FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT UNDER SECTION 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended March 31, 1998 Commission file number 1-9645
CLEAR CHANNEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Texas 74-1787539
(State of Incorporation) (I.R.S. Employer Identification No.)
200 Concord Plaza, Suite 600
San Antonio, Texas 78216-6940
(210) 822-2828
(Address and telephone number
of principal executive offices)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes __x__ No _____
Indicate the number of shares outstanding of each class of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at May 14, 1998
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Common Stock, $.10 par value 123,954,756
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
INDEX
Page No.
- - - - - - -
Part I -- Financial Information
Item 1. Unaudited Financial Statements
Consolidated Balance Sheets at March 31, 1998
and December 31, 1997 3
Consolidated Statements of Operations for the three
months ended March 31, 1998 and 1997 5
Consolidated Statements of Cash Flows for the three
months ended March 31, 1998 and 1997 6
Notes to Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 10
Item 3. Quantitative and Qualitative Disclosures
About Market Risk 12
Part II -- Other Information
Item 6. Exhibits and reports on Form 8-K 13
(a) Exhibits
(b) Reports on Form 8-K
Signatures 13
Index to Exhibits 14
<PAGE>
PART I
Item 1. UNAUDITED FINANCIAL STATEMENTS
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
(In thousands of dollars)
March 31, December 31,
1998 1997
(Unaudited) (*)
------------ ------------
Current Assets
Cash and cash equivalents $ 25,775 $ 24,657
Income tax receivable 2,451 3,202
Accounts receivable, less allowance
of $11,844 at March 31,
1998 and $9,850 at December 31, 1997 132,277 155,962
Film rights - current 13,173 14,826
---------- ------------
Total Current Assets 173,676 198,647
Property, Plant and Equipment
Land, buildings and improvements 88,717 84,118
Structures and site leases 607,151 487,857
Transmitter and studio equipment 224,945 215,755
Furniture and other equipment 49,352 46,584
Construction in progress 34,196 39,992
---------- ------------
1,004,361 874,306
Less accumulated depreciation (145,461) (128,022)
---------- ------------
858,900 746,284
Intangible Assets
Network affiliation agreements 33,727 33,727
Licenses and goodwill 2,273,848 2,175,944
Covenants not-to-compete 24,892 24,892
Other intangible assets 27,737 19,593
---------- ------------
2,360,204 2,254,156
Less accumulated amortization (165,808) (141,066)
---------- ------------
2,194,396 2,113,090
Other Assets
Notes receivable --- 35,373
Film rights 11,765 14,171
Investments in, and advances to,
nonconsolidated affiliates 268,300 266,691
Other assets 29,363 30,122
Other investments 63,227 51,259
---------- -------------
Total Assets $3,599,627 $3,455,637
========= =========
* From audited financial statements
See Notes to Consolidated Financial Statements
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND SHAREHOLDERS' EQUITY
(In thousands of dollars)
March 31, December 31,
1998 1997
(Unaudited) (*)
----------- ------------
Current Liabilities
Accounts payable $ 12,106 $ 11,904
Accrued interest 11,361 9,950
Accrued expenses 27,979 34,489
Deferred income 1,313 1,340
Current portion of long-term debt 4,065 13,294
Current portion of film rights liability 14,019 15,875
---------- ------------
Total Current Liabilities 70,843 86,852
Long-term debt 610,289 1,540,421
Film rights liability 12,919 15,551
Deferred income taxes 11,614 10,114
Deferred income 9,425 9,750
Other long-term liabilities 25,228 25,378
Convertible debt 500,000 ----
Minority interest 20,739 20,787
Shareholders' Equity
Common stock 10,468 9,823
Additional paid-in capital 2,123,321 1,541,865
Retained earnings 175,210 169,631
Other 1,087 2,398
Unrealized gain on investments 30,347 23,754
Cost of shares held in treasury (1,863) (687)
----------- ------------
Total shareholders' equity 2,338,570 1,746,784
----------- ------------
Total Liabilities and
Shareholders' Equity $3,599,627 $3,455,637
========== ==========
* From audited financial statements
See Notes to Consolidated Financial Statements
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(In thousands of dollars, except per share data)
Three Months Ended
March 31, March 31,
1998 1997
----------- ------------
Gross revenue $ 229,849 $ 110,831
Less agency commissions 26,207 12,542
----------- ------------
