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3,850,000 SHARES
HEFTEL BROADCASTING CORPORATION
CLASS A COMMON STOCK
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UNDERWRITING AGREEMENT
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, 1997
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3,850,000 SHARES
HEFTEL BROADCASTING CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
, 1997
ALEX. XXXXX & SONS INCORPORATED
CREDIT SUISSE FIRST BOSTON CORP.
XXXXXX BROTHERS INC.
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
c/o Alex. Xxxxx & Sons Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Heftel Broadcasting Corporation, a Delaware corporation (the "Company"),
and Clear Channel Communications, Inc., a Texas corporation, or its subsidiary
(together, the "Selling Shareholder"), propose to sell to the several
underwriters (the "Underwriters") named in Schedule I hereto 3,850,000 shares of
the Company's Class A Common Stock, $.001 par value (the "Firm Shares"), of
which 3,500,000 shares are to be sold by the Company (the "Company Shares") and
350,000 of which are to be sold by the Selling Shareholder (the "Selling
Shareholder Shares"). The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to sell at the Underwriters' option
an aggregate of up to 525,000 additional shares of the Company's Class A Common
Stock (the "Option Shares") as set forth below. The Selling Shareholder has
executed a Custody Agreement (the "Custody Agreement"), the form of which has
been previously delivered to you, pursuant to which the Selling Shareholder has
placed its Selling Shareholder Shares in custody with the Company and agreed to
take certain other actions with respect thereto and hereto.
As the Underwriters, you have advised the Company and the Selling
Shareholder (a) that you are authorized to enter into this Agreement, and (b)
that the Underwriters are willing, acting severally and not jointly, to purchase
the numbers of Firm Shares set forth opposite their respective names in Schedule
I, plus their pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) A registration statement on Form S-3 (File No. 333-14207) with
respect to the Shares has been carefully prepared by the Company in
conformity in all material respects with the requirements of the
Securities Act of 1933, as amended, (the "Act") and the Rules and
Regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the
Commission under the Act. The Company has complied with the conditions
for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses (meeting
the requirements of Rule 430A of the Rules and Regulations) contained
therein and the exhibits, financial statements and schedules, as finally
amended and revised, have heretofore been delivered by the Company to
you. Such
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registration statement, together with any registration statement filed
by the Company pursuant to Rule 462(b) of the Act, herein referred to as
the "Registration Statement," which shall be deemed to include all
information omitted therefrom in reliance upon Rule 430A and contained
in the Prospectus referred to below, has been declared effective by the
Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this Agreement.
"Prospectus" means (i) the form of prospectus first filed by the Company
with the Commission pursuant to its Rule 424(b) or (ii) the last
preliminary prospectus included in the Registration Statement filed
prior to the time it becomes effective or filed pursuant to Rule 424(a)
under the Act that is delivered by the Company to the Underwriters for
delivery to purchasers of the Shares, together with any term sheet or
abbreviated term sheet filed with the Commission pursuant to Rule
424(b)(7) under the Act. Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus." Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be, and,
in the case of any reference herein to any Prospectus, also shall be
deemed to include any documents incorporated by reference therein, and
any supplements or amendments thereto, filed with the Commission after
the date of filing of the Prospectus under Rules 424(b) and 430A, and
prior to the termination of the offering of the Shares by the
Underwriters.
(b) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Registration Statement; each of the
subsidiaries of the Company as listed in Exhibit A hereto (collectively,
the "Subsidiaries") has been duly organized and, except as set forth in
Exhibit A hereto, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; the Company and
each of the Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their business requires such
qualification and a failure to qualify would have a materially adverse
effect upon the business or financial condition of the Company and the
Subsidiaries taken as a whole; the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of all liens, encumbrances and
security interests except for a lien on 100% of the outstanding capital
stock of each of the Subsidiaries granted to NationsBank of Texas, N.A.,
as agent on behalf of multiple lenders, and no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock or
ownership interests in the Subsidiaries are outstanding.
(c) The 7,000,000 authorized shares of Class B Common Stock of the
Company have been duly authorized. The outstanding shares of Class A
Common Stock of the Company have been duly authorized and are validly
issued, fully-paid and non-assessable; the Shares to be issued and sold
by the Company have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully-paid and
non-assessable; and no preemptive rights of stockholders exist with
respect to any of the Shares or the issue and sale thereof. Neither the
filing of the Registration Statement nor the offering or sale of the
Shares as contemplated by this Agreement gives rise to any rights, other
than those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(d) The information set forth under the caption "Capitalization" in
the Prospectus is true and correct. The Shares conform in all material
respects with the statements concerning them in the Registration
Statement.
