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EXHIBIT 1.1
[Revised--08/08/97]
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SHARES
CLEAR CHANNEL COMMUNICATIONS, INC.
COMMON STOCK
______________________________
UNDERWRITING AGREEMENT
______________________________
___________ _____, 1997
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SHARES
CLEAR CHANNEL COMMUNICATIONS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
________ _, 1997
[To be conformed to Shelf provisions]
[Underwriters]
c/o
Ladies and Gentlemen:
Clear Channel Communications, Inc., a Texas corporation (the
"Company"), proposes to sell to the several underwriters (the "Underwriters")
named in Schedule I hereto shares of the Company's Common Stock,
$.10 par value (the "Firm Shares"), of which shares are to be sold
by the Company (the "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 [ ] additional shares of the Company's
Common Stock (the "Option Shares") as set forth below.
As the Underwriters, you have advised the Company (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. The Firm Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein collectively called
the "Shares".
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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. )
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 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." Except as
specifically set forth herein, (i) any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference
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therein, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be, and (ii) 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 Texas, 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 on Schedule II hereto
(collectively, the "Subsidiaries") has been duly organized and, 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; except as set forth on Schedule II
hereto, the outstanding shares of capital stock of each of the
Subsidiaries owned by the Company or a Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and
are owned by the Company or another subsidiary free and clear of all
liens, encumbrances and security interests and no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.
(c) The authorized shares of Common Stock of the Company have
been duly authorized. The outstanding shares of Common Stock of the
Company have been duly authorized and are validly issued, fully-paid
and non-assessable; the 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
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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) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its
terms.
(e) 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.
(f) 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 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.
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(g) The consolidated financial statements of the Company and
the Subsidiaries, together with related notes and schedules
incorporated by reference in the Registration Statement, present
fairly the financial position and the results of operations of the
Company and its subsidiaries consolidated, at the indicated dates and
for the indicated periods. Such financial statements have been
prepared in accordance with generally accepted principles of
accounting, consistently applied throughout the periods involved, and
all adjustments necessary for a fair presentation of results for such
periods have been made. The selected and summary financial and
statistical data included in the Registration Statement present fairly
the information shown therein and have been compiled on a basis
consistent with the financial statements incorporated by reference
therein and the books and records of the Company. The pro forma
financial information included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
properly compiled on the pro forma bases described therein, and, in
the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(h) Except for those license renewal applications of the
Company or its Subsidiaries currently pending before the Federal
Communications Commission (the "FCC"), a description of which is set
forth on Schedule II hereto or as set forth in the Registration
Statement, there is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of the
Subsidiaries before any court or administrative agency which could
reasonably be likely to result in any material adverse change in the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) of the Company and of
the Subsidiaries (taken as a whole).
(i) 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 material lien, mortgage, pledge, charge or
encumbrance of any kind, except those reflected in such financial
statements or as described in the Registration Statement or set forth
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on Schedule II. 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.
(j) 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.
(k) 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.
(l) 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 Articles 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
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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 Articles 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).
(m) 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 the New York Stock Exchange
("NYSE") 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.
(n) The Company and each of the Subsidiaries hold all
material licenses, certificates and permits from governmental
authorities, including without limitation, the FCC, which are
necessary to the conduct of their businesses; and neither the Company
nor any of the Subsidiaries has received notice of any infringement of
any material patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company and the Subsidiaries (taken as a whole).
(o) Ernst & Young LLP, KPMG and KPMG Peat Marwick, each of
whom have certified certain of the financial statements 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.
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(p) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater security holders except as
otherwise disclosed in writing to .
(q) 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 acknowledges that the
Underwriters may engage in passive market making transactions in the
Shares on The NYSE in accordance (and in compliance) with Regulation M
under the Exchange Act.
(r) 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.
(s) 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.
(t) 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.
(u) 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
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interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) for which the Company would have any liability has
occurred and is continuing; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Company would have
any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(v) 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.
(w) The information set forth in the Prospectus under the
caption "Prospectus Summary-Recent Developments" is true and correct
in all material respects.
2. 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, the Company agrees to sell to the
Underwriters the 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 9 hereof.
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(b) Payment for the Firm Shares to be sold hereunder by the
Company 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 , at 10:00 a.m., 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 New York Stock
Exchange 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 Underwriters 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.
(c) 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 2. 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 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 cancelation 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
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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 .
3. Offering by the Underwriters. It is understood that the
Underwriters are to make a public offering of the Firm Shares as soon as the
Underwriters 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 2 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.
4. Covenants of the Company. The Company 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 Underwriters shall not previously have
been advised and furnished with a copy or to which the Underwriters
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
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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 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.
(d) 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.
(e) 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 requirements of such exchange or with the Commission
pursuant to the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
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(f) No offering, sale, short sale or other disposition of any
Common Stock or other securities convertible into or exchangeable or
exercisable for shares of Common Stock of the Company will be made by
the Company 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 , except that
the Company may, without such consent, grant options or issue shares
of Common Stock pursuant to the exercise of options granted under the
Company's current stock option plans and may offer or issue shares of
Common Stock in connection with the acquisition of stock or assets of
another person.