Net revenue 203,642 98,289
Operating expenses 123,774 63,055
Depreciation and amortization 43,011 15,946
----------- ------------
Operating income before corporate expenses 36,857 19,288
Corporate expenses 5,909 2,854
----------- ------------
Operating income 30,948 16,434
Interest expense 25,701 11,046
Other income - net 2,795 6,259
----------- ------------
Income before income taxes 8,042 11,647
Income taxes 4,259 4,962
----------- ------------
Income before equity in earnings
of nonconsolidated affiliates 3,783 6,685
Equity in earnings of nonconsolidated
affiliates 1,796 914
----------- -----------
Net income $ 5,579 $ 7,599
=========== ===========
Basic $ .06 $ .10
=========== ===========
Diluted $ .04 $ .10
=========== ===========
See Notes to Consolidated Financial Statements
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(In thousands of dollars)
Three Months Ended
March 31, March 31,
1998 1997
-------------- ------------
Cash flows from operating activities:
Net income $ 5,579 $ 7,599
Reconciling Items:
Depreciation 18,052 6,694
Amortization of intangibles 24,970 9,252
Deferred taxes 1,500 814
Amortization of film rights 4,144 4,076
Payments on film liabilities (4,573) (4,336)
Recognition of deferred income (352) (365)
(Gain) loss on disposal of assets (398) 334
Gain on sale of other investments (2,606) ----
Equity in earnings of nonconsolidated
affiliates (200) (119)
Decrease minority interest (48) ----
Changes in operating assets and liabilities:
(Increase) decrease accounts receivable 25,354 10,634
Increase (decrease) accounts payable 201 (2,357)
Increase (decrease) accrued interest 1,411 (3,140)
Increase (decrease) accrued expenses and
other liabilities (4,111) (2,687)
Increase (decrease) accrued income and
other taxes 751 (766)
------------ ------------
Net cash provided by operating activities 69,674 25,633
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
SCHEDULE RECONCILING NET INCOME TO NET CASH
FLOWS PROVIDED BY OPERATING ACTIVITIES
(UNAUDITED)
(In thousands of dollars)
Three Months Ended
March 31, March 31,
1998 1997
------------- ------------
Cash flows from investing activities:
Increase in restricted cash ---- $(41,245)
Decrease in notes receivable - net 35,373 52,750
Increase in investments in and advances to
nonconsolidated affiliates - net (1,409) (5,497)
Purchases of investments (6,855) (10,911)
Proceeds from sale of investments 4,084 ----
Purchases of property, plant and equipment (8,038) (4,474)
Proceeds from disposal of assets 2,395 251
Acquisition of broadcasting assets (111,281) (27,920)
Acquisition of outdoor assets (106,466) ----
Increase in other intangible assets (8,144) (517)
Increase in other-net (871) (8,635)
--------------- ------------
Net cash used in investing activities (201,212) (46,198)
Cash flows from financing activities:
Proceeds of long-term debt 171,000 82,825
Payments on long-term debt (1,110,396) (55,650)
Payments of current maturities (62) (253)
Proceeds from exercise of stock options 1,795 2,082
Proceeds from issuance of common stock 577,819 ----
Proceeds from issuance of convertible debt 492,500 ---
-------------- ------------
Net cash provided by financing activities 132,656 29,004
Net increase in cash and cash equivalents 1,118 8,439
Cash and cash equivalents at beginning
of period 24,657 16,701
--------------- ------------
Cash and cash equivalents at end of period 25,775 25,140
========== ==========
See Notes to Consolidated Financial Statements
<PAGE>
CLEAR CHANNEL COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1: PREPARATION OF INTERIM FINANCIAL STATEMENTS
The consolidated financial statements have been prepared by Clear Channel
Communications, Inc. (the "Company") pursuant to the rules and regulations of
the Securities and Exchange Commission ("SEC") and, in the opinion of
management, include all adjustments (consisting only of normal recurring
accruals and adjustments necessary for adoption of new accounting standards)
necessary to present fairly the results of the interim periods shown. Certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such SEC rules and regulations. Management
believes that the disclosures made are adequate to make the information
presented not misleading. The results for the interim periods are not
necessarily indicative of results for the full year. The financial statements
contained herein should be read in conjunction with the consolidated financial
statements and notes thereto included in the Company's 1997 Annual Report.
