.
"Delay Period" shall have the meaning set forth in Section
2(d) hereof.
"Demand Notice" shall have the meaning set forth in Section
2(a) hereof.
"Demand Registration" shall have the meaning set forth in
Section 2(b) hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 2(d) hereof.
"EMC" shall have the meaning set forth in Recital B.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"H&F Funds" shall mean Xxxxxxx & Xxxxxxxx Capital Partners
III, L.P., H&F Orchard Partners III, L.P. and H&F International Partners III,
L.P.
"Holder" means a person who owns Registrable Shares and is
either (i) a Stockholder, (ii) a Permitted Transferee or (iii) a Permitted
Assignee.
"Holdings" shall mean EM Holdings LLC, an Arizona limited
liability company.
"Holdings Agreement" shall mean the Stockholders Agreement,
dated as of April 8, 1997, by and among EMC, the Company and Holdings.
"Inclusion Notice" shall have the meaning set forth in Section
2(a) hereof.
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"Indemnified Party" shall have the meaning set forth in
Section 7(c) hereof.
"Indemnifying Party" shall have the meaning set forth in
Section 7(c) hereof.
"Inspectors" shall have the meaning set forth in Section 4(l)
hereof.
"Interruption Period" shall have the meaning set forth in
Section 4 hereof.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"Permitted Assignee" means a Holder who acquires (a) more than
$5 million in value of Common Stock at the date of transfer from a Holder, or
(b) Common Stock from a Holder in a transfer in which consent to assignment of
this Agreement is granted pursuant to Section 9(e), in either case in a
transfer exempt pursuant to Rule "4(1-1/2)" (or any similar private transfer
exemption), provided that in each case the transferee assumes and agrees to
perform and becomes a party to this Agreement.
"Permitted Transferees" means, as to any Holder, (A) any other
Holder, (B) any Affiliate or partner of a Stockholder (and in the case of a
general partner of a Stockholder, any partner of such general partner or its
partners or members); (C) any person who is the spouse or former spouse of, or
any lineal descendent (including adopted children) of, or any spouse of such
lineal descendant (including adopted children) of, or the grandparent, parent,
brother or sister of, or spouse of such brother or sister of, a Holder or
Permitted Transferee of such person; (D) upon the death of any Holder or any
Permitted Transferee of such person, the executors of the estate of such Holder
or Permitted Transferee, any of such Holder's or such Permitted Transferee's
heirs, testamentary trustees, devisees, or legatees; (E) any trust principally
for the benefit of one or more of the foregoing Holders or Permitted
Transferees (including a charitable lead or remainder trust); or (F) upon the
disability of any Holder or Permitted Transferee, any guardian or conservator
of such Holder or Permitted Transferee; provided that in each case such
transferee assumes and agrees to perform and becomes a party to this Agreement.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Piggyback Registration" shall have the meaning set forth in
Section 3(a) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective Registration Statement in
reliance upon Rule 430A), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Shares covered by such Registration Statement and all other
amendments and supplements to such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such prospectus.
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"Records" shall have the meaning set forth in Section 4(l)
hereof.
"Registrable Shares" means shares of Common Stock unless (i)
they have been effectively registered under Section 5 of the Securities Act and
disposed of pursuant to an effective Registration Statement, or (ii) all of
such Common Stock of a Holder can be freely sold and transferred without
restriction under the volume limitation provisions of Rule 144 or Rule 145
under the Securities Act or any successor rule such that, after any such
transfer referred to in this clause (ii), such securities may be freely
transferred without restriction under the Securities Act. In addition, any
shares of Common Stock held by a Stockholder who owns Common Stock representing
more than 1% of the then outstanding Company Common Stock shall be considered
Registrable Shares. Further, no Holder who is not a Stockholder shall be
deemed to own Registrable Shares after three years from the date hereof. For
purposes of this definition, the H&F Funds shall be considered a single
Stockholder.
"Registration" means registration under the Securities Act of
an offering of Registrable Shares pursuant to a Demand Registration or a
Piggyback Registration.
"Registration Period" means, as to any Holder, the period
beginning on the date hereof and ending on the date when such Holder no longer
owns any Registrable Shares.
"Registration Statement" means any registration statement
under the Securities Act of the Company that covers any of the Registrable
Shares pursuant to the provisions of this Agreement, including the related
Prospectus, all amendments and supplements to such registration statement,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Stockholders" shall have the meaning set forth in the heading
hereof.
"Transaction" shall have the meaning set forth in Recital B.
"Underwritten Offering" means a registration under the
Securities Act in which securities of the Company are sold to an underwriter
for reoffering to the public.