(e) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the
Shares nor instituted proceedings for that purpose. The Registration
Statement contains and the Prospectus and any amendments or supplements
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thereto will contain all statements which are required to be stated
therein by, and in all material respects conform or will conform, as the
case may be, to the requirements of, the Act and the Rules and
Regulations. The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission conformed in all
material respects to the requirements of the Securities Exchange Act of
1934 or the Act, as applicable, and the Rules and Regulations of the
Commission thereunder. Neither the Registration Statement nor any
amendment thereto, and neither the Prospectus nor any supplement
thereto, including any documents incorporated by reference therein,
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or
supplement, or any documents incorporated by reference therein in
reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter, specifically for use in
the preparation thereof.
(f) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules included in the
Registration Statement, present fairly the financial position and the
results of operations of the Company and Subsidiaries consolidated, at
the indicated dates and for the indicated periods. Such financial
statements have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of
results for such periods have been made. The selected and summary
financial and statistical data included in the Registration Statement
presents fairly the information shown therein and have been compiled on
a basis consistent with the financial statements presented therein and
the books and records of the Company. The pro forma financial statements
and other pro forma financial information included in the Registration
Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(g) Except for those license renewal applications of the Company or
its Subsidiaries currently pending before the Federal Communications
Commission (the "FCC"), there is no action or proceeding pending or, to
the knowledge of the Company, threatened against the Company or any of
the Subsidiaries before any court or administrative agency which might
result in any material adverse change in the earnings, business,
management, properties, assets, rights, operations, condition (financial
or otherwise) of the Company and of the Subsidiaries (taken as a whole),
except as set forth in the Registration Statement.
(h) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial
statements hereinabove described (or as described in the Registration
Statement) subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount. The Company and the Subsidiaries occupy their leased properties
under valid leases with such exceptions as are not material to the
Company and the Subsidiaries taken as a whole and do not materially
interfere with the use made and proposed to be made of such properties
by the Company and the Subsidiaries.
(i) The Company and the Subsidiaries have filed all Federal, State
and foreign income tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith. The Company has no
knowledge of any tax deficiency that has been or might be asserted
against the Company.
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(j) Since the respective dates as of which information is given in
the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or business prospects of the Company and its
Subsidiaries (taken as a whole), whether or not occurring in the
ordinary course of business, other than general economic and industry
conditions changes in the ordinary course of business and changes or
transactions described or contemplated in the Registration Statement and
there has not been any material transaction entered into by the Company
or the Subsidiaries, other than transactions in the ordinary course of
business and changes and transactions contemplated by the Registration
Statement, as it may be amended or supplemented. None of the Company or
the Subsidiaries have any material contingent obligations which are not
disclosed in the Registration Statement, as it may be amended or
supplemented.
(k) Neither the Company nor any of the Subsidiaries is or with the
giving of notice or lapse of time or both, will be in default under its
Certificate of Incorporation or By-Laws or any agreement, lease,
contract, indenture or other instrument or obligation to which it is a
party or by which it, or any of its properties, is bound and which
default is of material significance in respect of the business or
financial condition of the Company and its Subsidiaries (taken as a
whole). The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment
of the terms hereof will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any Subsidiary is a party, or of the
Certificate of Incorporation or by-laws of the Company or any order,
rule or regulation applicable to the Company or any Subsidiary, or of
any court or of any regulatory body or administrative agency or other
governmental body having jurisdiction, except in all cases a conflict,
breach or default which would not have a materially adverse effect on
the business or financial condition of the Company and the Subsidiaries
(taken as a whole).
(l) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated (except such additional steps as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") or may be necessary to qualify the Shares for public offering by
the Underwriters under State securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(m) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses; and neither the
Company nor any of the Subsidiaries has received notice of any
infringement of any material patents, patent rights, trade names,
trademarks or copyrights, which infringement is material to the business
of the Company and the Subsidiaries (taken as a whole).
(n) Ernst & Young LLP, who have certified the consolidated
financial statements of the Company, filed with the Commission as part
of, or incorporated by reference in, the Registration Statement and
Prospectus, are to the knowledge of the Company independent public
accountants as required by the Act and the Rules and Regulations.
(o) To the best of the Company's knowledge, there are no
affiliations or association between any member of the National
Association of Securities Dealers, Inc. and any of the Company's
officers, directors or 5% or greater security holders, except as set
forth in the Registration Statement or as otherwise disclosed in writing
to the Underwriters.
(p) Neither the Company, nor to the Company's knowledge, any of the
Subsidiaries, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of the shares of Common Stock to facilitate the sale or
resale of the Shares. The Company
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acknowledges that the Underwriters may engage in passive market making
transactions in the Shares on The Nasdaq Stock Market in accordance (and
in compliance) with Rule 10b-6A under the Exchange Act.
(q) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder.
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(s) The Company and each of its Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in
similar industries.