(g) 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.
(h) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on the NYSE.
(i) The Company has caused each of ▇. ▇▇▇▇▇ ▇▇▇▇ and ▇. ▇.
▇▇▇▇▇▇▇ to furnish to you, or prior to the date of this agreement, a
letter or letters, in form and substance satisfactory to the
Underwriters, pursuant to which each such person has agreed not to
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offer, sell, sell short or otherwise dispose of any shares of Common
Stock of the Company or other capital stock of the Company, or any
other securities convertible, exchangeable or exercisable for common
stock or derivative of common stock owned by such person or request
the registration for the offer or sale of any of the foregoing (or as
to which such person has the right to direct the disposition of) for a
period of 90 days after the date of this Agreement, directly or
indirectly, except with the prior written consent of
("Lockup Agreements").
(j) 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").
(k) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(l) 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.
5. Costs and Expenses. The Company will pay all costs,
expenses and fees incident to the performance of the obligations of the Company
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; the cost of printing and delivering
to, or as requested by, the Underwriters copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement; fees and expenses
related to Blue Sky matters; the filing fees of the Commission; and the filing
fees of the NASD. The Company shall not, however, be required to pay for any
of the Underwriters' expenses 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 Underwriters 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
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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 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.
6. 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 Underwriters 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, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Company, dated
the Closing Date or the Option Closing Date, as the case
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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 Texas, with
corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus; each
of the Subsidiaries 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; and the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and, to the best of
such counsel's knowledge, except (A) as reflected in the
Company's financial statements, (B) as described in the
Registration Statement, are owned by the Company or a
Subsidiary or (C) as set forth on Schedule II hereto; and, to
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 and no options,
warrants or other rights to purchase, agreements or other
obligations to issue, or other rights to convert any
obligations into any shares of capital stock or of ownership
interests in the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus; the authorized shares of its Common Stock
have been duly authorized; the outstanding shares of its
Common Stock have been duly authorized and validly issued and
are fully-paid and non-assessable; all of the 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 knowledge of such counsel, no preemptive rights of
stockholders exist with respect to any of the Shares or the
issue and sale thereof.
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(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 (each
as amended to date) comply as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to, the
statistical information contained in the Prospectus or
financial statements, schedules and other financial
information incorporated by reference therein).
(vi) The statements under the captions "Prospectus
Summary -- Recent Developments,"
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"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 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 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.
(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 Articles of Incorporation or By-laws of the Company, or to
such counsel's knowledge, any agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries may be bound (other
than licenses or permits granted by the FCC, on which such
counsel need not express any opinion), except a conflict,
breach or default which would not have a materially adverse
effect on the business or financial condition of the Company
and its subsidiaries taken as a whole.
(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
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governmental body having jurisdiction over the Company is
necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein
contemplated (other than as may be required by the NASD or
NYSE 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.
In rendering such opinion, such counsel may rely (A) as to matters
governed by the laws of states other than Texas or Federal laws on
local counsel in such jurisdictions, provided that in each case such
counsel shall state that they believe that they and the Underwriters
are justified in relying on such other counsel and (B) as to matters
of fact, on certificates of responsible officers of the Company and
certificates or other written statements of officers or departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and any
Subsidiary. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that the
Registration Statement, as of the time it became effective under the
Act, the 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
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therein, but is without independent check and verification.
(c) The Underwriters shall also have received on the Closing
Date the opinion of local counsel for the Company experienced in such
matters, in each of the major jurisdictions in which the Company
conducts business (Atlanta, Georgia; Dallas, San Antonio and Houston,
Texas; Los Angeles and San Francisco/Oakland, California; Cleveland,
Ohio; Chicago, Illinois; and Tampa, Florida), dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the
Underwriters substantially to the effect that the statements under the
caption "Risk Factors-Government Regulation" insofar as such
statements constitute a summary of regulatory matters in the
applicable jurisdiction relating to the outdoor advertising industry,
fairly describes the regulatory matters relating to the Company's
business as that business is conducted in the applicable metropolitan
area.
(d) The 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 FCC 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) No consent, approval, authorization or order of,
or filing or declaration with, the FCC is required for or in
connection with the authorization, issuance, transfer, sale or
delivery of the Shares by the Company as described in the
Prospectus assuming that (i) no individual or entity will
acquire an attributable ownership interest in the Company as
that term is defined by the FCC; and (ii) less than 25% of the
capital stock of the Company will be owned by alien
individuals or entities; provided, however, certain of the
transaction documents may be subject to a requirement that
they be filed with the FCC pursuant to Section 73.3613 of its
rules.