2. Demand Registration.
(a) Subject to the last sentence of this Section
2(a), any Holder or Holders shall have the right during the Registration
Period, by written notice (the "Demand Notice") given to the Company, to
request the Company to register under and in accordance with the provisions of
the Securities Act all or any portion of the Registrable Shares designated by
such Holders; provided, however, that the aggregate value (based on the closing
price per
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share of Common Stock at the respective dates of such notices) of Registrable
Shares requested to be registered pursuant to any Demand Notice and pursuant to
any related Inclusion Notices received pursuant to the following sentence shall
be at least $ 20 million. Upon receipt of any such Demand Notice, the Company
shall promptly (and in no event later than 15 days after receipt of such Demand
Notice) notify all other Holders of the receipt of such Demand Notice and allow
them the opportunity to include Registrable Shares held by them in the proposed
registration by submitting their own written notice to the Company no later
than 15 days after receipt of the notice from the Company of the Demand Notice
requesting inclusion of a specified number of such Holders' Registrable
Securities (the "Inclusion Notice"). In connection with any Demand
Registration in which more than one Holder participates, in the event that such
Demand Registration involves an Underwritten Offering and the managing
underwriter or underwriters participating in such offering advise in writing
the Holders of Registrable Shares to be included in such offering that the
total number of Registrable Shares to be included in such offering exceeds the
amount that can be sold in (or during the time of) such offering without
delaying or jeopardizing the success of such offering (including the price per
share of the Registrable Shares to be sold), then the amount of Registrable
Shares to be offered for the account of such Holders shall be reduced pro rata
on the basis of the number of Registrable Shares to be registered by each such
Holder. The Holders as a group shall be entitled to three Demand Registrations
pursuant to this Section 2. If any such Demand Registration does not become
effective or is not maintained for a period (whether or not continuous) of at
least 120 days (or such shorter period as shall terminate when all the
Registrable Shares covered by such Demand Registration (other than any shares
reserved for issuance upon exercise of the underwriters' overallotment option)
have been sold pursuant thereto), the affected Holders will be entitled to an
additional Demand Registration pursuant hereto. For purposes of the foregoing,
the 120-day period does not have to be consecutive and may be interrupted by
Delay Periods or Interruption Periods as set forth herein. It is agreed that
the registration of Registrable Shares pursuant to an Inclusion Notice shall
not be deemed to be a separate Demand Registration. Nothing in this Section
2(a) shall limit any rights pursuant to Section 3 hereof.
(b) The Company, within 45 days of the date on
which the Company receives a Demand Notice given by Holders in accordance with
Section 2(a) hereof, shall file with the SEC, and the Company shall thereafter
use commercially reasonable efforts to cause to be declared effective, a
Registration Statement on the appropriate form for the registration and sale,
in accordance with the intended method or methods of distribution, of the total
number of Registrable Shares specified by the Holders in such Demand Notice (a
"Demand Registration").
(c) The Company shall use commercially reasonable
efforts to cause the Registration Statement to be declared effective and to
keep each Registration Statement filed pursuant to this Section 2 continuously
effective and usable for the resale of the Registrable Shares covered thereby
until the earlier of (i) 120 days from the date on which the SEC declares such
Registration Statement effective (as such period may be extended pursuant to
this Section 2) and (ii) the date on which all the Registrable Shares covered
by such Registration Statement (other than any shares reserved for issuance
upon exercise of the underwriters' overallotment option) have been sold
pursuant to such Registration Statement.
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(d) Except with respect to the first Demand
Notice contemplated by Section 2(g) hereof, the Company shall be entitled to
postpone the filing of any Registration Statement otherwise required to be
prepared and filed by the Company pursuant to this Section 2 for a reasonable
period of time, but not in excess of 90 days (a "Delay Period"), if the Board
of Directors of the Company determines in good faith that the registration and
distribution of the Registrable Shares covered or to be covered by such
Registration Statement would materially interfere with any pending material
financing, acquisition or corporate reorganization or other material corporate
development involving the Company or any of its subsidiaries or would require
premature disclosure thereof and promptly gives the Holders written notice of
such determination, containing a general statement of the reasons for such
postponement and an approximation of the period of the anticipated delay;
provided, however, that (i) the aggregate number of days included in all Delay
Periods during any consecutive 12 months shall not exceed the aggregate of (x)
120 days minus (y) the number of days occurring during all Interruption Periods
during such consecutive 12 months and (ii) a period of at least 60 days shall
elapse between the termination of any Delay Period or Interruption Period and
the commencement of the immediately succeeding Delay Period. If the Company
shall so postpone the filing of a Registration Statement, the Holders of
Registrable Shares to be registered shall have the right to withdraw the
request for registration by giving written notice from the Holders of a
majority of the Registrable Shares that were to be registered to the Company
within 30 days after receipt of the notice of postponement or, if earlier, the
termination of such Delay Period (and, in the event of such withdrawal, such
request shall not be counted for purposes of determining the number of requests
for registration to which the Holders of Registrable Shares are entitled
pursuant to this Section 2). The time period for which the Company is required
to maintain the effectiveness of any Registration Statement shall be extended
by the aggregate number of days of all Delay Periods and all Interruption
Periods occurring during such Registration and such period and any extension
thereof is hereinafter referred to as the "Effectiveness Period." The Company
shall not be entitled to initiate a Delay Period or an Interruption Period
unless it shall (A) concurrently prohibit sales by all other security holders
under registration statements covering securities held by such other security
holders (excluding exercise of options pursuant to a Form S-8) and (B) forbid
purchases and sales in the open market by senior executives of the Company.
(e) Except with respect to the first Demand
Registration contemplated by Section 2(g) hereof, the Company shall not include
any securities that are not Registrable Shares in any Registration Statement
filed pursuant to this Section 2 without the prior written consent of the
Holders of a majority in number of the Registrable Shares held by Holders
covered by such Registration Statement, which consent shall not be unreasonably
withheld.