(t) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended t
be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(u) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of doing Business with Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is later, or if the
information reported or incorporated by reference in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to the Underwriters that:
(a) The Selling Shareholder has and at the Closing Date will have good
and valid title to the Selling Shareholder Shares, free and clear of any
outstanding liens, encumbrances, security interests, rights, subscriptions,
warrants, calls, preemptive rights, options or other agreements of any
kind, and full right, power and authority to effect the sale and delivery
of the Selling Shareholder Shares; and upon the delivery of and payment for
the Selling Shareholder Shares pursuant to this Agreement, good and valid
title thereto, free and clear of any liens, encumbrances, security
interests, rights, subscriptions, warrants, calls, preemptive rights,
options or other agreements of any kind, will be transferred to the several
Underwriters.
(b) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
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default under, any indenture, mortgage, deed of trust or other material
agreement or instrument to which the Selling Shareholder is a party, or any
order, rule or regulation applicable to the Selling Shareholder of any
court or of any regulatory body or administrative agency or other
governmental body having jurisdiction.
(c) The Selling Shareholder has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act, or
otherwise, in stabilization or manipulation of the price of the Company's
Class A Common Stock to facilitate the sale or resale of the Shares.
(d) The Selling Shareholder has executed and delivered this Agreement
and the Custody Agreement, and in connection herewith, the Selling
Shareholder further represents, warrants and agrees that the Selling
Shareholder has deposited with the Company, pursuant to the Custody
Agreement, the certificates in negotiable form representing the Selling
Shareholder Shares for the purpose of further delivery pursuant to this
Agreement; and the form of the Custody Agreement has been previously
delivered to you.
(e) Without having undertaken to determine independently the accuracy
or completeness of either the representations and warranties of the Company
contained herein or the information contained in the Registration Statement
and documents incorporated therein by reference, the Selling Shareholder
(i) has no reason to believe that the representations and warranties of the
Company contained in Section 1 hereof are not true and correct, and (ii) is
familiar with the Registration Statement and has no knowledge of any
material fact, condition or information not disclosed in the Registration
Statement or the documents incorporated therein by reference which has
adversely affected or may adversely affect the business of the Company or
any of the Subsidiaries; and the sale of the Selling Shareholder Shares by
the Selling Shareholder pursuant hereto is not prompted by any information
concerning the Company or any of the Subsidiaries which is not set forth in
the Registration Statement or the documents incorporated therein by
reference.
(f) On the Closing Date, all transfer and other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Selling Shareholder Shares to the Underwriters will have
been paid by the Selling Shareholder.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, (i) the
Company agree to sell to the Underwriters the Company shares, and each
Underwriter agrees, severally and not jointly, to purchase at a price of
$ per share, the number of Firm Shares set forth opposite the name of
each Underwriter in Schedule I hereof, subject to adjustments in accordance
with Section 10 hereof and (ii) the Selling Shareholder agrees to sell to
the Underwriters the Selling Shareholder Shares, subject to adjustments in
accordance with Section 10 hereof. The number of Firm Shares to be
purchased by each Underwriter from the Company and the Selling Shareholder
shall be as nearly as practical in the same proportion to the total number
of Firm Shares being sold by the Company and the Selling Shareholder as the
number of Firm Shares being purchased by each Underwriter bears to the
total number of Firm Shares to be sold hereunder. The obligations of the
Company and the Selling Shareholder shall be several and not joint.
(b) Certificates in negotiable form for the total number of Shares to
be sold hereunder by the Selling Shareholder have been placed in custody
with the Company as custodian (the "Custodian") pursuant to the Custody
Agreement executed by the Selling Shareholder for delivery of all Selling
Shareholder Shares. The Selling Shareholder specifically agrees that the
Firm Shares represented by the certificates held in custody for the Selling
Shareholder under the Custody Agreement are subject to the interest of the
Underwriters hereunder, and that the arrangements made by the Selling
Shareholder for such custody are to that extent irrevocable, and that the
obligations of the Selling Shareholder hereunder shall not be terminable by
any act or deed of the Selling Shareholder (or by any other person, firm or
corporation, including the Company, the Custodian or the Underwriters) or
by operation of law or by the occurrence
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of any other event or events, except as set forth in the Custody Agreement.
If any such event should occur prior to the delivery to the Underwriters of
the Firm Shares hereunder, certificates for the Firm Shares shall be
delivered by the Custodian in accordance with the terms and conditions of
this Agreement as if such event had not occurred. The Custodian is
authorized to receive and acknowledge receipt of the proceeds of the sale
of the Selling Shareholder Shares held by it against the delivery of such
Shares.
(c) Payment for the Firm Shares to be sold hereunder by the Company
and the Selling Shareholder is to be made via wire transfer of immediately
available funds or such other payment procedures agreed to by the parties.
