EXHIBIT 4.17
DEPOSIT AGREEMENT
dated as of __________, 19__
among
HEFTEL BROADCASTING CORPORATION
a Delaware corporation,
__________, a {national banking association},
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _____ Preferred Stock, Series
__, $.01 par value, of HEFTEL BROADCASTING CORPORATION with the Depositary
(as hereinafter defined) for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the company.
"Company" shall mean Heftel Broadcasting Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, a {national banking association},
and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
one-{half} interest in a share of the Stock and evidenced by a Receipt.
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"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
__________, __________, __________, at which at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall mean
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's _____ Preferred Stock, Series
__, $.01 par value.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
2.1 Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed and shall be substantially in the form
set forth in Exhibit A annexed to this Deposition Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.2, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed
or otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at an office
described in the third paragraph of Section 2.2, without charge to the
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holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by
the surrendered temporary Receipt or Receipts. Such exchange shall be made at
the Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, that such signature may
be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall
be transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any
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notice provided for in this Deposit Agreement and for all other purposes.
2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than __________ shares of Stock.
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2.3 Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption, by first class mail, postage
prepaid not less than 40 or more than 70 days prior to the date fixed for
redemption of Stock in accordance with Section {3(b)} of the Certificate. On
the date of such redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price of the Stock to be redeemed, plus
any accrued and unpaid dividends thereon, the Depositary shall redeem the
Depositary Shares relating to such Stock. The Depositary shall mail notice of
such redemption and the proposed simultaneous redemption of the number of
Depositary Shares relating to the Stock to be redeemed, by first-class mail,
postage prepaid, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date"), to the Record Holders of the Depositary Shares to be so redeemed, at
the addresses of such holders as they appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor any
defect in any notice to one or more such holders shall affect the sufficiency
of the proceedings for redemption as to other holders. Each such notice shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder
are to be redeemed, the number of such Depositary Shares held by such holder to
be so redeemed; (iii) the redemption price; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; and (v) that dividends in respect of the Stock underlying the
Depositary Shares to be redeemed will cease to accrue and accumulate at the
close of business on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed shall be selected by lot, pro rata or such other method as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the Depositary Shares
so called for redemption shall cease to accrue and accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to
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receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to the proportionate part of the redemption price per share paid in respect of
the shares of Stock plus all money and other property, if any, paid with
respect to such Depositary Shares, including all amounts paid by the Company in
respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
2.4 Registration of Transfers of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Depositary Shares upon any
surrender of the Receipt or Receipts evidencing such Depositary Shares by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
2.5 Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up of combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the denominations requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, underlying
such
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Depositary Shares by surrendering Receipts evidencing such Depositary Shares at
the Depositary's Office or at such other offices as the Depositary may
designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Stock and
all money and other property, if any, underlying the Depositary Shares so
surrendered for withdrawal, but holders of such whole shares of Stock will not
thereafter be entitled to deposit such Stock hereunder or to receive Receipts
evidencing Depositary Shares therefor. If a Receipt delivered by a holder to
the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares relating to other than a number of whole shares of Stock, the
Depositary shall at the same time, in addition to such number of whole shares
of Stock and such money and other property, if any, to be so withdrawn, deliver
to such holder, or (subject to Section 3.2) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock and
money and other property being withdrawn may be made by delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of stock,
such holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
2.6 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that
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the Depositary or the Company shall have made such payment, the reimbursement
to it) of any charges or expenses payable by the holder of a Receipt pursuant
to Section 5.7, may require the production of evidence satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary
Shares may be suspended (i) during any period when the register of stockholders
of the Company is closed or (ii) if any such action is deemed necessary or
advisable by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government or governmental body or commission or under any provision of this
Deposit Agreement.
2.7 Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, or the authenticity thereof and
of his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
2.8 Cancellation and Destruction of Surrendered Receipt. All
Receipts surrendered to the Depositary or any Depositary's agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE 3
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
3.1 Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
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certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
3.2 Payment of Taxes or Other Governmental Charges. Holders
of Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be
refused until any such payment due is made, and any dividends or other
distributions may be withheld or all or any part of the Stock or other property
relating to such Depositary Shares and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends or other distributions or
the proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Depositary Share remaining liable for any
deficiency.
3.3 Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of the Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
4.1 Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of such dividend or distributions as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on
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account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case may be, only
such amount, however, as can be distributed without attributing to any holder
of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to Record Holders or Depositary Shares then
outstanding.
4.2 Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the Record Holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if
for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes or governmental charge) the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part hereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act
of 1933 or do not need to be registered.