(f) Holders of a majority in number of the
Registrable Shares to be included in a Registration Statement pursuant to this
Section 2 may, at any time prior to the effective date of the Registration
Statement relating to such Registration, revoke such request by providing a
written notice to the Company revoking such request. The Holders of
Registrable Shares who revoke such request shall reimburse the Company for all
its out-of- pocket expenses incurred in the preparation, filing and processing
of the Registration Statement; provided, however, that, if such revocation was
pursuant to Section 2(d) (for a postponement) or was based on the Company's
failure to comply in any material respect with its obligations
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hereunder, such reimbursement shall not be required, and such registration
shall not count against the maximum number of Demand Registrations to which the
applicable Holders are entitled under Section 2(a). In addition, if pursuant
to the terms of this Section 2(f), the Holders reimburse the Company for its
out-of-pocket expenses incurred in the preparation, filing and processing of
any Registration Statement requested, and subsequently revoked by such
Holder(s), such registration shall not count against the maximum number of
Demand Registrations to which the applicable Holder(s) are entitled under
Section 2(a).
(g) Notwithstanding anything herein to the
contrary, the Stockholders hereby give their first Demand Notice to the Company
as set forth on Schedule I hereto, subject to their right to revoke such
request pursuant to Section 2(f), and understand and agree that the Company
intends to include authorized but unissued Company Common Stock for sale in
such Registration pursuant to a firm commitment Underwritten Offering. In the
event the managing underwriter or underwriters participating in such offering
advise in writing the Company and the Holders of Registrable Shares to be
included in such offering that the total number of Registrable Shares and
shares of Company Common Stock to be sold by the Company to be included in such
offering exceeds the amount that can be sold in (or during the time of) such
offering without delaying or jeopardizing the success of such offering
(including the price per share of the Registrable Shares and other shares of
Company Common Stock to be sold), then the amount of shares to be offered shall
be reduced in the following order of priority: (i) first, the amount of
Company Common Stock to be sold by the Company shall be reduced, to the extent
necessary, until such amount equals zero, and (ii) second, to the extent
necessary, the amount of Registrable Shares shall be reduced pro rata on the
basis of the number of Registrable Shares to be registered by each such Holder.
It is understood that the second Demand Notice may not be given for a period of
at least six months after the completion of the sale of Registrable Shares
effected pursuant to the first Demand Registration, and that the third Demand
Notice may not be given for a period of at least twelve months after the
completion of the sale of Registrable Shares effected pursuant to the second
Demand Registration, and that no Demand Notice will be given for a period of
120 days after the sale of any shares of Company Common Stock pursuant to a
Registration Statement in which the Holders have been given an opportunity to
participate as provided in Section 3(a) hereof and have either sold any shares
as part of such offering or have elected not to participate.
3. Piggyback Registration.
(a) Right to Piggyback. If at any time during
the Registration Period the Company proposes to file a registration statement
under the Securities Act with respect to a public offering of securities of the
same type as the Registrable Shares pursuant to a firm commitment Underwritten
Offering for cash for its own account (other than a registration statement (i)
on Form S-8 or any successor forms thereto, or (ii) filed solely in connection
with a dividend reinvestment plan or employee benefit plan of the Company or
its Affiliates) or for the account of any holder of securities of the same type
as the Registrable Shares (to the extent that the Company has the right to
include Registrable Shares in any registration statement to be filed by the
Company on behalf of such holder), then the Company shall give written notice
of such proposed filing to the Holders at least 10 days before the anticipated
filing date of such registration statement. Such notice shall offer the
Holders the opportunity to register such
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amount of Registrable Shares as they may request (a "Piggyback Registration").
Subject to Section 3(b) hereof, the Company shall include in each such
Piggyback Registration all Registrable Shares with respect to which the Company
has received written requests for inclusion therein within 10 days after notice
has been given to the Holders. Each Holder shall be permitted to withdraw all
or any portion of the Registrable Shares of such Holder from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration; provided, however, that if such withdrawal occurs after the
filing of the Registration Statement with respect to such Piggyback
Registration, the withdrawing Holders shall reimburse the Company for the
portion of the registration expenses payable with respect to the Registrable
Shares so withdrawn.
(b) Priority on Piggyback Registrations. The
Company shall permit the Holders to include all such Registrable Shares on the
same terms and conditions as any similar securities, if any, of the Company
included therein. Notwithstanding the foregoing, if the Company or the
managing underwriter or underwriters participating in such offering advise the
Holders in writing that the total amount of securities requested to be included
in such Piggyback Registration exceeds the amount which can be sold in (or
during the time of) such offering without delaying or jeopardizing the success
of the offering (including the price per share of the securities to be sold),
then the amount of securities to be offered for the account of the Holders and
other holders of securities who have registration rights with respect thereto
shall be reduced (to zero if necessary) pro rata on the basis of the number of
common stock equivalents requested to be registered by each such Holder or
holder participating in such offering.