Such payment and delivery are to be made at the offices of Alex. Xxxxx &
Sons Incorporated, 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, at 10:00 a.m.,
Baltimore time, on the third business day after the date of this Agreement
or at such other time and date not later than five business days thereafter
as you and the Company shall agree upon, such time and date being herein
referred to as the "Closing Date." (As used herein, "business day" means a
day on which the Nasdaq Stock Market (National Market) is open for trading
and on which banks in New York are open for business and not permitted by
law or executive order to be closed.) The certificates for the Firm Shares
will be delivered in such denominations and in such registrations as the
Representatives request in writing not later than the second full business
day prior to the Closing Date, and will be made available for inspection by
the Underwriters at least one business day prior to the Closing Date.
(d) In addition, on the basis of representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of
this Section 3. The option granted hereby may be exercised in whole or in
part by giving written notice only once within 30 days after the date of
this Agreement, by you, the Underwriters, to the Company, setting forth the
number of Option Shares as to which the several Underwriters are exercising
the option, the names and denominations in which the Option Shares are to
be registered and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares are to
be delivered shall be determined by the Underwriters but shall not be
earlier than three nor later than ten full business days after the exercise
of such option, nor in any event prior to the Closing Date (such time and
date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the
notice of exercise shall set the Closing Date as the Option Closing Date.
The number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased as
the number of Firm Shares being purchased by such Underwriter bears to the
total number of Firm Shares, adjusted by you in such manner as to avoid
fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters. You, the Underwriters, may cancel such
option at any time prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option
Closing Date via wire transfer of immediately available funds or other
payment procedures agreed to by the parties against delivery of
certificates therefor at the offices of Alex. Xxxxx & Sons Incorporated, 0
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
4. Offering by the Underwriters. It is understood that the Underwriters are
to make a public offering of the Firm Shares as soon as the Representatives deem
it advisable to do so. The Firm Shares are to be initially offered to the public
at the public offering price set forth in the Prospectus. The Underwriters may
from time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 3 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Underwriters in the
offering and sale of the Shares will take place in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters.
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5. Covenants of the Company and the Selling Shareholder.
The Company (and the Selling Shareholder with respect to Paragraph (j)
of the Section 5 only) covenants and agrees with the several Underwriters
that:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (ii) not file any amendment to the Registration Statement
or supplement to the Prospectus or documents incorporated by reference
therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance with
the Rules and Regulations and (iii) file on a timely basis all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the Shares by
the Underwriters.
(b) The Company will advise the Underwriters promptly of any
request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, or
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus
or of the institution of any proceedings for that purpose, and the
Company will use reasonable efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters in endeavoring
to qualify the Shares for sale under the securities laws of such
jurisdictions as the Underwriters may reasonably have designated in
writing and will make such applications, file such documents, and
furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Underwriters may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary
Prospectus as the Underwriters may reasonably request. The Company will
deliver to, or upon the order of, the Underwriters during the period
when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or
supplemented, as the Underwriters may reasonably request. The Company
will deliver to the Underwriters at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the
Underwriters such number of copies of the Registration Statement, but
without exhibits, and of all amendments thereto, as the Underwriters may
reasonably request, including documents incorporated by reference
therein.
(e) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will advise you in
writing when such statement has been so made available.
(f) The Company will, for a period of five years from the Closing
Date, deliver to the Underwriters copies of annual reports and copies of
all other documents, reports and information furnished by the Company to
its stockholders or filed with any securities exchange pursuant to the
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requirements of such exchange or with the Commission pursuant to the Act
or the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(g) No offering, sale, short sale or other disposition of any
Common Stock of the Company will be made for a period of 90 days after
the date of this Agreement, directly or indirectly, by the Company
otherwise than hereunder, or with the prior written consent of Alex.
Xxxxx & Sons Incorporated, except that (i) the Company may, without such
consent, issue shares as consideration for future acquisitions and grant
options or issue shares of Common Stock pursuant to the exercise of
options granted under the Company's current option plans and (ii) the
Company may issue shares of its Class A Common Stock and Class B Common
Stock pursuant to that certain Agreement and Plan of Merger between the
Selling Shareholder and Xxxxxxxx Media, Inc., a Texas Corporation, as
amended (the "Merger Agreement").
(h) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in the
reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference
in the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with the law.
(i) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on the Nasdaq Stock Market.
(j) The Selling Shareholder agrees, on behalf of itself and its
subsidiaries (other than the Company), not to offer, sell, sell short or
otherwise dispose of any shares of Class A or Class B Common Stock of
the Company or other capital stock of the Company, or any other
securities convertible, exchangeable or exercisable for common shares or
derivative of common shares owned by such person or request the
registration for the offer or sale of any of the foregoing (or as to
which such person has the right to direct the disposition of) for a
period of 90 days after the date of this Agreement, directly or
indirectly, except with the prior written consent of Alex. Xxxxx & Sons
Incorporated ("Lockup Agreements").
(k) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act").