The consolidated financial statements include the accounts of the Company and
its subsidiaries, the majority of which are wholly-owned. Investments in
companies in which the Company owns 20 percent to 50 percent of the voting
common stock or otherwise exercises significant influence over operating and
financial policies of the company are accounted for under the equity method. All
significant intercompany transactions are eliminated in the consolidation
process. Certain reclassifications have been made to the 1997 consolidated
financial statements to conform to the 1998 presentation.
Note 2: RECENT ACCOUNTING PRONOUNCEMENTS
As of January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130 Reporting Comprehensive Income. Statement 130 establishes new
rules for the reporting and display of comprehensive income and its components;
however, the adoption of this Statement had no impact on the Company's net
income or shareholders' equity. Statement 130 requires unrealized gains or
losses on the Company's available-for-sale securities and foreign currency
translation adjustments, which prior to adoption were reported separately in
shareholders' equity to be included in other comprehensive income. Prior year
financial statements have been reclassified to conform to the requirements of
Statement 130.
During the first quarter of 1998 and 1997, total comprehensive income amounted
to $12.2 million and $7.6 million respectively. The primary component of other
comprehensive income was unrealized gains on the Company's available-for-sale
securities.
Note 3: RECENT DEVELOPMENTS
On January 21, 1998 the Company's affiliate, Heftel Broadcasting Corporation
("Heftel"), of which the Company owned 32.3% of the outstanding common stock,
issued 5,075,000 additional shares of its common stock decreasing the Company's
total ownership to approximately 29.1% of Heftel's aggregate outstanding Class A
and Class B common stock.
On March 5, 1998, the Company made a cash offer to acquire all of the issued
shares of More Group Plc ("More Group"), which was subsequently recommended to
More Group's shareholders by its Board. The offer valued each More Group share
at (pound)10.30, or approximately US$17.00. On March 30, 1998, New Decaux Plc, a
wholly-owned subsidiary of a French outdoor advertising company called Decaux
S.A., announced that it was prepared to offer the shareholders of More Group
(pound)11.10 for each More Group share, or approximately US$18.32. Following
receipt of this second proposal, More Group's Board withdrew its recommendation
of the Company's offer, and is currently recommending no action to More Group's
shareholders.
On April 1, 1998, the Company closed its merger with Universal Outdoor Holdings,
Inc. ("Universal"). Pursuant to the terms of the agreement, each share of
Universal common stock was exchanged for .67 shares of the Company's common
stock or approximately 19.3 million shares. Universal's operations include
approximately 34,000 outdoor advertising display faces in 23 major metropolitan
markets. In addition, the Company assumed approximately $567 million of
Universal's long-term debt, $242 million of which was refinanced at the closing
date using the Company's credit facility. In May 1998, the Company completed a
public tender offer for the 9.75% debentures, which made up the remaining $325
million. This acquisition is being accounted for as a purchase with resulting
goodwill of approximately $1,163 million being amortized over 25 years on a
straight-line basis. This purchase price allocation is preliminary and the
results of operations of Universal will be included in the Company's financial
statements beginning April 1, 1998.
The results of operations for the three month periods ending March 31, 1998 and
1997 does not include the operations of Universal. Assuming this merger and the
acquisitions of Eller Media ("Eller") and Paxson Radio ("Paxson") had occurred
at January 1, 1997, unaudited pro forma consolidated results of operations for
the three months ended March 31, 1998 and 1997 would have been as follows:
Pro Forma (Unaudited)
Three Months Ended March 31
In thousands, except per share data
1998 1997
Net revenue $ 258,934 $ 224,974
Net loss $ (7,788) $ (20,169)
Net loss per share:
Basic $ (0.07) $ (0.20)
Diluted $ (0.08) $ (0.20)
The pro forma information above is presented in response to applicable
accounting rules relating to business acquisitions and is not necessarily
indicative of the actual results that would have been achieved had the
acquisitions of Eller and Paxson and the merger with Universal occurred at the
beginning of 1997, nor is it indicative of future results of operations. The
Company had other acquisitions during the first quarter of 1998 and during 1997,
the effects of which, individually and in aggregate, were not material to the
Company's consolidated financial position or results of operations.
To facilitate possible future acquisitions, including More Group as well as the
public offerings referred to below, on March 16, 1998 the Company filed a
registration statement on Form S-3 covering a combined $1.5 billion of debt
securities, junior subordinated debt securities, preferred stock, common stock,
warrants, stock purchase contracts and stock purchase units (the "shelf
registration statement"). The shelf registration statement also covers preferred
securities that may be issued from time to time by the Company's three Delaware
statutory business trusts and guarantees of such preferred securities by the
Company.