(c) Right to Abandon. Nothing in this Section 3
shall create any liability on the part of the Company to the Holders if the
Company in its sole discretion should decide not to file a registration
statement proposed to be filed pursuant to Section 3(a) hereof or to withdraw
such registration statement subsequent to its filing and prior to the later of
its effectiveness or the release of the Registrable Shares for public offering
by the managing underwriter, in the case of an underwritten public offering,
regardless of any action whatsoever that a Holder may have taken, whether as a
result of the issuance by the Company of any notice hereunder or otherwise.
(d) Priority Over Demand Registrations. If the
Company at any time within 15 days after receipt of a Demand Notice (or any
applicable Delay Period) notifies the Holders of its proposal to file a
Registration Statement covered by Section 3(a) hereof pursuant to which a
majority of shares to be sold will be sold by the Company (without regard to
any shares to be sold by the Holders), the Company's proposed filing and notice
thereof will take priority over the Demand Notice, and the Demand Notice will
be considered to have been revoked and will not be considered or counted as a
Demand Registration under Section 2. Subject to the provisions of Section
2(g), the revocation of the Demand Notice shall in no way affect or preclude a
new Demand Notice if the Company abandons the proposed registration as
contemplated by Section 3(c). The provisions of this Section 2(d) will not
apply to the first Demand Notice pursuant to Section 2(g) hereof.
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4. Registration Procedures. In connection with the
registration obligations of the Company pursuant to and in accordance with
Sections 2 and 3 hereof (and subject to Sections 2 and 3 hereof), the Company
shall use commercially reasonable efforts to effect such registration to permit
the sale of such Registrable Shares in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company shall (subject
to Sections 2 and 3 hereof):
(a) At least three business days before filing a
Registration Statement or Prospectus, furnish to the Holders (or their
representatives) who are participating in such Registration Statement and the
underwriters, if any, copies of all such documents (which may be drafts or
proofs) proposed to be filed, which documents will be subject to the review of
such Holders and such underwriters (and their respective counsel), and, in the
case of a Demand Registration, the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereof to
which the registering Holders or the underwriters, if any, shall reasonably
object;
(b) prepare and file with the SEC a Registration
Statement for the sale of the Registrable Shares on any form for which the
Company then qualifies or which counsel for the Company shall deem appropriate
in accordance with such Holders' intended method or methods of distribution
thereof, subject to Section 2(b) hereof, and, subject to the Company's right to
terminate or abandon a registration pursuant to Section 3(c) hereof, use
commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective as provided herein;
(c) prepare and file with the SEC such amendments
(including post-effective amendments) to such Registration Statement, and such
supplements to the related Prospectus, as may be required by the rules,
regulations or instructions applicable to the Securities Act during the
applicable period in accordance with the intended methods of disposition
specified by the Holders of the Registrable Shares covered by such Registration
Statement, make generally available earnings statements satisfying the
provisions of Section 11(a) of the Securities Act (provided that the Company
shall be deemed to have complied with this clause if it has complied with Rule
158 under the Securities Act), and cause the related Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
provided, however, that before filing a Registration Statement or Prospectus,
or any amendments or supplements thereto (other than reports required to be
filed by it under the Exchange Act), the Company shall furnish to the Holders
of Registrable Shares covered by such Registration Statement and their counsel
for their reasonable review and comment, copies of all documents required to be
filed;
(d) notify the Holders of any Registrable Shares
covered by such Registration Statement promptly and (if requested) confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to such Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC for amendments or supplements to such
Registration Statement or the related Prospectus or for additional information
regarding such Holders, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of such
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Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (v) of the happening of any
event that requires the making of any changes in such Registration Statement,
Prospectus or documents incorporated or deemed to be incorporated therein by
reference so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(e) use commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of such Registration
Statement, or the lifting of any suspension of the qualification or exemption
from qualification of any Registrable Shares for sale in any jurisdiction in
the United States;
(f) furnish to the Holder of any Registrable
Shares covered by such Registration Statement, each counsel for such Holders
and each managing underwriter, if any, without charge, one conformed copy of
such Registration Statement, as declared effective by the SEC, and of each
post-effective amendment thereto, in each case including financial statements
and schedules and all exhibits and reports incorporated or deemed to be
incorporated therein by reference; and deliver, without charge, such number of
copies of the preliminary prospectus, any amended preliminary prospectus, each
final Prospectus and any post-effective amendment or supplement thereto, as
such Holder may reasonably request in order to facilitate the disposition of
the Registrable Shares of such Holder covered by such Registration Statement in
conformity with the requirements of the Securities Act;
(g) prior to any public offering of Registrable
Shares covered by such Registration Statement, use commercially reasonable
efforts to register or qualify such Registrable Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Holders of such
Registrable Shares shall reasonably request in writing; provided, however, that
the Company shall in no event be required to qualify generally to do business
as a foreign corporation or as a dealer in any jurisdiction where it is not at
the time so qualified or to execute or file a general consent to service of
process in any such jurisdiction where it has not theretofore done so or to
take any action that would subject it to general service of process or taxation
in any such jurisdiction where it is not then subject;
(h) upon the occurrence of any event contemplated
by paragraph 4(d)(v) above, prepare a supplement or post-effective amendment to
such Registration Statement or the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference and file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Shares being sold thereunder (including upon the termination of
any Delay Period), such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(i) use commercially reasonable efforts to cause
