Exhibit 1.3
5,000,000 Shares
Xxxxx Advertising Company
Class A Common Stock
(Par Value $.00l per share)
UNDERWRITING AGREEMENT
October 17, 2001
XXXXXXX, SACHS & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AMFM Operating, Inc., a wholly-owned subsidiary of Clear Channel
Communications, Inc. (the "Selling Shareholder"), proposes to sell to Xxxxxxx,
Xxxxx & Co. (the "Underwriter") an aggregate of 5,000,000 shares of the Class A
Common Stock, par value $.00l per share (the "Shares") of Xxxxx Advertising
Company, a Delaware corporation (the "Company") .
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.
(a) The Company represents and warrants as follows:
(i) A registration statement on Form S-3 (File
No. 333-45490) with respect to the Shares has been filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") and has become
effective. Such registration statement, including any documents
incorporated therein by reference and any exhibits, financial
statements and schedules thereto, together with any registration
statement filed pursuant to Rule 424(b), is hereinafter referred to as
the "Registration Statement". On the effective date of the Registration
Statement, such Registration Statement conformed in all material
respects with the requirements of the Act, and the Rules and
Regulations of the Commission (the "Rules and Regulations") thereunder.
A copy of the Registration Statement, including any amendments thereto,
the preliminary prospectuses contained therein and the exhibits,
financial statements and schedules, as finally amended and revised,
have heretofore been delivered by the Company to you. The Registration
Statement has been declared effective by the Commission under the Act
and no post-effective amendment thereto has been filed as of the date
of this Agreement. As used herein, Prospectus means the base prospectus
included in the Registration Statement as supplemented by a prospectus
supplement dated the date of this Agreement filed by the Company with
the Commission pursuant to Rule 424(b). Each preliminary supplement or
amendment thereto relating to the Shares being issued and sold pursuant
hereto is
herein referred to as a "Preliminary Prospectus." Any reference herein
to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein, as of the date of such Registration
Statement, as the case may be, and, in the case of any reference herein
to any Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments
relating to the Shares being issued and sold pursuant hereto, filed
with the Commission under Rule 424(b), and prior to the termination of
the offering of the Shares by the Underwriter. Any reference to the
Registration Statement shall include any post-effective amendment filed
pursuant to Rule 462(d).
(ii) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Registration Statement; the subsidiaries listed on Schedule I hereto
(the "Subsidiaries") are the only subsidiaries of the Company; the
Subsidiaries have been duly organized and are validly existing as
corporations in good standing under the laws of their jurisdiction of
organization, with corporate power and authority to own or lease their
properties and conduct their business as described in the Registration
Statement, except where the failure so to be in good standing does not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries taken as a
whole (a "Material Adverse Effect"). The Company and the Subsidiaries
are duly qualified to transact business in all jurisdictions in which
the conduct of their business requires such qualification, except where
the failure so to qualify would not have a Material Adverse Effect; the
outstanding shares of capital stock of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable; and,
except as indicated on Schedule I hereto, all of the shares of capital
stock of the Subsidiaries are owned by the Company free and clear of
all liens, encumbrances and security interests (other than as described
in the Registration Statement) which would not reasonably be expected
individually or in the aggregate to materially impair the value of such
shares, 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 of the
Subsidiaries are outstanding. Except for the Subsidiaries and
investments in securities as described in the Registration Statement,
the Company has no equity or other interest in, or right to acquire an
equity or other interest in, any corporation, partnership, trust or
other entity.
(iii) The outstanding shares of Class A Common
Stock of the Company, including the Shares to be sold by the Selling
Shareholder, have been duly authorized and validly issued and are fully
paid and non-assessable; and no preemptive rights of stockholders exist
with respect to any of the Shares or the issue and sale thereof.
(iv) The Shares conform with the statements
concerning them in the Registration Statement.
(v) The Commission has not issued an order
preventing or suspending the use of any Prospectus or Preliminary
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 or will be filed with the Commission, conformed or will
conform at the time of filing, in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") 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
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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 incorporated by reference 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 the Selling Shareholder or the
Underwriter, specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the
Company and its subsidiaries, together with related notes and
schedules, as set forth or incorporated by reference in the
Registration Statement, present fairly the consolidated financial
position and the consolidated results of operations of the Company and
its subsidiaries at the indicated dates and for the indicated periods.
All such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein. The
summary and selected financial and statistical data included or
incorporated by reference in the Registration Statement present fairly
in all material respects the information shown therein and have been
compiled on a basis consistent with the financial statements presented
therein.