4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other
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nature, such rights, preferences or privileges shall in each such instance be
made available by the Depositary to the Record Holders of Depositary Shares
in such manner as the Depositary may determine, either by the issue to such
Record Holders of warrants representing such rights, preferences or
privileges or by such other method as may be approved by the Depositary in
its discretion with the approval of the Company; provided, however, that (i)
if at the time of issue or offer of any such rights, preferences or
privileges the Depositary determines that it is not lawful or (after
consultation with the Company) not feasible to make such rights, preferences
or privileges available to holders of Depositary Shares by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences
or privileges, then the Depositary, in its discretion (with the approval of
the Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or
private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed by the Depositary to the Record Holders of Depositary
Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution
of such rights, preferences or privileges unless the Company shall have
provided an opinion of counsel to the effect that such rights, preferences or
privileges have been registered under the Securities Act of 1933 or do not
need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and securities to
use its best efforts to take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holder of Depositary Shares any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such a registration statement shall have become effective, or unless
the offering and sale
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of such securities to such holders are exempt from registration under the
provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
4.4 Notice of Dividends, etc.; Fixing of Record Date for
Holders of Depositary Shares. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered,
with respect to the Stock, or whenever the Depositary shall receive notice of
any meeting at which holders of Stock are entitled to vote, or of which holders
of Stock are entitled to notice, the Depositary shall in each such instance fix
a record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to receive notice
of such meeting.
4.5 Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the Record Holders of Depositary Shares a
notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement informing holders of Depositary Shares that
they may instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock underlying their respective Depositary Shares
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.4, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The
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(i) all outstanding Depositary Shares shall have been redeemed and any
accumulated and unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to which holders
of the related Receipts are entitled under the terms of such Receipts or this
Deposit Agreement, have been paid or distributed as provided in this Deposit
Agreement or provision therefor has been duly made pursuant to Section 2.3 or
(ii) there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
ARTICLE 7
MISCELLANEOUS
7.1 Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
7.2 Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.
7.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at
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000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx to the attention of the Chief
Financial Officer, or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Depositary at the Depositary's office at ,
, , or at any other address of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram or
telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Depositary Share, notwithstanding that
such telegram or telex message shall not subsequently be confirmed by letter or
as aforesaid.
7.5 Depositary's Agents. The Depositary may from time to
time, with the prior written approval of the Company, appoint Depositary's
Agents to act in any respect for the Depositary for the purposes of this
Deposit Agreement and may at any time appoint additional Depositary's Agents
and vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
7.6 Holders of Receipts Are Parties. The holders of
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts evidencing such Depositary Shares by acceptance of delivery thereof.
21
7.7 Governing Law. THIS DEPOSIT AGREEMENT AND RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF {NEW
YORK}.
7.8 Inspection of Deposit Agrement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depositary Share.
7.9 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as part of this
Deposit Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon an
acceptance by them of delivery of Receipts evidencing such Depositary Shares
and issued in accordance with the terms hereof.
HEFTEL BROADCASTING CORPORATION
By
---------------------------------------
{Name and Title}
{Name of Depositary}
By
---------------------------------------
Authorized Officer
22
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
{GENERAL FORM OF FACE OF RECEIPT}
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __________ PREFERRED STOCK
HEFTEL BROADCASTING CORPORATION
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of __________
__________, as Depositary (the "Depositary"), hereby certifies that
__________ is the registered owner of __________ Depositary Shares ("Depositary
Shares"), each Depositary Share representing __________ of one share of
__________ Preferred Stock, Series __, par value $.01 per share (the "Stock"),
of Heftel Broadcasting Corporation, a Delaware corporation (the "Company"),
on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of __________, 199_ (the "Deposit
Agreement"), between the Company, the Depositary and all holders from time to
time of Depositary Receipts. By accepting this Depositary Receipt the holder
hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agrement. This Depositary Receipt shall not be valid
or obligatory for any purpose or entitled to any benefits under the Deposit
Agrement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary
23
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Depositary
By:
---------------------------------
Authorized Officer
Registrar
By:
---------------------------------
24
{GENERAL FORM OF REVERSE OF RECEIPT}
Heftel Broadcasting Corporation will furnish without charge to each
receiptholder who so requests a copy of the Deposit Agreement and a statement
or summary of the powers, designations, preferences and relative,
participating, option or other special rights of each class of stock or
series thereof which Heftel Broadcasting Corporation is authorized to issue
and the qualifications, limitations or restrictions of such preferences
and/or rights. Any such request is to be addressed to the Secretary of Heftel
Broadcasting Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right survivorship and not as
tenants in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (State)
Additional abbreviations may also be used though not in the above list.
For value received, __________ hereby sell(s), assign(s) and transfer(s)
onto _________
(Please insert social security
or other identifying number of
Assignee)
Please print or type Name and address including postal Zip Code of Assignee
__________ Depositary Shares represented by the within receipt and all rights
thereunder, and do hereby irrevocably constitute and appoint __________
Attorney to transfer said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: __________
NOTICE: The signature to this assignment must correspond with the name as
written on the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