all Registrable Shares covered by such Registration Statement to be listed on
each securities exchange or automated
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interdealer quotation system, if any, on which similar securities issued by the
Company are then listed or quoted;
(j) use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC and any securities
exchange or regulatory body;
(k) on or before the effective date of such
Registration Statement, provide the transfer agent of the Company for the
Registrable Shares with printed certificates for the Registrable Shares covered
by such Registration Statement which are in a form eligible for deposit with
The Depository Trust Company;
(l) if such offering is an Underwritten Offering,
make available for inspection by any Holder of Registrable Shares included in
such Registration Statement, any underwriter participating in any offering
pursuant to such Registration Statement, and any attorney, accountant or other
agent retained by any such Holder or underwriter (collectively, the
"Inspectors"), such financial and other records and other information,
pertinent corporate documents and properties of any of the Company and its
subsidiaries and Affiliates (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibilities; provided, however, that the Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspector in writing are confidential shall not be disclosed to any Inspector
unless such Inspector signs a confidentiality agreement reasonably satisfactory
to the Company, which agreement shall permit the release of such Records if
such release is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; provided, however, that each Holder of Registrable
Shares agrees that it shall, promptly after learning that disclosure of such
Records is sought in a court having jurisdiction, give notice to the Company so
that the Company, at the Company's expense, may undertake appropriate action to
prevent disclosure of such Records; and
(m) if such offering is an Underwritten Offering,
enter into such agreements (including an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such
other appropriate and reasonable actions requested by the Holders of a majority
of the Registrable Shares being sold in connection therewith (including those
reasonably requested by the managing underwriters) in order to expedite or
facilitate the disposition of such Registrable Shares, and in such connection,
(i) use commercially reasonable efforts to obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters and
counsel to the Holders of the Registrable Shares being sold), addressed to each
selling Holder of Registrable Shares covered by such Registration Statement and
each of the underwriters as to the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such counsel and underwriters, (ii) use commercially reasonable
efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of Registrable Shares covered by
the Registration Statement (unless such accountants
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shall be prohibited from so addressing such letters by applicable standards of
the accounting profession) and each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings (iii) if requested
and if an underwriting agreement is entered into, provide indemnification
provisions and procedures substantially to the effect set forth in Section 7
hereof with respect to all parties to be indemnified pursuant to said Section.
The above shall be done at each closing under such underwriting or similar
agreement, or as and to the extent required thereunder. In addition, the
Company agrees not to effect any public sale or distribution of Common Stock or
any securities convertible into or exchangeable or exercisable for Common
Stock, during the period commencing with the effective date of any underwritten
Demand or Piggyback Registration and until the earlier of (A) the abandonment
of such offering or (B) the termination of any "hold back" period reasonably
requested by the underwriters (with exceptions for issuances pursuant to
outstanding options, warrants, and convertible or exchangeable securities,
pursuant to employee and dividend reinvestment plans, and such other exceptions
as are customary or agreed with the managing underwriter).
The Company may require each Holder of Registrable
Shares covered by a Registration Statement to furnish such information
regarding such Holder and such Holder's intended method of disposition of such
Registrable Shares as it may from time to time reasonably request in writing.
If any such information is not furnished within a reasonable period of time
after receipt of such request, the Company may exclude such Holder's
Registrable Shares from such Registration Statement. In addition, the Company
may require each Holder of Registrable Shares covered by a Registration
Statement to agree not to effect any public sale or distribution of Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, during the period commencing with the effective date of any
underwritten Demand or Piggyback Registration and until the earlier of (A) the
abandonment of such offering or (B) the termination of any "hold back" period
reasonably requested by the underwriters (with such exceptions as are customary
or agreed with the managing underwriter). In addition, if the Holders have
been given an opportunity to participate in a Registration Statement pursuant
to Section 3(a), any Holder who owns Registrable Shares representing 1% or more
of the then outstanding shares of Common Stock of the Company will agree, if so
requested by the Company, not to effect any public sale or distribution of
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, during the period commencing with the effective date of any
underwritten Piggyback Registration and until the earlier of (A) the
abandonment of such offering or (B) 30 days after the effective date of such
Piggyback Registration; provided that each officer and director of the Company
who beneficially owns 1% or more of the then outstanding Company Common Stock
and each stockholder of the Company who owns "restricted" shares of Company
Common Stock (as defined in Rule 144) constituting 1% or more of the then
outstanding Company Common Stock agrees to the same hold-back arrangements.
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Each Holder of Registrable Shares covered by a
Registration Statement agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(d)(ii),
4(d)(iii), 4(d)(iv) or 4(d)(v) hereof, that such Holder shall forthwith
discontinue disposition of any Registrable Shares covered by such Registration
Statement or the related Prospectus until receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(h) hereof, or
until such Holder is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amended or supplemented Prospectus or any additional or supplemental filings
which are incorporated, or deemed to be incorporated, by reference in such
Prospectus (such period during which disposition is discontinued being an
"Interruption Period") and, if requested by the Company, the Holder shall
deliver to the Company (at the expense of the Company) all copies then in its
possession, other than permanent file copies then in such holder's possession,
of the Prospectus covering such Registrable Shares at the time of receipt of
such request.
