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EXHIBIT 1.2
31,000,000 SHARES
CAPSTAR BROADCASTING CORPORATION
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
SUBSCRIPTION AGREEMENT
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
, ▇▇▇▇
To: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
BT ALEX. ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
BEAR, ▇▇▇▇▇▇▇ INTERNATIONAL LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
c/o: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED ("CSFBL")
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs:
1. Introductory. Capstar Broadcasting Company, a Delaware
corporation ("Company"), proposes to issue and sell (the "International
Offering") to the several Managers named in Schedule A hereto (the "Managers")
6,200,000 shares ("International Firm Shares") of its Class A Common Stock, par
value $.01 per share (the "Class A Common Stock").
It is understood that the Company is concurrently entering into an
Underwriting Agreement, dated the date hereof (the "Underwriting Agreement"),
with certain United States underwriters listed in Schedule A thereto (the "U.S.
Underwriters"), for whom Credit Suisse First Boston Corporation ("CSFBC"), BT
Alex. ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated are acting as
representatives (the "U.S. Representatives"), relating to the concurrent
offering and sale of 24,800,000 shares of Class A Common Stock (" U.S. Firm
Shares") in the United States and Canada (the "U.S. Offering").
In addition, the Company proposes to issue and sell (i) to the U.S.
Underwriters, at the option of the U.S. Underwriters, an aggregate of not more
than 3,720,000 additional shares of Class A Common Stock ("U.S. Optional
Shares") and (ii) to the Managers, at the option of the Managers, an aggregate
of not more than 930,000 additional shares of Class A Common Stock
("International Optional Shares"). The U.S. Firm Shares and the U.S.
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Optional Shares are hereinafter called the "U.S. Shares"; the International
Firm Shares and the International Optional Shares are hereinafter called the
"International Shares"; the U.S. Firm Shares and the International Firm Shares
are hereinafter called the "Firm Shares"; the U.S. Optional Shares and the
International Optional Shares are hereinafter called the "Optional Shares".
The U.S. Shares and the International Shares are collectively referred to as
the "Offered Shares". To provide for the coordination of their activities, the
U.S. Underwriters and the Managers have entered into an Agreement Between U.S.
Underwriters and Managers which permits them, among other things, to sell the
Offered Shares to each other for purposes of resale.
The Company hereby agrees with the several Managers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Managers that:
(a) A registration statement (No. 333-48819) relating to
the Offered Shares, including a form of prospectus relating to the
U.S. Shares and a form of prospectus relating to the International
Shares being offered in the International Offering has been filed with
the Securities and Exchange Commission (the "Commission") and either
(i) has been declared effective under the Securities Act of 1933, as
amended (the "Securities Act"), and is not proposed to be amended or
(ii) is proposed to be amended by amendment or post- effective
amendment. If such registration statement (the "initial registration
statement") has been declared effective, either (A) an additional
registration statement (the "additional registration statement")
relating to the Offered Shares may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Securities Act and,
if so filed, has become effective upon filing pursuant to such Rule
and the Offered Shares all have been duly registered under the
Securities Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered Shares
will all have been duly registered under the Securities Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Securities Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement
or, if filed prior to the execution and delivery of this Agreement,
the additional registration statement means (i) if the Company has
advised the Representatives that it does not propose to
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amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "Effective Time" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Securities Act, is hereinafter referred to as the
"Initial Registration Statement." The additional registration
statement, as amended at its Effective Time, including the contents of
the initial registration statement incorporated by reference therein
and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement". The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the U.S.
Shares and the form of prospectus relating to the International
Shares, each as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act
or (if no such filing is required) as included in the Registration
Statement, are hereinafter referred to as the "U.S. Prospectus" and
the "International Prospectus," respectively, and collectively as the
"Prospectuses". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Securities Act and the rules and regulations of
the Commission (the "Rules and Regulations") and did not include 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, (ii) on the Effective Date of
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the Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all respects to the
requirements of the Securities Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iii) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of each of the
Prospectuses pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectuses are included, each Registration
Statement and each of the Prospectuses will conform, in all respects
to the requirements of the Securities Act and the Rules and
Regulations, and none of such documents includes, or will include, 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 not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and each of
the Prospectuses will conform in all respects to the requirements of
the Securities Act and the Rules and Regulations, none of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or either of the Prospectuses based upon
written information furnished to the Company by any Underwriter
through the Representatives or by any Manager through CSFBL
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b)
hereof.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectuses;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and the Subsidiaries (as defined below) taken as a whole ("Material
Adverse Effect").