(vii) Since January 1, 1999, the documents filed
by the Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), at the time filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act, and such documents at the time of such filing did
not, and as of the date hereof do not, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary or make the statements therein not
misleading.
(viii) There is no action or proceeding pending or,
to the knowledge of the Company, threatened against the Company or the
Subsidiaries before any court or administrative agency or by any
regulatory authority which may reasonably be expected to have a
Material Adverse Effect.
(ix) The Company and the Subsidiaries have good
and marketable title to all of the properties and assets reflected in
the financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such
financial statements (or as described in the Registration Statement) or
which are not material in amount. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases
conforming to the description thereof set forth in the Registration
Statement, with such exceptions as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or
materially impair the value of such leasehold estate to the Company or
such Subsidiary.
(x) 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,
except for such failure to file or defaults in payment of a character
not required to be disclosed in the Prospectus and which would not
reasonably be expected to have a Material Adverse Effect.
(xi) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
as the same 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 condition, financial or
otherwise, of the Company and the
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Subsidiaries taken as a whole or the earnings, business affairs,
management, or business prospects of the Company and the Subsidiaries
taken as a whole, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into
by the Company or any of the Subsidiaries other than transactions in
the ordinary course of business and changes and transactions
contemplated by the Registration Statement and the Prospectus, as the
same may be amended or supplemented. The Company and the Subsidiaries
have no contingent obligations which are material to the Company and
the Subsidiaries taken as a whole and which are not disclosed in the
Registration Statement or the Prospectus, as it may be amended or
supplemented.
(xii) Neither the Company nor any of the
Subsidiaries is, nor with the giving of notice, lapse of time or both,
will be, in default under its Certificate of Incorporation or By-Laws
or any agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it or any of its
properties is bound and which default is of material significance in
respect of the business or financial condition of the Company and the
Subsidiaries taken as a whole. The consummation of the transactions
contemplated by this Agreement 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 agreement or instrument to which the Company or
any of the Subsidiaries is a party, or of the Charter or By-Laws of the
Company or the Subsidiaries or any order, rule or regulation applicable
to the Company or any of the Subsidiaries of any court or of any
regulatory body or administrative agency or other governmental body
having jurisdiction which conflict, breach or default would have a
Material Adverse Effect.
(xiii) Each approval, consent, order,
authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body necessary in
connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated
(except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriter
under State securities or Blue Sky laws) has been obtained or made and
is in full force and effect.
(xiv) The Company and each of the Subsidiaries
hold all material licenses, consents, authorizations, approvals,
orders, certificates and permits (collectively, "Licenses") of and
from, all federal, state, local, foreign and other governmental
authorities, all self-regulatory organizations in each case as required
for the conduct of the business in which it is engaged, and each such
License is in full force and effect, except to the extent that the
failure to obtain or maintain any such License would not have a
Material Adverse Effect.
(xv) The Company and the Subsidiaries are in
compliance with all applicable federal, state, foreign and local laws
and regulations relating to (i) zoning, land use, protection of the
environment, human health and safety or hazardous or toxic substances,
wastes, pollutants or contaminants and (ii) employee or occupational
safety, discrimination in hiring, promotion or pay of employees,
employee hours and wages or employee benefits, except where such
noncompliance would not, singly or in the aggregate, have a Material
Adverse Effect.
(xvi) Each of KPMG LLP, PricewaterhouseCoopers
LLP, BDO Xxxxxxx, LLP, Xxxxxx Xxxxxxxx LLP and Barbich Xxxxxxxxx Xxxxxx
& King, Accounting Corporation (each an "Accountant"), who have
certified certain of the financial statements of the Company filed with
the Commission as part of, or incorporated by reference in, the
Registration Statement, are independent public accountants as required
by the Act and the Rules and Regulations.
(xvii) The Company has never been, is not now, and
immediately after the sale of the Shares under this Agreement will not
be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
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(xviii) Any Shares of the Company to be sold under
this Agreement have been approved for listing on the Nasdaq Stock
Market subject to official notice of issuance.
(b) The Selling Shareholder represents and warrants as follows:
(i) The Selling Shareholder now has and, at the
Closing Date (as such date is hereinafter defined) will have, good and
valid title to the Shares to be sold by the Selling Shareholder, free
of any liens, encumbrances, equities and claims, and full right, power
and authority to effect the sale and delivery of the Shares; and upon
the delivery of and payment for the Shares pursuant to this Agreement,
the Underwriter will acquire good and valid title thereto, free of any
liens, encumbrances, equities and claims.