(l) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar for
the Common Stock.
(m) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
6. Costs and Expenses. The Company will pay all costs, expenses and fees
incident to the performance of the obligations of the Company and the Selling
Shareholder under this Agreement, including, without limiting the generality of
the foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company and the Selling Shareholder; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the
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Prospectus, this Agreement, the Invitation Letter, the Blue Sky Survey and any
supplements or amendments thereto; the filing fees of the Commission; the filing
fees of the NASD; and the expenses, including the fees and disbursements of
counsel for the Underwriters, up to $10,000, incurred in connection with the
qualification of the Shares under State securities or Blue Sky laws. The Company
and the Selling Shareholder shall not, however, be required to pay for any of
the Underwriters' expenses (other than those related to qualification under
State securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 8 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
7 hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms is due to the
default or omission of any Underwriter, then the Company shall reimburse the
several Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company and the Selling Shareholder shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Shares.
7. Conditions of Obligations of the Underwriters. The several obligations
of the Underwriters to purchase the Firm Shares on the Closing Date and the
Option Shares, if any, on the Option Closing Date are subject to the accuracy,
as of the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been made,
and any request of the commission for additional information (to be
included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable
satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission and no
injunction, restraining order, or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance of the Shares.
(b) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Company and the Selling
Shareholder, or Jeffer, Mangels, Xxxxxx & Marmoro LLP, counsel for the
Company (as such respective counsel shall mutually determine) dated the
Closing Date or the Option Closing Date, as the case may be, addressed to
the Underwriters to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus; each of the Subsidiaries has been duly
incorporated and, except as set forth in Exhibit A hereto, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus; the Company and each of the Subsidiaries are duly qualified
to transact business in all jurisdictions in which the conduct of their
business requires such qualification, or in which the failure to qualify
would have a materially adverse effect upon the business of the Company
and the Subsidiaries taken as a whole; and the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Company or a Subsidiary; and, to the best of such counsel's knowledge,
the outstanding shares of capital stock of each of the Subsidiaries are
owned free and clear of all liens, encumbrances and security interests,
except for a lien on 100% of the outstanding shares of each of the
Subsidiaries granted to NationsBank of Texas, N.A., as agent on behalf
of multiple lenders, and no options, warrants or other rights to
purchase, agreements or other
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obligations to issue, or other rights to convert any obligations into
any shares of capital stock or of ownership interests in the
Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus; the
authorized shares of its Class A and Class B Common Stock have been duly
authorized; the outstanding shares of its Class A Common Stock have been
duly authorized and validly issued and are fully-paid and
non-assessable; all of the Shares conform to the description thereof
contained in the Prospectus; the Shares, including the Option Shares, if
any, to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable
when issued and paid for as contemplated by this Agreement; and, to the
best knowledge of such counsel, no preemptive rights of stockholders
exist with respect to any of the Shares or the issue and sale thereof.
(iii) Except as described in or contemplated by the Prospectus, to
the knowledge of such counsel, there are no outstanding securities of
the Company convertible or exchangeable into or evidencing the right to
purchase or subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants, or rights of
any character obligating the Company to issue any shares of its capital
stock or any securities convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of such stock; and
except as described in the Prospectus, to the knowledge of such counsel,
no holder of any securities of the Company or any other person has the
right, contractual or otherwise, which has not been satisfied or
effectively waived, to cause the Company to sell or otherwise issue to
them, or to permit them to underwrite the sale of, any of the Shares or
the right to have any Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of the
filing of the Registration Statement, to require registration under the
Act of any shares of Common Stock or other securities of the Company.
(iv) The Registration Statement has become effective under the Act
and, to the best of the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending or
threatened under the Act.
(v) The Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto and documents
incorporated by reference therein comply as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable and the applicable rules and regulations thereunder (except
that such counsel need express no opinion as to, the statistical
information contained in the Prospectus or financial statements,
schedules and other financial information incorporated by reference
therein). The conditions for the use of Form S-3, set forth in the
General Instructions thereto, have been satisfied.
(vi) The statements under the captions "Risk Factors -- Xxxxxxxx
Merger," "-- Relationship Between the Company and Clear Channel," "The
Xxxxxxxx Merger," "Management -- Management of the Company Following the
Xxxxxxxx Merger," "Shares Eligible for Future Sale -- Registration
Rights" and "Description of Capital Stock" in the Prospectus, insofar as
such statements constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and correctly present
the information called for with respect to such documents and matters.
(vii) To the best of such counsel's knowledge, there are no
contracts or documents required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the
Prospectus (excluding any document incorporated therein by reference)
which are not so filed or described as required, and such contracts and
documents as are summarized in the Registration Statement or the
Prospectus (excluding any document incorporated therein by reference)
are fairly summarized in all material respects.