(d) Each subsidiary of the Company and each subsidiary to
be acquired in the SFX Acquisition (as defined in the Prospectuses)
(collectively, the "Subsidiaries") has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectuses;
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and each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each Subsidiary, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except for liens disclosed in the
Prospectuses.
(e) The Offered Shares and all other outstanding shares
of capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Shares have been delivered and paid for in accordance with
this Agreement and the Subscription Agreement on each Closing Date (as
defined below), such Offered Shares will have been, validly issued,
fully paid and nonassessable and will conform to the description
thereof contained in the Prospectuses; the stockholders of the Company
have no preemptive rights with respect to the Class A Common Stock;
and except as described in the Prospectuses, there are no outstanding
options, warrants or other rights calling for the issuance of, or any
commitment, plan or arrangement to issue, any shares of capital stock
of the Company or any security convertible into or exchangeable or
exercisable for any capital stock of the Company.
(f) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter or Manager for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(g) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(h) The Offered Shares have been approved for listing on
the New York Stock Exchange subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body (including, without
limitation, the Federal Communications Commission (the "FCC")) or any
court is required for the consummation of the transactions
contemplated by this Agreement or the Subscription
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Agreement in connection with the issuance and sale of the Offered
Shares by the Company, except such as have been obtained and made
under the Securities Act and such as may be required under state
securities laws.
(j) The execution, delivery and performance of this
Agreement and the Subscription Agreement, and the issuance and sale of
the Offered Shares will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their properties, except for
breaches, violations or defaults that would not individually or in the
aggregate have a Material Adverse Effect, or any agreement or
instrument to which the Company or any such Subsidiary is a party or
by which the Company or any such Subsidiary is bound or to which any
of the properties of the Company or any such Subsidiary is subject, or
the charter or by-laws of the Company or any such Subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Shares pursuant to this Agreement and the Subscription
Agreement, respectively.
(k) This Agreement and the Subscription Agreement have
been duly authorized, executed and delivered by the Company.
(l) Except as disclosed in the Prospectuses, the Company
and the Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them that are
material to the Company and its Subsidiaries considered as a whole, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectuses, the Company and the Subsidiaries hold any such leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(m) The Company and the Subsidiaries possess adequate
certificates, authorities or permits and hold all necessary licenses
(including without limitation licenses issued by the FCC) issued by
appropriate governmental agencies or bodies necessary to conduct the
business now operated by them, except where the failure to possess
such certificates, authorities or permits or to hold such licenses
would not individually or in the aggregate have a Material Adverse
Effect, and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority,
permit or license that, if determined adversely to the Company or any
of the Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
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(n) No labor dispute with the employees of the Company or
any Subsidiary exists or, to the knowledge of the Company, is imminent
that could reasonably be expected to have a Material Adverse Effect.
(o) The Company and the Subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, except where the failure to own,
possess or acquire such intellectual property rights would not
individually or in the aggregate have a Material Adverse Effect, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of the Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(p) Each of the Company and the Subsidiaries has filed
all necessary federal, state, local and foreign income and franchise
tax returns, except where the failure to file such returns would not
have a Material Adverse Effect, and each of the Company and the
Subsidiaries has paid all taxes shown as due thereon; and other than
tax deficiencies that the Company or its Subsidiaries is contesting
in good faith and for which adequate reserves have been provided,
there is no tax deficiency that has been asserted against the Company
or the Subsidiaries that would, individually or in the aggregate, have
a Material Adverse Effect.