(ii) The Selling Shareholder has full right,
power and authority to execute and deliver this Agreement and to
perform its obligations thereunder. The execution and delivery of this
Agreement and the consummation by the Selling Shareholder of the
transactions contemplated herein will not result in a breach of any of
the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Selling Shareholder is a party, or of any order, rule or
regulation applicable to the Selling Shareholder of any court or of any
regulatory body or administrative agency or other governmental body
having jurisdiction.
(iii) The Selling Shareholder has not taken and
will not take, directly or indirectly, any action designed to result
in, or which has constituted, or which might reasonably be expected to
cause or result in, stabilization or manipulation of the price of the
Class A Common Stock of the Company and, other than as permitted by the
Act, the Selling Shareholder will not distribute any prospectus or
other offering material in connection with the offering of the Shares.
(iv) As of the date hereof, the information
pertaining to such Selling Shareholder under the caption "Selling
Stockholder" in the Prospectus relating to the Shares Registration
Statement, as amended by the information under the caption "Selling
Stockholder" in the Prospectus Supplement relating to the Registration
Statement, other than any numbers expressed as percentages (the
"Selling Shareholder Information"), did not contain any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading.
In order to document the Underwriter's compliance with the reporting
and withholding provisions of the Tax Equity and Fiscal Responsibility Act of
1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to
the transactions herein contemplated, the Selling Shareholder agrees, if
required, to deliver to you prior to or at the Closing Date a properly completed
and executed United States Treasury Department Form W-9 or Form 8709 (or other
applicable from or statement specified by Treasury Department regulations in
lieu thereof).
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 Selling
Shareholder agrees to sell to the Underwriter the Shares and the Underwriter
agrees to purchase from the Selling Shareholder, at a price of $30.00 per share,
the Shares.
(b) Payment for the Shares to be sold hereunder is to be made in
immediately available funds by wire transfer to the order of the Selling
Shareholder for the Shares, against delivery of certificates therefor to the
Underwriters. Such payment and delivery are to be made through the facilities of
The Depository Trust Company, New York, New York, at 10:00 A.M., New York time,
on the third business
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day after the date of this Agreement or at such other time and date not later
than three 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 are not
permitted by law or executive order to be closed.)
3. OFFERING BY THE UNDERWRITER.
It is understood that the Underwriter is to make a public offering of
the Shares as soon as it deems it advisable to do so. The Shares are to be
offered to the public from time to time for sale in one or more negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, subject to receipt and acceptance by the Underwriter, and
subject to its right to reject any order in whole or in part.
4. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with the Underwriter and the
Selling Shareholder that:
(i) The Company will (A) prepare and timely file
with the Commission under Rule 424(b) of the Rules and Regulations a
supplementary prospectus setting forth such other information and the
terms of the offering contemplated by Section 2 hereof, (B) not file
any amendment to the Registration Statement or supplement to the
Prospectus or document incorporated by reference therein of which the
Underwriter shall not previously have been advised and furnished with a
copy or to which the Underwriter shall have reasonably objected in
writing or which is not in compliance with the Rules and Regulations
and (C) 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.
(ii) The Company will advise the Underwriter and
the Selling Shareholder promptly of any request of the Commission for
amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose, and the Company will
use all 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.
(iii) The Company will deliver to, or upon the
order of, the Underwriter, from time to time, as many copies of any
Preliminary Prospectus as the Underwriter may reasonably request. The
Company will deliver to, or upon the order of, the Underwriter 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 Underwriter may reasonably request; provided,
however, that if the Underwriter is required to deliver a prospectus in
connection with sales of any shares at any time nine months or more
after the date of this Agreement, upon your request, but at the expense
of such Underwriter, the Company will prepare and deliver to such
Underwriter such copies of an amended and supplemented Prospectus as
you may reasonably request. The Company will deliver to the Underwriter
at or before the Closing Date, four complete conformed copies of the
Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the Underwriter such
number of copies of the Registration Statement, including documents
incorporated by reference therein, and of all amendments thereto, as
the Underwriter may reasonably request.
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(iv) 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 opinion of counsel for the Underwriter, 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 the Act, the Company promptly will, at its election, either (A)
prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (B) 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 law.
(v) 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 earning 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.
(vi) The Company will, for a period of five years
from the Closing Date, deliver to the Underwriter 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 Exchange Act.
(b) The Selling Shareholder covenants and agrees with the
Underwriter that:
(i) In order to document the Underwriter's
compliance with the reporting and withholding provisions of the Tax
Equity and Fiscal Responsibility Act of 1982 and the Interest and
Dividend Tax Compliance Act of 1983 with respect to the transactions
herein contemplated, the Selling Shareholder agrees, if required, to
deliver to you prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(ii) The Selling Shareholder 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.