(ii) The authorization, issuance, transfer, sale and
delivery of the Shares by the company as described in the
Prospectus will not result in a breach or violation of any
term or provision of the Communications Act or the
Telecommunications Act of 1996, or any orders, rules or
regulations of the FCC thereunder, assuming that (i) no
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individual or entity will acquire an attributable ownership
interest in the Company as that term is defined by the FCC and
(ii) less than 25% of the capital stock of the Company will be
owned by alien individuals or entities.
(iii) Subsidiaries of the Company hold valid
authorizations from the FCC ("Licenses") for the U.S. radio
and television stations (the "Stations") identified in the
Prospectus under "Business -- Radio Broadcasting " and
"Business -- Television Broadcasting" in those instances where
a date is entered in the column "Date of Acquisition." All of
the Licenses are in full force and effect.
(iv) To counsel's knowledge, the Licenses are the
only FCC main station licenses necessary to operate the
Stations on the frequencies and in the markets listed in the
Prospectus under "Business -- Radio Broadcasting" and
"Business -- Television Broadcasting" in the columns
"Frequency" and "Market (Rank)/Station" or "Market/Network"
respectively.
(v) Those portions of the Prospectus under the
caption "Risk Factors -- Government Regulation-Broadcasting"
and "Risk Factors-- New Technologies" in the Company's Annual
Report on Form 10-K, as amended to date, incorporated therein
by reference, under the caption "Item 1. Business - Regulation
of the Company's Business" (excluding those paragraphs headed
"Antitrust Matters" and "Environmental Matters") are accurate
and fairly present the information set forth therein in all
material respects as of the date of the Prospectus.
(vi) Subsidiaries of the Company have pending before
the FCC or the FCC has granted the license assignment or
transfer of control applications for the U.S. radio and
television stations listed in the Prospectus Summary under the
caption "Recent Developments-Pending Acquisitions."
(e) The Underwriters shall have received from Cravath, Swaine
& ▇▇▇▇▇, 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
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Paragraph (b) of this Section 7, and that the Company is a validly
organized and existing corporation under the laws of the State of
Texas. In rendering such opinion Cravath, Swaine & ▇▇▇▇▇, may rely as
to all matters governed other than by the laws of the State of
Maryland 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, Cravath, Swaine & ▇▇▇▇▇ may state that
their belief is based upon the procedures set forth therein, but is
without independent check and verification.
(f) The Underwriters 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
KPMG, 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 or Chief Executive Officer and the
Senior Vice
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President and Chief Accounting 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.
(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 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 Shares and Option Shares, if any, have been approved
for listing upon official notice of issuance on the NYSE.
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 reasonably satisfactory to the Underwriters and to
Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters.
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If any of the conditions hereinabove provided for in this
Section 6 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 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 Underwriters
shall not be under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company. The
obligations of the Company 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.
8. 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 Underwriters 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
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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. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) 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, and each person, if any, who
controls the Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company 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, 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
Underwriters on behalf of such Underwriter specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought
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pursuant to this Section 8, 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
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) 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 8(a) or (b). 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 selected by
you in the case of parties indemnified pursuant to Section 8(a) and by the
Company in the event of parties indemnified pursuant to Section 8(b). 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.
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(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) 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 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 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 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 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 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 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 and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) 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
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referred to above in this Section 8(d). 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
8(d) 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 (d),
(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 8(d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) 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
8 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.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 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 8 and the
representations and warranties of the Company 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, or its directors, nominees for director or
officers or any persons controlling the Company, (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, or their respective directors
or officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity,
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contribution and reimbursement agreements contained in this Section 8.
9. 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, 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 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 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 9, 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 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
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10. 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 __________,
__________, Attention: __________, Managing Director; if to the Company, to
Clear Channel Communications, Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Vice President.
11. Termination. This Agreement may be terminated by you by
notice to the Company as follows:
(a) at any time prior to the earlier of (i) the time the
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 NYSE or limitation on
prices (other than limitations on hours or numbers of days of trading)
for securities on the NYSE, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your
reasonable opinion materially and adversely affects or will materially
or adversely affect the business or operations of the Company and the
Subsidiaries taken as a whole, (v) declaration of a banking moratorium
by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the
United States; or
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(c) as provided in Sections 6 and 9 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 6
and 9 of this Agreement.
12. Successors. This Agreement has been and is made solely
for the benefit of the Underwriters, the Company 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.
13. Information Provided by Underwriters. The Company and
the Underwriters acknowledge and agree that the only information furnished or
to be furnished by any Underwriter to the Company 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
and Regulation M under the Act and the information under the caption
"Underwriting" in the Prospectus.
14. 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 New York.
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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 and the several Underwriters in accordance with its terms.
Very truly yours,
CLEAR CHANNEL COMMUNICATIONS, INC.
By
----------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇
Chairman of the Board and Chief
Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
By
By
---------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------
---------------
Total . . . . . . . . . . . . . .
35
SCHEDULE II
DISCLOSURE ITEMS
1. Material Subsidiaries
2. Liens, capitalization except for Subsidiary Stock
3. Pending Renewal applications
4. Clear Channel Common Stock exceptions
5. [other]