(q) Except as disclosed in the Prospectuses, neither the
Company nor any of the Subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(r) Except as disclosed in the Prospectuses, there are no
pending actions, suits, proceedings, inquiries or investigations
before or brought by any court or governmental agency or body
(including, without limitation, the FCC) against or affecting the
Company, any of the Subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of the
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this
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Agreement or the Subscription Agreement, or which are otherwise
material in the context of the sale of the Offered Shares; and no such
actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(s) The financial statements included in each
Registration Statement and the Prospectuses present fairly the
financial position of the Company and its consolidated Subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and, except as otherwise disclosed in the
Prospectuses, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the schedules included in
each Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectuses provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(t) Except as disclosed in the Prospectuses, since the
date of the latest audited financial statements included in the
Prospectuses there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and the Subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectuses, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(u) The statistical and market-related data included in
the Prospectuses are based on or derived from sources that the Company
believes to be accurate and reliable.
(v) Each of the Company and the Subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains internal
accounting controls that provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain profitability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(w) The Company is not and, after giving effect to the
offering and sale of the Offered Shares and the application of the
proceeds thereof as described in the
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Prospectuses, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(x) Each of Coopers & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
and Ernst & Young LLP, which firms have examined the consolidated
financial statements as set forth in their reports included in the
Prospectuses, is an independent public accounting firm within the
meaning of the Securities Act and the rules and regulations
promulgated thereunder.
(y) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075 Florida
Statutes, and the Company agrees to comply with such Section if prior
to the completion of the distribution of the Offered Shares it
commences doing such business.
3. Purchase, Sale and Delivery of Offered Shares. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Managers, and the Managers agree, severally and not jointly, to purchase from
the Company, at a purchase price of U.S. $ per share, the
respective numbers of International Firm Shares set forth opposite the names of
the Managers in Schedule A hereto.
The Company will deliver the International Firm Shares to CSFBL for
the accounts of the Managers, against payment of the purchase price in U.S.
dollars in Federal (same day) funds by official bank check or checks or wire
transfer to an account at a bank acceptable to CSFBL drawn to the order of the
Company at the office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, at 10:00 A.M., New York
time, on May ____, 1998, or at such other time not later than seven full
business days thereafter as CSFBL and the Company determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities
for all the Offered Shares sold pursuant to the U.S. Offering and the
International Offering. The certificates for the International Firm Shares so
to be delivered will be in definitive form, in such denominations and
registered in such names as CSFBL requests and will be made available for
checking and packaging at the above office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectuses,
the Managers may purchase all or less than all of the International Optional
Shares at the purchase price to be paid for the International Firm Shares. The
International Optional Shares to be purchased by the Managers on any Optional
Closing Date shall be in the same proportion to all the Optional Shares to be
purchased by the Managers and U.S. Underwriters on such Optional Closing Date
as the International Firm Shares bear to all the Firm Shares. The Company
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agrees to sell to the Managers such International Optional Shares and the
Managers agree, severally and not jointly, to purchase such International
Optional Shares. Such International Optional Shares shall be purchased for the
account of each Manager in the same proportion as the number of International
Firm Shares set forth opposite such Manager's name bears to the total number of
International Firm Shares (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Managers only for the purpose of
covering over-allotments made in connection with the sale of the International
Firm Shares. No Optional Shares shall be sold or delivered unless the
International Firm Shares and the U.S. Firm Shares previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Shares or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC on behalf of the Managers and the U.S. Underwriters to the
Company. It is understood that CSFBC is authorized to make payment for and
accept delivery of such Optional Shares on behalf of the U.S. Underwriters and
Managers pursuant to the terms of CSFBC's instructions to the Company.
Each time for the delivery of and payment for the International
Optional Shares, being herein referred to as an "Optional Closing Date", which
may be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be
determined by CSFBC but shall be not later than five full business days after
written notice of election to purchase Optional Shares is given. The Company
will deliver the International Optional Shares being purchased on each Optional
Closing Date to CSFBL for the accounts of the several Managers, against payment
of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBL
drawn to the order of the Company, at the above office of Weil, Gotshal &
▇▇▇▇▇▇ LLP. The certificates for the International Optional Shares will be in
definitive form, in such denominations and registered in such names as CSFBL
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of Weil, Gotshal
& ▇▇▇▇▇▇ LLP, at a reasonable time in advance of such Optional Closing Date.