(iii) No offering, sale or other disposition of
any Class A Common Stock of the Company or any other securities
convertible or exchangeable or exercisable for Class A Common Stock or
derivatives of Class A Common Stock, will be made for a period of 45
days after the date of this Agreement, directly or indirectly, by the
Selling Shareholder, otherwise than hereunder, or with the prior
written consent of Xxxxxxx, Xxxxx & Co.
5. COSTS AND EXPENSES. The Selling Shareholder will pay all
costs, expenses and fees incident to the performance of the obligations of the
Company and the Selling Shareholder under this Agreement with respect to the
sale of the Shares, 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 Underwriter's copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Underwriter's
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Selling Memorandum, the Underwriter's Questionnaire, the Invitation Letter; the
filing fees of the Commission; the filing fees and expenses incident to securing
any required review by the NASD of the terms of the sale of the Shares; and the
fees and expenses incurred with respect to the listing of the Shares on the
Nasdaq Stock Market. Neither the Selling Shareholder nor the Company shall,
however, be required to pay for any of the Underwriter's expenses except that,
if this Agreement shall not be consummated because the conditions in Section 7
hereof are not satisfied, or because this Agreement is terminated by the
Underwriter pursuant to Section 6 hereof, or by reason of any failure, refusal
or inability on the part of the Selling Shareholder or the Company, as the case
may be, to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms be due to the
default or omission of the Underwriter, then the Selling Shareholder or the
Company, as the case may be, shall reimburse the Underwriter 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
neither the Company nor the Selling Shareholder shall in any event be liable to
the Underwriter for damages on account of loss of anticipated profits from the
sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITER. The obligation
of the Underwriter to purchase the Shares on the Closing Date are subject to the
accuracy in all material respects, as of the Closing Date of the representations
and warranties of the Company and the Selling Shareholder contained herein, and
to the performance by the Company and the Selling Shareholder in all material
respects, of their respective 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 any request of the Commission for additional information (to be
included in the Registration Statement or otherwise) shall have been disclosed
to the Underwriter and complied with to its 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.
(b) (1) The Underwriter shall have received on the Closing Date
the opinion of Xxxxxx & Dodge LLP, counsel for the Company, dated the Closing
Date, addressed to the Underwriter to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own, and
hold under lease, its properties and conduct its business as described
in the Prospectus.
(ii) The Shares conform in all material respects
to the description thereof contained in the Prospectus; and the
certificates for the Shares are in due and proper form.
(iii) The Shares to be sold by the Selling
Shareholder 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 no statutory preemptive
rights of stockholders or, to the best of such counsel's knowledge, any
other preemptive rights exist with respect to any of the Shares or the
issue and sale thereof.
(iv) The Registration Statement has become
effective under the Act and, to the knowledge of such counsel, no stop
order proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
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(v) The Registration Statement, all Preliminary
Prospectuses, the Prospectus and each amendment or supplement thereto
filed with the Commission on or prior to the date of such opinion
comply as to form in all material respects with the requirements of the
Act and the applicable rules and regulations thereunder in effect as of
the time of such filing (except that such counsel need express no
opinion as to the financial statements, schedules and other financial
information included therein).
(vi) Each document incorporated by reference in
the Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto filed with the
Commission on or prior to the date of such opinion complied as to form
at the time of such filing in all material respects with the applicable
requirements (if any) of the Exchange Act and the applicable rules and
regulations thereunder in effect as of the date of such filing (except
that such counsel need express no opinion as to the financial
statements, schedules and other financial information included
therein).
(vii) The conditions for the use of Form S-3 as
the proper form for the Registration Statement have been satisfied.
(viii) The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated, do not
and will not violate the Certificate of Incorporation or By-Laws of the
Company, or result in a breach of any of the terms or provisions of, or
constitute a default under, any material agreement or instrument of
which such counsel has knowledge 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 (each a "Contractual Obligation"), and which
conflict, breach or default could reasonably be expected to have a
Material Adverse Effect.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(x) Except for approvals, consents, orders,
authorizations, designations, declarations or filings which have been
waived, or which have been obtained or made, no approval, consent,
order, authorization, designation, declaration or filing by or with any
regulatory, administrative or other governmental body is necessary in
connection with the execution and delivery by the Company of this
Agreement and the consummation by the Company of the transactions
herein contemplated (other than as may be required by the NASD or as
required by State securities and Blue Sky laws as to which such counsel
need express no opinion).