(viii) To the best of such counsel's knowledge, there are no
material legal proceedings pending or threatened against the Company or
any of the Subsidiaries which is of a character required to be disclosed
in the Prospectus and which has not been properly disclosed therein.
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(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, the Certificate of Incorporation or
By-laws of the Company, or any agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries may be bound (other than
licenses or permits granted by the Federal Communications Commission, on
which such counsel need not express any opinion), except a conflict,
breach or default which would not have a materially adverse effect on
the business or financial condition of the Company and the Subsidiaries
taken as a whole.
(x) This Agreement has been duly authorized, executed and delivered
by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body having jurisdiction over the Company is necessary in
connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated (other than as may
be required by the National Association of Securities Dealers, Inc. or
as required by State securities and Blue Sky laws as to which such
counsel need express no opinion) except such as have been obtained or
made, specifying the same.
(xii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and
application of the net proceeds therefor as described in the Prospectus,
required to register as an investment company under the 1940 Act.
(xiii) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by the Selling Shareholder.
(xiv) The Selling Shareholder has full legal right, power and
authority, and any approval required by law (other than as required by
the NASD or state securities and Blue Sky laws as to which such counsel
need express no opinion), to sell, assign, transfer and deliver the
Selling Shareholder Shares by such Selling Shareholder.
(xv) The Underwriters (assuming they are bona fide purchasers
within the meaning of the Uniform Commercial Code) have acquired good
and marketable title to the Selling Shareholder Shares, free and clear
of all claims, liens, encumbrances and security interests whatsoever.
In rendering such opinion, such counsel may rely (A) as to matters
governed by the laws of states other than California and Delaware or
Federal laws on local counsel in such jurisdictions, provided that in each
case such counsel shall state that they believe that they and the
Underwriters are justified in relying on such other counsel and (B) as to
matters of fact, on certificates of responsible officers of the Company and
certificates or other written statements of officers or departments of
various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and any Subsidiary. In addition
to the matters set forth above, such opinion shall also include a statement
to the effect that nothing has come to the attention of such counsel which
leads them to believe that the Registration Statement, as of the time it
became effective under the Act, the Prospectus or any amendment or
supplement thereto, on the date it was filed pursuant to Rule 424(b) and
the Registration Statement and the Prospectus, or any amendment or
supplement thereto, as of the Closing Date or the Option Closing Date, as
the case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading (except that such counsel need
express no view as to matters pertaining to statistical information
contained in the Prospectus or financial statements, schedules and other
financial information contained or incorporated by reference in the
Prospectus). With respect to such statement, such counsel may state that
their belief is based upon the procedures set forth therein, but is without
independent check and verification.
(c) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Wiley, Rein and
Fielding, special Federal Communications Commission
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counsel to the Company, dated the Closing Date or the Option Closing Date,
as the case may be, addressed to the Underwriters to the effect that:
(i) The statements under the captions "Risk Factors -- Government
Regulation of Broadcasting Industry" contained in the Prospectus and
"Item 1. Business -- Federal Regulation of Radio Broadcasting" contained
in the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate summaries
and fairly and correctly present the information called for with respect
to such documents and matters.
(ii) No approval, consent, order, authorization, designation,
declaration or filing by or with the Federal Communications Commission
is necessary in connection with the execution and delivery of this
Agreement and the consummation of the transactions herein contemplated
except such as have been obtained or made, specifying the same.
(d) The Underwriters shall have received from Piper & Marbury L.L.P.,
counsel for the Underwriters, an opinion dated the Closing Date or the
Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (ii), (iv), (v) and (x) of Paragraph (b) of this
Section 7, and that the Company is a validly organized and existing
corporation under the laws of the State of Delaware. In rendering such
opinion Piper & Marbury L.L.P. may rely as to all matters governed other
than by the laws of the State of Maryland and Delaware or Federal laws on
the opinion of counsel referred to in paragraph (b) of this Section 7. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that the Registration Statement, as of
the time it became effective under the Act, and the Prospectus or any
amendment or supplement thereto, on the date it was filed pursuant to Rule
424(b) and the Registration Statement and the Prospectus, or any amendment
or supplement thereto, as of the Closing Date or the Option Closing Date,
as the case may be, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading (except that such counsel need
express no view as to financial statements, schedules and other financial
information included therein). With respect to such statement, Piper &
Marbury L.L.P. may state that their belief is based upon the procedures set
forth therein, but is without independent check and verification.
(e) The Underwriters shall have received at or prior to the Closing
Date from Piper & Marbury L.L.P. a memorandum or summary, in form and
substance satisfactory to the Underwriters, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
the State securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.