Each Holder of Registrable Shares covered by a
Registration Statement further agrees not to utilize any material other than
the applicable current preliminary prospectus or Prospectus in connection with
the offering of such Registrable Shares.
5. Registration Expenses. The costs, fees and expenses
incident to the Company's performance of or compliance with this Agreement,
including (i) all registration and filing fees, including NASD filing fees,
(ii) all fees and expenses of compliance with securities or Blue Sky laws,
including reasonable fees and disbursements of counsel in connection therewith,
(iii) printing expenses (including expenses of printing certificates for
Registrable Shares and of printing preliminary and final prospectuses if the
printing of prospectuses is requested by the Holders or the managing
underwriter, if any), (iv) messenger, telephone and delivery expenses, (v) fees
and disbursements of counsel for the Company, (vi) fees and disbursements of
all independent certified public accountants of the Company (including expenses
of any "cold comfort" letters required in connection with this Agreement) and
all other persons retained by the Company in connection with this Agreement and
the Registration Statement, (vii) all other costs, fees and expenses incident
to the Company's performance or compliance with this Agreement (excluding the
Company's internal direct and indirect expenses, any expenses which the Company
would otherwise incur, including the costs of its financial and other reporting
under the Exchange Act and filings made on its own behalf under the Securities
Act, any amounts payable by the Company on behalf of other sellers pursuant to
other registration rights agreements or otherwise, and discounts, commissions
and brokers' fees or fees of similar securities industry professionals and any
transfer taxes payable by the Company, which shall be borne by the Company),
shall be borne by the Holders and, if applicable, the Company, pro rata (based
on the number of Registrable Shares sold by such Holders in such offering as a
percentage of the total number of shares sold in the offering). The fees and
expenses of any persons retained by any Holder, including counsel for such
Holder, and any discounts, commissions or brokers' fees or fees of similar
securities industry professionals and any transfer taxes relating to the
disposition of the Registrable Shares by a Holder, will be payable by such
Holder.
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6. Underwriting Requirements.
(a) Subject to Section 6(b) hereof, any Holder
giving a Demand Notice shall have the right, by written notice, to request that
any Demand Registration provide for an Underwritten Offering.
(b) In the case of any Underwritten Offering
pursuant to a Demand Registration, the Company shall select the institution or
institutions that shall manage or lead such offering, with the consent of the
Holders of a majority of the Registrable Shares covered by the Demand Notice to
be disposed of in connection therewith, which consent shall not be unreasonably
withheld. In the case of any Underwritten Offering pursuant to a Piggyback
Registration, the Company shall select the institution or institutions that
shall manage or lead such offering.
7. Indemnification.
(a) Indemnification by the Company. The Company
shall, without limitation as to time, indemnify and hold harmless, to the full
extent permitted by law, each Holder of Registrable Shares whose Registrable
Shares are covered by a Registration Statement or Prospectus, the officers,
directors and agents and employees of each of them, each Person who controls
each such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling person, to the fullest extent lawful, from
and against any and all losses, claims, damages, liabilities, judgment, costs
(including, without limitation, costs of preparation and reasonable attorneys'
fees) and expenses (collectively, "Losses"), as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in such Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are based upon information furnished in writing to the Company by or
on behalf of such Holder expressly for use therein or by any underwriter in a
Demand Registration; provided, however, that the Company shall not be liable to
any such Holder to the extent that any such Losses arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus if (i) having previously been
furnished by or on behalf of the Company with copies of the Prospectus, such
Holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registrable Shares by such
Holder to the person asserting the claim from which such Losses arise and (ii)
the Prospectus would have corrected in all material respects such untrue
statement or alleged untrue statement or such omission or alleged omission; and
provided further, however, that the Company shall not be liable in any such
case to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission in
the Prospectus, if (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in all material respects in an
amendment or supplement to the Prospectus and (y) having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Holder thereafter fails to deliver such
Prospectus as so amended or
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supplemented, prior to or currently with the sale of Registrable Shares. In
connection with any Underwritten Offering, the Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of Section 15 of
the Securities Act) to the same extent as provided above with respect to
indemnification of Holders of Registrable Shares, or on such other terms as are
reasonable and customary and requested by the managing underwriter.
(b) Indemnification by Holder of Registrable
Shares. In connection with any Registration Statement in which a Holder is
participating, such Holder shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with such
Registration Statement or the related Prospectus and agrees to indemnify, to
the full extent permitted by law, the Company, its directors, officers, agents
or employees, each Person who controls the Company (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act) and the
directors, officers, agents or employees of such controlling Persons, from and
against all Losses as incurred arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in such Registration
Statement or the related Prospectus or any amendment or supplement thereto, or
any preliminary prospectus, or arising out of or based upon any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, to the extent, but only to the
extent, that such untrue or alleged untrue statement or omission or alleged
omission is based upon any information so furnished in writing by or on behalf
of such Holder to the Company expressly for use in such Registration Statement
or Prospectus.