(xi) The Company is not, and will not become as a
result of the consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and has not been an "investment
company" at any time since 1988.
In rendering such opinion, Xxxxxx & Dodge LLP may rely as to matters
governed by the laws of states other than the Delaware General Corporate Law or
Federal laws on local counsel in such jurisdictions provided that in each case
Xxxxxx & Dodge LLP shall state that they believe that they and the Underwriter
are justified in relying on such other counsel and such other counsel's opinion
is also delivered to the Underwriter. 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 causes them to believe that (A)
the Registration Statement, as of the time it became effective under the Act and
as of the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) the Prospectus or any
supplement thereto, on the date it was filed pursuant to Rules and Regulations
and as of the Closing Date,
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contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
in light of the circumstances under which they were made not misleading (except
that such counsel need express no view as to financial statements and the notes
thereto, schedules and other financial and statistical information included or
incorporated by reference therein). With respect to such statement, Xxxxxx &
Dodge LLP may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(2) The Underwriter shall have received on the Closing Date the
opinion of Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx & Xxxxxx, L.L.P., counsel
for the Company, dated the Closing Date, addressed to the Underwriter to the
effect that:
(i) Based upon appropriate certificates of
public officials (which shall be furnished to the Underwriter with the
opinion), each of the Subsidiaries incorporated or organized as a
corporation or partnership has been duly incorporated or organized and
is validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with corporate or
other organizational power and authority to own, and hold under lease,
its properties and conduct its business as described in the Prospectus.
(ii) Based upon appropriate certificates of
public officials (which shall be furnished to the Underwriter with the
opinion), the Company is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of each of
the jurisdictions in which the conduct of its business requires such
qualification, except to the extent that the failure to qualify would
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(iii) The outstanding shares of capital stock of
the Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable. To the best knowledge of such counsel,
the shares of capital stock of the Subsidiaries are owned by the
Company or one of the other Subsidiaries free and clear of all liens,
encumbrances and security interests, and except as disclosed in the
Registration Statement, 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 of the Subsidiaries are outstanding.
(iv) The Company's Class A and Class B Common
Stock have been duly authorized; the outstanding shares of its Class A
Common Stock, including the Shares to be sold by the Company and the
Selling Shareholder, have been duly authorized and validly issued and
are fully paid and non-assessable.
(v) Such counsel does not know of any contracts
or documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference or described as required.
(vi) Such counsel knows of no material legal
proceedings or regulatory or other claims pending or threatened against
the Company or the Subsidiaries of a character required to be reflected
in the Prospectus that are not set forth in the Prospectus.
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 causes them to believe that (A) the Registration Statement, as of
the time it became effective under the Act and as of the Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (B) the Prospectus or any supplement thereto, on the date it was
filed pursuant to Rules and Regulations and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated
10
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading (except that such
counsel need express no view as to financial statements and the notes thereto,
schedules and other financial and statistical information included or
incorporated by reference therein).
(3) The Representative shall have received on the Closing Date the
opinion of Xxxxx X. XxXxxxxx, Esquire, general counsel of the Company, dated the
Closing Date, addressed to the Underwriter to the effect that:
(i) The statements in the Prospectus under the
captions "Risk Factors -- Our Operations are Impacted by the Regulation
of Outdoor Advertising" insofar as such statements constitute a summary
of regulatory matters relating to the outdoor advertising industry,
fairly describe the regulatory matters relating to such industry.
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 causes them to believe that (A) the Registration Statement, as of
the time it became effective under the Act and as of the Closing Date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (B) the Prospectus or any supplement thereto, on the date it was
filed pursuant to Rules and Regulations and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made not misleading (except
that such counsel need express no view as to financial statements, and the notes
thereto, schedules and other financial and statistical information included or
incorporated by reference therein).
(4) The Underwriter shall have received on the Closing Date, the
opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Selling
Shareholder, dated the Closing Date, addressed to the Underwriter to the effect
that:
(i) The execution and delivery of this Agreement
and the consummation of the sale of the Shares by the Selling
Shareholder as herein contemplated do not violate or result in a breach
of any terms or provisions of, or constitute a default under any
material agreement or instrument of which such counsel has knowledge,
to which the Selling Shareholder is a party or by which the Selling
Shareholder may be bound, which breach could reasonably be expected to
have a materially adverse effect on the ability of the Selling
Shareholder to perform its obligations under this Agreement.