On March 30, 1998, the Company completed its offering of six million shares of
common stock under the shelf registration statement. The net proceeds to the
Company were $577.8 million, which was used to reduce the outstanding balance
under the credit facility. Also, on March 30, 1998 the Company completed its
offering of $500 million aggregate principal amount of 2 5/8% Senior Convertible
Notes due April 1, 2003, under the shelf registration statement. The net
proceeds to the Company were $492.5 million, which was used to reduce the
outstanding balance under the credit facility. Subsequent to March 31, 1998, the
Company issued an additional $75 million aggregate principal amount of 2 5/8%
Senior Convertible Notes due April 1, 2003.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Results of Operations
Comparison of Three Months Ended March 31, 1998 to Three Months Ended March 31,
1997.
(In thousands of dollars, except per share data)
<TABLE>
<CAPTION>
As-Reported Pro Forma
Three Months Ended March 31, % Increase % Increase
Consolidated 1998 1997 (Decrease) (Decrease)
------------ ---- ---- ---------- ----------
<S> <C> <C> <C> <C>
Net revenue $203,642 $ 98,289 107.2% 15.1%
Operating expenses 123,774 63,055 96.3% 10.1%
Depreciation and amortization 43,011 15,946 169.7% 10.0%
Operating income 30,948 16,434 88.3% 60.3%
Interest expense 25,701 11,046 132.7%
Net income 5,579 7,599 (26.6)%
Net income per share:
Basic $ .06 $ .10 (40.0)%
Diluted $ .04 $ .10 (60.0)%
</TABLE>
The majority of the growth in the "as reported" net revenue and operating
expenses for the quarter ended March 31, 1998 was due to the acquisitions of the
Eller Media Company ("Eller") in April of 1997 and Paxson Radio ("Paxson"),
which has been included in the operations of the Company since October of 1997.
In addition 16 radio stations and 4,600 outdoor display faces were purchased
during the first three months of 1998, the effects of which, individually and in
the aggregate, were not material to the Company's consolidated financial
position or results of operations:
The majority of the increase in "as reported" depreciation and amortization was
primarily due to the acquisition of the tangible and intangible assets
associated with the purchase the above-mentioned radio acquisitions and Eller.
Interest expense increased primarily due to an increase in the average amount of
debt outstanding -- which resulted from the above-mentioned radio acquisitions
and the acquisition of Eller. The majority of the decrease in net income also
was primarily due to the increase in depreciation and amortization expense
resulting from the aforementioned business acquisitions.
Pro forma presentation referred to above assumes the acquisition and/or merger
of Eller, Paxson and Universal occurred on January 1, 1997. Pro forma net
revenue increased due to improved advertising rates in the broadcasting segment
and improved occupancy and increased advertising rates within the outdoor
segment. Pro forma operating expenses increased primarily from the incremental
selling costs related to the additional revenues
Liquidity and Capital Resources
The major sources of capital for the Company have been cash flow from
operations, advances on its $1.75 billion revolving long-term line of credit
facility (the "credit facility"), other borrowings, and funds provided by the
initial stock offering in 1984 and subsequent stock offerings in July 1991,
October 1993, June 1996, May 1997, September 1997 and March 1998. As of March
31, 1998, the Company had $286.0 million outstanding under its credit facility,
a total of $9.6 million in a guaranty to a third party, and $17.6 million in
letters of credit, leaving $1,436.8 million available for future borrowings
under the credit facility. In addition, the Company had $25.8 million in
unrestricted cash and cash equivalents on hand at March 31, 1998.
Funding for the above-mentioned radio acquisitions and the refinancing of the
$242 million long-term debt in the merger with Universal was provided by cash
flow from operations and the Company's credit facility. The credit facility
converts into a reducing revolving line of credit on the last business day of
September 2000, with quarterly repayment of the outstanding principal balance to
begin the last business day of September 2000 and continue during the subsequent
five year period, with the entire balance to be repaid by the last business day
of June 2005.
On March 16, 1998 the Company filed a registration statement on Form S-3
covering a combined $1.5 billion of debt securities, junior subordinated debt
securities, preferred stock, common stock, warrants, stock purchase contracts
and stock purchase units (the "shelf registration statement"). The shelf
registration statement also covers preferred securities that may be issued from
time to time by the Company's three Delaware statutory business trusts and
guarantees of such preferred securities by the Company.