(c) If any Person shall be entitled to indemnity
hereunder (an "Indemnified Party"), indemnified party shall give prompt notice
to the party from which such indemnity is sought (the "Indemnifying Party") of
any claim or of the commencement of any proceeding with respect to indemnitee
party seeks indemnification or contribution pursuant hereto; provided, however,
that the delay or failure to so notify the indemnifying party shall not relieve
the indemnifying party from any obligation or liability except to the extent
that the indemnifying party has been prejudiced by such delay or failure. The
indemnifying party shall have the right, exercisable by giving written notice
to an indemnified party promptly after the receipt of written notice from such
indemnified party of such claim or proceeding, to assume, at the indemnifying
party's expense, the defense of any such claim or proceeding, with counsel
reasonably satisfactory to such indemnified party; provided, however, that (i)
an indemnified party shall have the right to employ separate counsel in any
such claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (1) the indemnifying party agrees to pay such fees and expenses;
(2) the indemnifying party fails promptly to assume the defense of such claim
or proceeding or fails to employ counsel reasonably satisfactory to such
indemnified party; or (3) the named parties to any proceeding (including
impleaded parties) include both such indemnified party and the indemnifying
party, and such indemnified party shall have been advised by counsel that there
are likely to be one or more legal defenses available to it that are
inconsistent with those available to the indemnifying party or that a conflict
of interest is likely to exist among such indemnified party and any other
indemnified parties (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified
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party); and (ii) subject to clause (3) above, the indemnifying party shall not,
in connection with any one such claim or proceeding or separate but
substantially similar or related claims or proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one firm of attorneys (together
with appropriate local counsel) at any time for all of the indemnified parties,
or for fees and expenses that are not reasonable. Whether or not such defense
is assumed by the indemnifying party, such indemnified party shall not be
subject to any liability for any settlement made without its consent. The
indemnifying party shall not consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
in respect of such claim or litigation for which such indemnified party would
be entitled to indemnification hereunder.
(d) Contribution. If the indemnification
provided for in this Section 7 is unavailable to an indemnified party in
respect of any Losses (other than in accordance with its terms), then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party, on the one
hand, and indemnified party, on the other hand, shall be determined by
reference to, among other things, whether any action in question, including any
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been taken by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any investigation or
proceeding. The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the this Section 7(d).
Notwithstanding the provision of this Section 7(d), an indemnifying party that
is a Holder shall not be required to contribute any amount which is in excess
of the amount by which the total proceeds received by such Holder from the sale
of the Registrable Shares sold by such Holder (net of all underwriting
discounts and commissions) exceeds the amount of any damages that such
indemnifying party 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.
8. Rule 144. The Company covenants that it will use all
reasonable commercial efforts to timely file the reports required to be filed
by it under the Securities Act or the Exchange Act (including but not limited
to the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the SEC under the Securities Act)
and the rules and regulations adopted by the SEC thereunder (or if the Company
16
17
is not required to file such reports, the Company will, upon the request of any
Holder of Registrable Shares, make publicly available other information), and
will take such further action as any Holder of Registrable Shares may
reasonably request, all to the extent required from time to time to enable such
Holder of Registrable Shares to sell Registrable Shares within the exemption
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Shares, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
9. Rights of Holdings. In the event that Holdings
receives any shares of Company Common Stock pursuant to and in accordance with
the terms of the Holdings Agreement, and so long as at least one other Holder
(which is not a Permitted Transferee or Permitted Assignee of Holdings) owns
Registrable Shares and this Agreement has not been terminated in accordance
with its terms, such shares received by Holdings shall then and thereafter for
purposes of this Agreement constitute Registrable Shares (subject to the
qualifications set forth in the definition of Registrable Shares) and Holdings
shall then and thereafter for purposes of this Agreement be a Holder in respect
of such Registrable Shares. Notwithstanding the foregoing, in respect of the
Demand Registration rights granted to Holders under Section 2 of this
Agreement, Holdings (and the Permitted Transferees and Permitted Assignees of
Holdings), as a Holder hereunder, shall not have the right to request any
Demand Registrations, but only the right to participate with other Holders in
such Demand Registrations in accordance with and subject to the provisions of
Section 2. Also, in respect of the termination provisions set forth in Section
10(a) below, the Registrable Shares owned by Holdings hereunder (or any
Permitted Transferee or Permitted Assignee thereof) shall not be Registrable
Shares for purposes of any determinations made thereunder.
10. Miscellaneous.
(a) Termination. Section 2 of this Agreement
shall terminate on the later of 2 years after the date of this Agreement or the
date when the H&F Funds collectively own less than 2,285,000 Registrable Shares
(appropriately adjusted for stock splits, combinations, stock dividends and
similar transactions). This Agreement and the obligations and rights of the
Company and the Holders hereunder (other than Section 7 hereof) shall terminate
on the earlier of (i) the first date on which there remains outstanding
Registrable Shares having a value (based on the closing price per share of
Common Stock) of less than $20 million and (ii) 5 years after the date of this
Agreement.
(b) Notices. All notices, requests, demands and
other communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given when received
if personally delivered; when transmitted if transmitted by telecopy,
electronic or digital transmission method; the day after it is sent, if sent
for next day delivery to a domestic address by recognized overnight delivery
service (e.g., Federal Express); and upon receipt, if sent by certified or
registered mail, return receipt requested. In each case, notice shall be sent
to each of the Stockholders at the address indicated below such Stockholder's
name on the signature pages hereto, and to the Company at the address indicated
below:
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Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Piper & Marbury L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxx, Xx., Esq.