The Company will pay to the Managers as aggregate compensation for
their commitments hereunder and for their services in connection with the
purchase of the International Shares and the management of the offering
thereof, if the sale and delivery of the International Shares to the Managers
provided herein is consummated, an amount equal to U.S.$ per
International Share purchased, which may be divided among the Managers in such
proportions as they may determine. Such payment will be made on the First
Closing Date in the case of the International Firm Shares and on each Optional
Closing Date in the case of the International Optional Shares sold to the
Manager on such Closing Date, in each case by way of deduction by the Managers
of said amount from the purchase price for the International Shares referred to
above.
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4. Offering by Managers. It is understood that the several
Managers propose to offer the International Shares for sale to the public as
set forth in the International Prospectus.
In connection with the distribution of the International Shares, the
Managers, through a stabilizing manager, may over-allot or effect transactions
on any exchange, in any over-the-counter market or otherwise which stabilize or
maintain the market prices of the International Shares at levels other than
those which might otherwise prevail, but in such event and in relation thereto,
the Managers will act for themselves and not as agents of the Company, and any
loss resulting from over-allotment and stabilization will be borne, and any
profit arising therefrom will be beneficially retained, by the Managers. Such
stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company. The Company agrees with
the several Managers that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file each of the Prospectuses with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBL, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
The Company will advise CSFBL promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a
portion of the Offered Shares under the Securities Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time either Prospectus is printed and
distributed to any Manager or U.S. Underwriter, or will make such
filing at such later date as shall have been consented to by CSFBL.
(b) The Company will advise CSFBL promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or either of the related prospectuses
or the Initial Registration Statement, the Additional Registration
Statement (if any) or either of the Prospectuses and will not effect
such amendment or supplementation without CSFBL's prior consent; and
the Company will also advise CSFBL promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to
the execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or either of the
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Prospectuses and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Shares is required to be delivered under the Securities Act in
connection with sales by any U.S. Underwriter, Manager or dealer, any
event occurs as a result of which either or both of the Prospectuses
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
either or both of the Prospectuses to comply with the Securities Act,
the Company will promptly notify CSFBL of such event and will promptly
prepare, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither CSFBL's consent to, nor the Managers'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Securities Act. For the purpose of
the preceding sentence, "Availability Date" means the 45th day after
the end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Managers copies of
the Registration Statement (four) of which will be signed and will
include all exhibits), each preliminary prospectus relating to the
International Shares, and, until completion of the distribution of the
International Shares as determined by CSFBL, the International
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBL requests. The International
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Managers all such documents.
(f) No action has been or, prior to the completion of the
distribution of the Offered Shares, will be taken by the Company in
any jurisdiction outside the United States and Canada that would
permit a public offering of the Offered Shares, or
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13
possession or distribution of the International Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus
issued in connection with the offering of the Offered Shares, or any
other offering material, in any country or jurisdiction where action
for that purpose is required.
(g) During the period of five years hereafter, the
Company will furnish to CSFBL and, upon request, to each of the other
Managers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to CSFBL (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company
as CSFBL may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for the filing
fee incidental to, and the reasonable fees and disbursements of
counsel to the Managers in connection with, the review by the National
Association of Securities Dealers, Inc. of the Offered Shares, for any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Shares and for
expenses incurred in distributing preliminary prospectuses and the
Prospectuses (including any amendments and supplements thereto) to the
Managers.
(i) For a period of 180 days after the date of the
initial public offering of the Offered Shares, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any additional shares
of its shares of Class A Common Stock or securities convertible into
or exchangeable or exercisable for any shares of Class A Common Stock,
or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of
CSFBC, except (i) pursuant to or in connection with employee stock
option plans, the Warrants or other employee or non-employee director
compensation arrangements or agreements, in each case, in effect on
the date of the Prospectuses; (ii) in connection with any acquisition
by the Company so long as the recipient of such securities agrees in
writing prior to such issuance to be subject to the foregoing lockup
for the remainder of the 180-day lockup period; (iii) in connection
with the conversion of shares of Class B Common Stock or Class C
Common Stock; and (iv) the sale and issuance of shares of Common Stock
to new directors of the Company in connection with their election or
appointment to the board of directors of the Company.