(ii) The Selling Shareholder has full legal
right, power and authority, and any approval required by law (other
than as may be required by State securities and Blue Sky laws or for
clearance of the offering with the NASD, as to which counsel need
express no opinion) to sell, assign, transfer and deliver the Shares
pursuant to this Agreement.
(iii) This Agreement has been executed and
delivered by the Selling Shareholder.
(iv) Upon payment for the Shares to be sold by
the Selling Shareholder, and delivery of the stock certificates
evidencing the Shares in accordance with the Underwriting Agreement,
the Underwriter (assuming that they are purchasing the Shares being
sold by the Selling Shareholder in good faith and without actual notice
of any adverse claim) will have acquired valid title to the Shares
being sold by the Selling Shareholder on the Closing Date, free and
clear of any adverse claims, any lien in favor of the Company, and any
restrictions on transfer imposed under the Stockholder Agreement, dated
as of September 15, 1999, by and among the
11
Company, the Selling Shareholder, AMFM Holdings, Inc. and the Xxxxxx
Family Limited Partnership, as amended.
(c) The Underwriter shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriter, an opinion dated the Closing Date, substantially to
the effect specified in subparagraphs (iii), (iv) and (ix) of Paragraph (b) (1)
of this Section 6, and that the Company is a validly organized and existing
corporation under the laws of the State of Delaware. In rendering such opinion
Xxxxxxxx & Xxxxxxxx may rely as to all matters governed other than by the laws
of the State of New York, the Delaware General Corporation Law or Federal laws
on the opinion of counsel referred to in paragraph (b) of this Section 6. 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 (A) the Registration Statement, as of the time
it became effective under the Act and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (B) the Prospectus or any supplement thereto, on the date it was filed
pursuant to Rules and Regulations and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading (except that such
counsel need express no view as to financial statements, schedules and other
financial information included or incorporated by reference therein). With
respect to such statement, Xxxxxxxx & Xxxxxxxx may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification.
(d) The Underwriter shall have received, on the Closing Date, from
KPMG LLP a signed letter, dated the Closing Date, which shall (i) confirm that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating that in their
opinion the financial statements and schedules examined by them and included in
the Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations and (ii) contain such other statements and information as is
ordinarily included in accountants' "comfort letters" to the Underwriter with
respect to financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus. All such
letters shall be in form and substance satisfactory to the Underwriter. The
letter from KPMG LLP shall confirm that they have performed the procedures
specified by the American Institute of Certified Public Accountants for a review
of interim financial information as described in SAS No. 71, Interim Financial
Information, on the unaudited balance sheet data of the Company as of June 30,
2001 and the unaudited income and cash flow information of the Company for the
six-month period ended June 30, 2001, included in the Company's quarterly report
on Form 10-Q.
(e) The Underwriter shall have received on the Closing Date, a
certificate or certificates of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that, as of the Closing Date,
each of them severally represents in such capacity 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 or any of the Subsidiaries
a character required to be disclosed in the Registration Statement
which is not so disclosed; he does not know of any material contract
required to be filed as an exhibit to the Registration Statement which
is not so filed; and the representations and warranties of the Company
contained in Section 1 hereof are true and correct in all material
respects as of the Closing Date.
12
(iii) He has carefully examined the Registration
Statement and the Prospectus related thereto and, in his opinion, as of
the effective date of the Registration Statement, the statements
contained in the Registration Statement, including any documents
incorporated by reference therein, were true and correct in all
material respects, and such Registration Statement and Prospectus or
any document incorporated by reference therein did not omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein in light of the circumstances in which they
were made, 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.
(f) The Company and the Selling Shareholder shall have furnished
to the Underwriter such further certificates and documents confirming the
representations and warranties of such person contained herein and related
matters as the Underwriter may reasonably have requested.
(g) The Shares, have been approved for listing upon official
notice of issuance on the Nasdaq Stock Market.
(h) The Underwriter shall have received from each stockholder of
the Company listed on Schedule II a letter or letters, in form and substance
satisfactory to the Underwriter, pursuant to which such person shall agree not
to 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 as to which such person has the right to
direct the disposition of) for a period of 45 days after the date of this
Agreement, except with the prior written consent of Xxxxxxx, Sachs & Co. or
except as may be expressly permitted by the terms of such letter or letters.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Underwriter and to Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriter.
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 Underwriter hereunder may be terminated by the
Underwriter by notifying the Company of such termination in writing or by
telegram at or prior to the Closing Date.