On March 30, and April 28, 1998 the Company completed an offering of $500
million and $75 million aggregate principal amounts, respectively, of 2.625%
senior convertible notes due April 1, 2003 resulting in net proceeds to the
Company of $492.5 million and $74.0 million, respectively, which was used to pay
down the outstanding balance under the credit facility. The notes are
convertible into the Company's common stock at any time following the date of
original issuance, unless previously redeemed, at a conversion price of $123.90
per share, subject to adjustment in certain events. Interest on the notes is
payable semiannually on each April 1 and October 1, beginning October 1, 1998.
The notes are redeemable, in whole or in part, at the option of the Company at
any time on or after April 1, 2001 and until March 31, 2002 at 101.050%; on or
after April 1, 2002 and until March 31, 2003 at 100.525%; and on or after April
1, 2003 at 100%, plus accrued interest.
On March 30, 1998, the Company completed an offering of six million shares of
common stock. The net proceeds to the Company were $578.2 million, which was
used to pay down the outstanding balance under the credit facility.
Due to the above mentioned debt and equity issuance, in May 1998 the Company
filed another registration statement on Form S-3 covering a combined $1.5
billion of debt securities, junior subordinated debt securities, preferred
stock, common stock, warrants, stock purchase contracts, stock purchase units
and preferred securities that may be issued from time to time by the Company's
three Delaware statutory business trusts and guarantees of such preferred
securities by the Company.
Future acquisitions of broadcasting stations, outdoor facilities and other
media-related properties, affected in connection with the implementation of the
Company's acquisition strategy are expected to be financed from increased
borrowings under the credit facility, additional public equity and debt
offerings and cash from operations.
During the first three months of the year, the Company made principal payments
on the credit facility totaling $1,100.2 million including $492.5 million and
$577.8 million from the net proceeds from the convertible debt offering and the
equity offering, respectively and purchased capital equipment totaling $8.0
million.
The Company believes that cash flow from operations as well as the proceeds from
securities offerings made by the Company from time to time will be sufficient to
make all required future interest and principal payments on the credit facility
and will be sufficient to fund all anticipated capital expenditures.
During the first three months of 1998, the Company purchased the broadcasting
assets of certain radio stations in Mobile, Alabama, Monterey, California,
Allentown, Pennsylvania, Jackson, Mississippi and in Dayton, Ohio for
approximately $24.1 million, $23.7 million, $29.0 million, $20.0 million and
$14.5 million, respectively. Also, during the first quarter, the Company
acquired approximately 4,600 outdoor display faces in 10 markets for $106.5
million.
The Company's earnings are affected by fluctuations in the value of the U.S.
dollar as compared to foreign currencies as a result of its investments in
Australia, New Zealand, the Czech Republic and China, all of which are accounted
for under the equity method. The Company believes that the foreign currency
risks to which it is exposed are not reasonably likely to have a material
adverse effect on the Company's cash flows, results of operations or financial
position given the concentration of revenue in the United States.
The ratio of earnings to combined fixed charges and preferred stock dividends is
as follows:
<TABLE>
<CAPTION>
3 Months ended
March 31, Year Ended
- ------------------------ ----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1998 1997 1997 1996 1995 1994 1993
- ------ ------ ------ ------ ------ ------ ------
1.29 2.03 2.32 3.63 3.32 5.54 3.81
</TABLE>
The ratio of earnings of combined fixed charges and preferred stock dividends
has been computed on a total enterprise basis. Earnings represent income from
continuing operations before income taxes less equity in undistributed net
income (loss) of unconsolidated affiliates plus fixed charges. Fixed charges
represent interest, amortization of debt discount and expense, and the estimated
interest portion of rental charges. The Company had no Preferred Stock
outstanding and paid no dividends thereon for any period presented.