(f) The Representatives shall have received on each of the date
hereof, the Closing Date or the Option Closing Date, as the case may be,
signed letters from Ernst & Young LLP, KPMG Peat Marwick LLP and Miller,
Kaplan, Arase & Co., dated the Closing Date or the Option Closing Date, as
the case may be, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letters signed by such
firms and dated and delivered to the Underwriters on the date hereof that
nothing has come to their attention during the period from the date five
days prior to the date hereof, to a date not more than five days prior to
the Closing Date or the Option Closing Date, as the case may be, which
would require any change in their letter dated the date hereof if it were
required to be dated and delivered on the Closing Date or the Option
Closing Date, as the case may be. All such letters shall be in form and
substance satisfactory to the Underwriters.
(g) The Underwriters shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates of
the President and Chief Executive Officer and the Senior Vice President and
Chief Financial Officer of the Company to the effect that, as of the
Closing Date or the Option Closing Date, as the case may be, each of them
severally represents as follows:
(i) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been
taken or are, to his knowledge, contemplated by the Commission.
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(ii) He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed in the
Registration Statement which is not so disclosed.
(iii) He has carefully examined the Registration Statement and the
Prospectus and, in his opinion to the best of his knowledge, as of the
effective date of the Registration Statement, the statements contained
in the Registration Statement were true and correct in all material
respects, and such Registration Statement and Prospectus did not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in his opinion,
since the effective date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to or an
amendment of the Prospectus which has not been so set forth in such
supplement or amendment.
(h) The Company shall have furnished to the Underwriters such further
certificates and documents confirming the representations and warranties
contained herein and related matters as the Underwriters may reasonably
have requested.
(i) The Company Shares and Option Shares, if any, have been approved
for designation upon official notice of issuance on the Nasdaq Stock Market
(National Market).
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Underwriters and to Piper & Marbury L.L.P., counsel
for the Underwriters.
If any of the conditions hereinabove provided for in this Section 7 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Underwriters by notifying the Company and the Selling Shareholder of such
termination in writing or by telegram at or prior to the Closing Date or the
Option Closing Date, as the case may be.
In such event, the Company and the Selling Shareholder and the Underwriters
shall not be under any obligation to each other (except to the extent provided
in Sections 6 and 9 hereof).
8. Conditions of the Obligations of the Company and the Selling
Shareholder. The obligations of the Company and the Selling Shareholder to sell
and deliver the Shares required to be delivered as and when specified in this
Agreement are subject to the conditions that at the Closing Date or the Option
Closing Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
9. Indemnification
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the Act
against any losses, claims, damages or liabilities to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or through the
Representatives specifically for use in the preparation thereof, and provided
further that the Company shall not be liable with respect to any untrue
statement contained in or any omission from a Preliminary Prospectus if the
untrue statement contained in or such omission from such Preliminary Prospectus
was corrected in the applicable Prospectus and the person
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asserting any such loss, liability, claim or damage was not given or sent a copy
of the applicable Prospectus (excluding the documents incorporated by reference
therein) in the manner and at such time as required by the Act, provided the
Company has furnished you copies of such applicable Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act against any losses, claims, damages or liabilities to which
such Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading to the extent, but in any such case only
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company or such Underwriter directly or through the
Selling Shareholder's representatives specifically for inclusion therein, and
the Selling Shareholder will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Selling Shareholder will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or the Selling
Shareholder by or through the Representatives specifically for use in the
preparation thereof, and provided further that the Selling Shareholder shall not
be liable with respect to any untrue statement contained in or any omission from
a Preliminary Prospectus if the untrue statement contained in or such omission
from such Preliminary Prospectus was corrected in the applicable Prospectus and
the person asserting any such loss, liability, claim or damage was not given or
sent a copy of the applicable Prospectus (excluding the documents incorporated
by reference therein) in the manner and at such time as required by the Act,
provided the Company has furnished you copies of such applicable Prospectus. In
no event, however, shall the liability of the Selling Shareholder for
indemnification under this Section 9(b) exceed the lesser of (i) that proportion
of the total losses, claims, damages or liabilities indemnified against equal to
the proportion of total Shares sold hereunder which is sold by the Selling
Shareholder and (ii) the proceeds received by the Selling Shareholder from the
Underwriters in the Offering. This indemnity agreement will be in addition to
any liability which the Selling Shareholder may otherwise have.
(c) Each Underwriter will indemnify and hold harmless the Company, each of
its directors or nominees for director, each of its officers who have signed the
Registration Statement, the Selling Shareholder, each of its officers and
directors, and each person, if any, who controls the Company or the Selling
Shareholder within the meaning of the Act, against any losses, claims, damages
or liabilities to which the Company, the Selling Shareholder or any such
director, nominee for director, officer, or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made; and
will reimburse any legal or other expenses reasonably incurred by the Company,
the Selling Shareholder or any such director, nominee for director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter or through the Representatives on behalf of such Underwriter
specifically for
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use in the preparation thereof. This indemnity agreement will be in addition to
any liability which such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 9, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing. No indemnification provided for in Section 9(a), (b) or (c)
shall be available to any party who shall fail to give notice as provided in
this Section 9(d) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of the provisions of Section 9(a), (b) or (c). In case any such proceeding shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 9(a), by the Selling Shareholder in the case of
parties indemnified pursuant to Section 9(b), and by the Company in the case of
parties indemnified pursuant to Section 9(c). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under Section 9(a), (b) or
(c) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholder on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholder on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Shareholder bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Selling Shareholder on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No party shall be
held liable for contribution with respect to any claim or action settled without
its consent which shall not be
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unreasonably withheld. Such consent shall be given within three business days
from the date on which the party requesting consent provides a written request
to the other party.