6. Conditions of the Obligations of the Managers. The
obligations of the several Managers to purchase and pay for the International
Firm Shares on the First Closing Date and the International Optional Shares to
be purchased on each Optional Closing Date will be subject to the accuracy of
the representations and warranties on the part of the Company
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herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Managers shall have received letters, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Coopers & ▇▇▇▇▇▇▇, L.L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Ernst &
Young LLP (the "Independent Accountants") in the agreed form.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBL. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time either Prospectus is printed
and distributed to any Manager or U.S. Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBL.
If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, each of the
Prospectuses shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to such Closing Date, no stop order suspending the effectiveness
of a Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of
the Company or the Managers, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (A) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of
CSFBL, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the International Shares, whether in
the primary market or in respect of dealings in the secondary market,
or (B)(i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of CSFBL, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the International Shares; (ii)
any downgrading in the rating of any debt securities or preferred
stock of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act),
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or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal, New York or Delaware authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by the United States Congress or
any other substantial national or international calamity or emergency
if, in the judgment of CSFBL, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the International Shares.
(d) The Managers shall have received opinions, dated such
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Company, and
Wiley, Rein & Fielding, FCC counsel for the Company, in the agreed
form.
(e) The Managers shall have received from Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel for the Managers, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Shares delivered on such Closing Date, the
Registration Statements, the Prospectuses and other related matters as
the Managers may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(f) The Managers shall have received a certificate, dated
such Closing Date, of the President or any Vice President and the
Chief Financial Officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied in all
material respects with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission;
the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Securities Act and
Rule 3a, Part 202 -- Informal and Other Procedures under the
Securities Act, prior to the time either Prospectus was printed and
distributed to any Manager or U.S. Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectuses,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
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16
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectuses or as described in
such certificate.
(g) The Managers shall have received letters, dated such
Closing Date, of the Independent Accountants which meet the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes
of this subsection.
(h) On such Closing Date, the U.S. Underwriters shall
have purchased the U.S. Firm Shares or the U.S. Optional Shares, as
the case may be, pursuant to the Underwriting Agreement.
(i) The merger of SBI Radio Acquisition Corporation with and
into SFX Broadcasting, Inc. shall have been consummated pursuant to
the terms of the Agreement and Plan of Merger among SBI Holding
Corporation, SBI Radio Acquisition Corporation and SFX Broadcasting,
Inc., dated as of August 24, 1997, as amended.
Documents described as being "in the agreed form" are documents which are in
the forms which have been initialed for the purpose of identification by Weil,
Gotshal & ▇▇▇▇▇▇ LLP, copies of which are held by the Company and CSFBL with
such changes as CSFBL may approve. The Company will furnish the Managers with
such conformed copies of such opinions, certificates, letters and documents as
the Managers reasonably request. CSFBL may in its sole discretion waive on
behalf of the Managers compliance with any conditions to the obligations of the
Managers hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Manager against any losses, claims, damages or
liabilities, joint or several, to which such Manager may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Manager for any legal or other expenses
reasonably incurred by such Manager in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; 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 in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
16
17
Manager through CSFBL specifically for use therein, it being understood and
agreed that the only information furnished by any Manager consists of the
information described as such in subsection (b) below; and, provided further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of
any Manager from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Manager under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the International Prospectus if the Company had previously furnished copies
thereof to such Manager.