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(c) Interpretation. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. Headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the word "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". This Agreement shall not be construed for or
against either party by reason of the authorship or alleged authorship of any
provision hereof or by reason of the status of the respective parties. All
terms defined in this Agreement in the singular shall have the same comparable
meanings when used in the plural and vice versa, unless otherwise specified.
(d) Entire Agreement; No Third-Party
Beneficiaries. This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and is not intended to confer
upon any person other than the parties hereto any rights or remedies hereunder.
(e) Assignment. Neither this Agreement nor any
of the rights, interests, or obligations hereunder shall be assigned (whether
by operation of law or otherwise) by any Holder without the consent of the
Company, or by the Company without the consent of Holders of at least a
majority in number of the Registrable Shares then outstanding; provided that
any Holder can assign its rights hereunder to a Permitted Transferee or
Permitted Assignee without the consent of the Company. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by the parties and their respective
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successors and assigns. In no event shall any transferee of Common Stock be
entitled, solely as a result of such transfer, to any of the benefits of this
Agreement or to enforce the same.
(f) Governing Law. This Agreement shall be
construed, interpreted and the rights of the parties determined in accordance
with the laws of the State of Delaware (without reference to the choice of law
provisions), except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
(g) Severability. Each party agrees that, should
any court or other competent authority hold any provision of this Agreement or
part hereof to be null, void or unenforceable, or order any party to take any
action inconsistent herewith or not to take an action consistent herewith or
required hereby, the validity, legality and enforceability of the remaining
provisions and obligations contained or set forth herein shall not in any way
be affected or impaired thereby. Upon any such holding that any provision of
this Agreement is null, void or unenforceable, the parties will negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated by this Agreement are consummated to the extent
possible. Except as otherwise contemplated by this Agreement, to the extent
that a party hereto took an action inconsistent herewith or failed to take
action consistent herewith or required hereby pursuant to an order or judgment
of a court or other competent authority, such party shall incur no liability or
obligation unless such party did not in good faith seek to resist or object to
the imposition or entering of such order or judgment.
(h) Injunctive Relief. The parties acknowledge
that it will be impossible to measure in money the damages that would be
suffered if the parties fail to comply with any of the obligations herein
imposed on them and that in the event of any such failure, an aggrieved person
or entity will be irreparably damaged and will not have an adequate remedy at
law. Any such person or entity shall, therefore, be entitled to injunctive
relief, including specific performance, to enforce such obligations, and if any
action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties shall raise the defense that there is an
adequate remedy at law.
(i) Attorneys' Fees. If any party to this
Agreement brings an action to enforce its rights under this Agreement, the
prevailing party shall be entitled to recover its costs and expenses, including
without limitation reasonable attorneys' fees, incurred in connection with such
action, including any appeal of such action.
(j) Cumulative Remedies. All rights and remedies
of any party hereto are cumulative of each other and of every other right or
remedy such party may otherwise have at law or in equity, and the exercise of
one or more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
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(k) Counterparts. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
instrument and shall become effective when executed and delivered by each of
the parties.
(l) Amendments and Waivers. Except as otherwise
provided herein, the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
Holders of at least a majority in number of the Registrable Shares then
outstanding, or the Holders have obtained the written consent of the Company.
(m) Other Agreements. The Company shall not
enter into any registration rights agreements which are in conflict with the
provisions of this Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
CLEAR CHANNEL COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
XXXXXXX & XXXXXXXX
CAPITAL PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By:
-------------------------
Its:
Address: Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
22
H&F ORCHARD PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By:
-------------------------
Its:
Address: Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
H&F INTERNATIONAL PARTNERS III, L.P.
By: Its General Partner,
H&F Investors III
By: Its Managing General Partner,
Xxxxxxx & Xxxxxxxx Associates
III, L.P.
By: Its Managing General Partner,
H&F Investors III, Inc.
By:
-------------------------
Its:
Address: Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
----------------------------
H. Xxxxxx Xxxxxxxxx
Address: c/o Stanford University
Graduate School of Business Administration
Room L336
Xxxxxxxx, XX 00000
23
AMERICAN MEDIA MANAGEMENT, INC.
By:
----------------------------------------
Its:
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
----------------------------
Xxxxxxx Xxxxx, Xx.
Address: c/o Cumberland Associates
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
----------------------------
Xxxxx Xxxxxxx, as Trustee fbo
Xxxx Xxxxxxx, Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx
Address: c/o Xxxxxxx Xxxxx, Xx.
Cumberland Associates
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------
X. Xxxxxx Xxxxxxxx
Address: c/o Xxxxxxx Xxxxx, Xx.
Cumberland Associates
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
24
----------------------------
Xxxxx Xxxxx
Address: c/o Discount Tire Company
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
----------------------------
Xxxxxxx X. Xxxxxxxx
Address: c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
----------------------------
Xxxxxxxx Xxxxx Xxxxxx
Address: c/o NUMMI
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
EL DORADO INVESTMENT COMPANY
By:_________________________
Its:
Address: c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
25
----------------------------
Xxxxxx X. Xxxxxxx
Address: 0000 Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
EM HOLDINGS LLC
By:
-------------------------
Its:
Address: c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