The Company, the Selling Shareholder and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 9(e)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
9(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 9(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 9(e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 9 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Shareholder set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, the Selling Shareholder or
their respective directors, nominees for director or officers or any persons
controlling the Company or the Selling Shareholder, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or to the Company, the Selling
Shareholder or their respective directors or officers, or any person controlling
the Company or the Selling Shareholder, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Default by Underwriters. If on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the Company
or the Selling Shareholder), the non-defaulting Underwriters shall use their
best efforts to procure within 24 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company and the Selling
Shareholder such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If during such 24
hours you, the non-defaulting Underwriters, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company or you
as the Underwriters will have the right, by written notice given within the next
24-hour period to the parties to this
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Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company except to the extent provided in
Section 9 hereof. In the event of a default by any Underwriter or Underwriters,
as set forth in this Section 10, the Closing Date or Option Closing Date, as the
case may be, may be postponed for such period, not exceeding seven days, as you,
the non-defaulting Underwriters, may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
11. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telegraphed and
confirmed as follows: if to the Underwriters, to Alex. Xxxxx & Sons
Incorporated, 0 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Managing Director; if to the Company, to Heftel Broadcasting
Corporation, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Attention:
Xxxx X. Xxxxxxxx, Senior Vice President and Chief Financial Officer; and if to
the Selling Shareholder to Clear Channel Communications, Inc., Heftel
Broadcasting Corporation, 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx
00000, Attention: X. Xxxxx Xxxx, President and Chief Executive Officer.
12. Termination. This Agreement may be terminated by you by notice to the
Company and the Selling Shareholder as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 A.M.
on the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the effective date of the Registration Statement, any
material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of
the Company and its Subsidiaries taken as a whole or the earnings, business
affairs, management or business prospects of the Company and its
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) any outbreak of hostilities or other national or
international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, calamity, crisis or change on
the financial markets of the United States would, in your reasonable
judgment, make the offering or delivery of the Shares impracticable, (iii)
suspension of trading in securities on the New York Stock Exchange or the
American Stock Exchange or limitation on prices (other than limitations on
hours or numbers of days of trading) for securities on either such
Exchange, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or
other governmental authority which in your reasonable opinion materially
and adversely affects or will materially or adversely affect the business
or operations of the Company and the Subsidiaries taken as a whole, (v)
declaration of a banking moratorium by either federal or New York State
authorities, (vi) the suspension of trading of the Company's common stock
by the Commission on the Nasdaq Stock Market or (vii) the taking of any
action by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States; or
(c) as provided in Sections 7 and 10 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company, as
to any obligation of the Underwriters to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Sections 7 and 10 of this
Agreement.
13. Successors. This Agreement has been and is made solely for the
benefit of the Underwriters, the Company, the Selling Shareholder and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Shares merely because of such purchase.
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20
14. Information Provided by Underwriters. The Company, the Selling
Shareholder and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company or the Selling
Shareholder for inclusion in any Prospectus or the Registration Statement
consists of the information set forth in the last paragraph on the front cover
page (insofar as such information relates to the Underwriters), legends required
by Item 502(d) of Regulation S-K under the Act and the information under the
caption "Underwriting" in the Prospectus.
15. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
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If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholder and the several Underwriters in accordance with its terms.
Very truly yours,
HEFTEL BROADCASTING CORPORATION
By
-------------------------------
X. Xxxxx Xxxx
President and Chief Executive
Officer
CLEAR CHANNEL COMMUNICATIONS, INC.
By
-------------------------------
X. Xxxxx Xxxx
President and Chief Executive
Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
ALEX. XXXXX & SONS INCORPORATED
CREDIT SUISSE FIRST BOSTON CORP.
XXXXXX BROTHERS INC.
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
By ALEX. XXXXX & SONS INCORPORATED
By
-------------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
------------------------------------------------------------------------- ---------------------
Alex. Xxxxx & Sons Incorporated..........................................
Credit Suisse First Boston Corp..........................................
Xxxxxx Brothers Inc......................................................
Xxxxxxxxxx Securities....................................................
Xxxxx Xxxxxx Inc.........................................................
---------
Total.......................................................... 3,850,000
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