(b) Each Manager will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, either
of the Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 each case to the
extent, but 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 by such Manager
through CSFBL specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Manager consists of (i) the following information
in the International Prospectus furnished on behalf of each Manager: the last
paragraph at the bottom of the cover page concerning the terms of the offering
by the Managers, the legend concerning over-allotments and stabilizing on the
inside front cover page, the commission and reallowance figures appearing in
the fifth paragraph under the caption "Subscription and Sale," and the
information concerning discretionary sales in the sixth paragraph under the
caption "Subscription and Sale"; and (ii) the following information in the
International Prospectus furnished on behalf of BT Alex. ▇▇▇▇▇ International:
the information contained in the fifteenth paragraph under the caption
"Subscription and Sale".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified
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18
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. No indemnified party shall, without the prior written consent
of the indemnifying party, effect any settlement of any pending or threatened
action in respect of which any indemnified party seeks indemnification pursuant
to this Section; provided, however, that if the indemnifying party does so
consent in writing, the indemnifying party agrees to be liable to the
indemnified party under this Section for any such settlement; and, provided,
further, that the indemnified party may effect a settlement if the settlement
is entered into more than twenty business days after the indemnifying party
shall have received a request from the indemnified party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
the responsibility of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such
reimbursement request.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Managers on the other from the offering
of the International Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Managers on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Managers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the International Shares (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Managers. 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
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omission to state a material fact relates to information supplied by the
Company or the Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Manager shall be
required to contribute any amount in excess of the amount by which the total
price at which the International Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Manager has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Managers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Manager within the meaning of the Securities Act; and the
obligations of the Managers under this Section shall be in addition to any
liability which the respective Managers may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
8. Default of Managers. If any Manager or Managers default in
their obligations to purchase International Shares hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of
International Shares that such defaulting Manager or Managers agreed but failed
to purchase does not exceed 10% of the total number of shares of International
Shares that the Managers are obligated to purchase on such Closing Date, CSFBL
may make arrangements satisfactory to the Company for the purchase of such
International Shares by other persons, including any of the Managers, but if no
such arrangements are made by such Closing Date the non-defaulting Managers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the International Shares that such defaulting Managers
agreed but failed to purchase on such Closing Date. If any Manager or Managers
so default and the aggregate number of shares of International Shares with
respect to which such default or defaults occur exceeds 10% of the total number
of shares of International Shares that the Managers are obligated to purchase
on such Closing Date and arrangements satisfactory to CSFBL and the Company for
the purchase of such International Shares by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non- defaulting Manager or the Company, except as provided in
Section 9 (provided that if such default occurs with respect to International
Optional Shares after the First Closing Date, this
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20
Agreement will not terminate as to the International Firm Shares or any
International Optional Shares purchased prior to such termination). As used in
this Agreement, the term "Manager" includes any person substituted for a
Manager under this Section. Nothing herein will relieve a defaulting Manager
from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Managers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Manager, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the International Shares. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the International Shares by the Managers is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Managers pursuant to Section 7 shall remain in effect and if any International
Shares have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the International Shares by the Managers is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in Section
6(c)(A) or clause (iii), (iv), or (v) of Section 6(c)(B), the Company will
reimburse the Managers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the International Shares.
10. Notices. All communications hereunder will be in writing and,
if sent to the Managers, will be mailed, delivered or telexed and confirmed to
CSFBL at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England, Attention: Company
Secretary, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; provided, however, that any notice to a Manager
pursuant to Section 7 will be mailed, delivered or telexed and confirmed to
such Manager.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Managers. CSFBL will act for the several
Managers in connection with this financing, and any action under this Agreement
taken by CSFBL will be binding upon all the Managers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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If the foregoing is in accordance with the Managers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Managers in accordance with its terms.
Very truly yours,
CAPSTAR BROADCASTING CORPORATION
By
----------------------------------------
R. ▇▇▇▇▇▇ ▇▇▇▇▇
President and Chief Executive Officer
The foregoing Subscription Agreement is hereby confirmed and accepted
as of the first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:
------------------------------------
[Insert title]
BT ALEX. ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
BEAR, ▇▇▇▇▇▇▇ INTERNATIONAL LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Each by its duly authorized attorney-in-fact:
---------------------------------------
[Insert name]
22
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SCHEDULE A
MANAGER INTERNATIONAL FIRM SHARES
------- -------------------------
Credit Suisse First Boston (Europe) Limited . . . . . . . . . . . . .
BT Alex. ▇▇▇▇▇ International . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited . . . . . . . . . . . . .
Bear, ▇▇▇▇▇▇▇ International Limited . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇ ▇▇▇▇▇ International . . . . . . . . . . . . . . . . . . . .
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC . . . . . . . . . . . . . . . .
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. . . . . . . . . . . . . . . . . . . . . . . . . . .
----------
Total . . . . . . . . . . . . . . . . . . . 6,200,000
==========
23