In such event, the Company, the Selling Shareholder and the Underwriter
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 AND THE SELLING
SHAREHOLDER. The obligations of the Company and the Selling Shareholder to sell
and deliver the portion of the Shares required to be delivered as and when
specified in this Agreement are subject to the conditions that at the Closing
Date, 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 and the Selling Shareholder agree to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
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 or incorporated by reference in the Registration Statement, any
13
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 or incorporated therein or necessary to make the
statements therein not misleading, and will reimburse the 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 and the Selling Shareholder will not be
liable in any such case to the extent that (i) 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 or incorporated by reference 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 or on behalf of the
Underwriter specifically for use in the preparation thereof; or (ii) such
statement or omission was contained or made in any Preliminary Prospectus and
corrected in the Prospectus and (A) any such loss, claim, damage or liability
suffered or incurred by the Underwriter (or any person who controls the
Underwriter) resulted from an action, claim or suit by any person who purchased
Shares which are the subject thereof from such Underwriter in the offering and
(B) such Underwriter failed to deliver or provide a copy of the Prospectus to
such person at or prior to the confirmation of the sale of such Shares in any
case where such delivery is required by the Act. Notwithstanding the foregoing,
the Selling Shareholder's obligations to indemnify and hold harmless under this
Section 8 shall be limited to any loss, claim, liability, action or proceeding
arising out of the Selling Shareholder Information. The Company and the
Underwriter acknowledges that the Selling Shareholder Information constitutes
the only information furnished in writing by or on behalf of the Selling
Shareholder for inclusion in the documents referred to in the foregoing
indemnity. In no event, however, shall the aggregate liability of the Selling
Shareholder for indemnification under this Section 8(a) exceed the net proceeds
after underwriters discounts and commissions received by the Selling Shareholder
from the Underwriter in the offering. In addition, the Selling Shareholder will
not be obligated to make a payment under this subparagraph (a) for any
indemnification claims if and to the extent that payment of such claim is made
by the Company within ninety (90) days after written demand by the Underwriter.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statement, the Selling Shareholder, 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 Selling Shareholder, the Company or any such 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 or
incorporated by reference 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 or any such director, officer, Selling Shareholder, partner 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 or through or
on behalf of the Underwriter or the Selling Shareholder 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 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
14
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 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, (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, or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel reasonably acceptable to the indemnified party within a reasonable
period of time after notice of commencement of the action. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company and the Selling Shareholder in the
case 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.
(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, the
Selling Shareholder and the Underwriter 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, the Selling Shareholder and the Underwriter 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, the Selling Shareholder and the Underwriter shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Shareholder bear to
the total underwriting discounts and commissions received by the Underwriter, 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, the Selling Shareholder or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Shareholder and the Underwriter agree that it
would not be just and equitable if contributions pursuant to this Section 8(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations 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
15
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) the Underwriter shall
not be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by such Underwriter, (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 and (iii) the Selling Shareholder
shall not be required to contribute any amount in excess of (a) the proceeds
received by the Selling Shareholder from the Underwriter in the offering after
deducting underwriting discounts and commissions plus (b) any damages previously
paid by the Selling Shareholder. Notwithstanding the foregoing, the Selling
Shareholder shall not be required to contribute in respect of any losses,
claims, liabilities or judgments (or expenses incurred in connection therewith)
unless the same arise with respect to the Selling Shareholder Information. The
Underwriter's 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.
9. 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 Underwriter, to Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if
to the Company, to Xxxxx Advertising Company, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxxx, 00000; Attention: Xxxxx X. Xxxxxx, Xx., President; with a copy
to Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Xxxxxxx
Xxxxxx; if to the Selling Shareholder, c/o Clear Channel Communications, Inc.,
000 Xxxx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxx, with a
copy to Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Mount.
10. TERMINATION. This Agreement may be terminated by you by notice
to the Company and the Selling Shareholder as follows:
(a) at any time after the date hereof and prior to the Closing if
any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, 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 the Subsidiaries taken as a whole or the earnings, business affairs,
management or business prospects of the Company and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities involving the United States or declaration
of war or national emergency after the date hereof or other national or
international calamity or crisis or any change in financial, political or
economic conditions if the effect of such outbreak, escalation, declaration,
emergency, 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 on the terms and in the manner contemplated in the Prospectus
impracticable or inadvisable, (iii) trading in securities on the Nasdaq, the New
York Stock Exchange or the American Stock Exchange shall have been suspended or
materially limited (other than limitations on hours or numbers of days of
trading) or minimum prices shall have been established for securities on either
such Exchange, (iv) trading in the Company's securities on the Nasdaq shall have
been suspended or materially limited (other than limitations on hours or numbers
of days of trading) or minimum prices shall have been established for such
securities such that the offering or delivery of the Shares on the terms and in
the manner contemplated in the Prospectus is impracticable or unadvisable, (v)
declaration of a banking moratorium by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States that makes the offering or
delivery of the Shares on the terms and in
16
the manner contemplated in the Prospectus impracticable or unadvisable, (vi) any
downgrading in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Exchange Act of 1934, as amended); or (vii) the
taking of any action by any governmental body 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 elsewhere; or
(b) as provided in Section 6 of this Agreement.
11. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriter, the Company and the Selling Shareholder and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Shares merely because of such purchase.
12. 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 the Underwriter or controlling person thereof, by or on
behalf of the Company or its directors or officers or by or on behalf of the
Selling Shareholder 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.
17
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholder and the Underwriter in accordance with its terms.
Very truly yours,
Xxxxx Advertising Company
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
Selling Shareholder
AMFM Operating, Inc.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President - Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
XXXXXXX, SACHS & CO.
By /s/ Xxxxxxx, Xxxxx & Co.
------------------------------------
(Xxxxxxx, Sachs & Co.)
18
SCHEDULE I
SUBSIDIARIES OF XXXXX ADVERTISING COMPANY *
State of Other Jurisdiction of
Name Incorporation or Organization
---- -----------------------------
Xxxxx Media Corp. Delaware
American Signs, Inc. Washington
Canadian TODS Limited Nova Scotia
Colorado Logos, Inc. Colorado
Delaware Logos, LLC Delaware
Florida Logos, Inc. Florida
Xxxxxx Development Corporation Florida
Kansas Logos, Inc. Kansas
Kentucky Logos, LLC Kentucky
Xxxxx Advertising of Colorado Springs, Inc. Colorado
Xxxxx Advertising of Kentucky, Inc. Kentucky
Xxxxx Advertising of Michigan, Inc. Michigan
Xxxxx Advertising of South Dakota, Inc. South Dakota
Xxxxx Advertising of West Virginia, Inc. West Virginia
Lamar Advertising of Youngstown, Inc. Delaware
Lamar Air, L.L.C. Louisiana
Lamar Electrical, Inc. Louisiana
Lamar OCI North Corporation Delaware
Lamar OCI South Corporation Mississippi
Lamar Pensacola Transit, Inc. Florida
Lamar Tennessee, L.L.C. Tennessee
Lamar Texas General Partner, Inc. Louisiana
Lamar Texas Limited Partnership Texas
Michigan Logos, Inc. Michigan
Minnesota Logos, Inc. Minnesota
Lamar Advantage Outdoor Company, L.P. Delaware
Lamar Advantage Holding Company Delaware
Lamar Ember, Inc. Texas
Xxxxx Oklahoma Holding Company, Inc. Oklahoma
Xxxxx Advertising of Oklahoma, Inc. Oklahoma
Lamar Benches, Inc. Oklahoma
Lamar 1-40 West, Inc. Oklahoma
Georgia Logos, L.L.C. Georgia
Mississippi Logos, L.L.C. Mississippi
New Jersey Logos, L.L.C. NewJersey
Oklahoma Logos, L.L.C. Oklahoma
Interstate Logos, L.L.C. Louisiana
LC Billboard L.L.C. Delaware
Lamar KYO, Inc. Mississippi
Lamar Ohio Outdoor Holding Corp. Ohio
Xxxxx Xxxxxx Poster Corp. Pennsylvania
Missouri Logos, a Partnership Missouri
Superior Outdoor Advertising, Inc. Arkansas
Custom leasing & Realty, Inc. Arkansas
Arkansas Outdoor Advertising Co., Inc. Arkansas
Able Outdoor, Inc. North Carolina
Outdoor Marketing Systems, Inc. Pennsylvania
Outdoor Marketing Systems, LLC Pennsylvania
Xxxxx Advertising Southwest, Inc. Nevada
Lamar G & H Outdoor Advertising, L.L.C. Oklahoma
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Xxxxx Xxxxx Outdoor Advertising, Inc. Louisiana
Xxxxx Xxxxxxx Outdoor Advertising, Inc. Nebraska
XxXxxxxxx Outdoor Advertising, Inc. Oklahoma
Xxxxx DOA Tennessee Holdings, Inc. Delaware
Lamar DOA Tennessee, Inc. Delaware
* All subsidiaries are 100% owned by Xxxxx Advertising Company, except for
Missouri Logos, a Partnership, in which Xxxxx Advertising Company holds a
66 2/3% partnership interest.
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SCHEDULE II
Lock-Up Letters
Clear Channel Communications, Inc.
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