Risks Regarding Forward Looking Statements
Except for the historical information, this report contains various
"forward-looking statements" which represent the Company's expectations or
beliefs concerning future events, including the future levels of cash flow from
operations. The Company cautions that these forward-looking statements involve a
number of risks and uncertainties and are subject to many variables which could
have an adverse effect upon the Company's financial performance. These variables
include economic conditions, the ability of the Company to integrate the
operations of Eller, Paxson and Universal, shifts in population and other
demographics, level of competition for advertising dollars, fluctuations in
operating costs, technological changes and innovations, changes in labor
conditions, changes in governmental regulations and policies, and certain other
factors set forth in the Company's SEC filings. Actual results in the future
could differ materially from those described in the forward-looking statements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Interest Rate Risk:
At March 31, 1998, approximately 26% of the Company's long-term debt bears
interest at variable rates. Accordingly, the Company's earnings and after tax
cash flow are affected by changes in interest rates. Assuming the current level
of borrowings at variable rates and assuming a two percentage point change in
the first quarter 1998 average interest rate under these borrowings, it is
estimated that the Company's first quarter 1998 interest expense would have
changed by $5.7 million and that the Company's first quarter 1998 net income and
after tax cash flow would have changed by $3.7 million. In the event of an
adverse change in interest rates, management would likely take actions to
further mitigate its exposure. However, due to the uncertainty of the actions
that would be taken and their possible effects, the analysis assumes no such
actions. Further the analysis does not consider the effects of the change in the
level of overall economic activity that could exist in such an environment.
At March 31, 1998, the Company has several interest rate protection agreements
that it obtained through an acquisition. These agreements, the fair value of
which are not material at March 31, 1998 and are not expected to become material
in the near term, have not been considered in the above analysis as the Company
intends to terminate these agreements during 1998.
Equity Price Risk:
The carrying value of the Company's available-for-sale equity securities is
affected by changes in their quoted market prices. It is estimated that a 20%
change in the market prices of these securities would change their carrying
value at March 31, 1998 by $11.9 million.
<PAGE>
Part II -- OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits. See Exhibit Index on Page 14
(b) Reports on Form 8-K
Filing Date Items Reported Financial Statements Reported
8-K 3/12/98 Pro forma financial Clear Channel Communications,
statements assuming Inc. 12/31/97 Universal
the merger between Outdoor Holdings, Inc.
the Company and 12/31/97 Pro forma statements
` Universal occurred on 12/31/97
1/1/97.
8-K/A 3/23/98 Quantitative and None
Qualitative Disclosure
About Market Risk at
12/31/97
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CLEAR CHANNEL COMMUNICATIONS, INC.
Date May 14, 1998 /s/ L. Lowry Mays
L. Lowry Mays - Chairman and
Chief Executive Officer
Date May 14, 1998 /s/ Herbert W. Hill, Jr.
Herbert W. Hill, Jr.
Senior Vice President and
Chief Accounting Officer
<PAGE>
INDEX TO EXHIBITS
Exhibit Number
Description
2.1 Agreement and Plan of Merger dated as of October 23, 1997, among
Universal Outdoor Holdings, Inc., the Company, and UH Merger
Sub, Inc. (incorporated by reference to the exhibits of the
Company's Current Report on Form 8-K dated November 3, 1997).
3.1 Current Articles of Incorporation of the Company (incorporated
by reference to the exhibits of the Company's Registration
Statement on Form S-3 (Reg. No. 333-33371) dated September 9,
1997).
3.2 Second Amended and Restated Bylaws of the Company (incorporated
by reference to the exhibits of the Company's Registration
Statement on Form S-3 (Reg. No. 333-33371) dated September 9,
1997).
4.1 Buy-Sell Agreement by and between Clear Channel Communications,
Inc., L. Lowry Mays, B. J. McCombs, John M. Schaefer and John W.
Barger, dated May 31, 1977 (incorporated by reference to the
exhibits of the Company's Registration Statement on Form S-1
(Reg. No. 33-289161) dated April 19, 1984).
4.2 Senior Indenture dated October 1, 1997, by and between Clear
Channel Communications, Inc. and The Bank of New York as Trustee
(incorporated by reference to exhibit 4.2 of the Company's
Quarterly Report on Form 10-Q for the quarter ended September
30, 1997).
4.3 Third Amended and Restated Credit Agreement by and among Clear
Channel Communications, Inc., NationsBank of Texas, N.A., as
administrative lender, the First National Bank of Boston, as
documentation agent, the Bank of Montreal and Toronto Dominion
(Texas), Inc., as co-syndication agents, and certain other
lenders dated April 10, 1997 (the "Credit Facility")
(incorporated by reference to the exhibits of the Company's
Amendment No. 1 to the Registration Statement on Form S-3 (Reg.
No. 333-25497) dated May 9, 1997).
4.4 First Supplemental Indenture dated March 30, 1998 to Senior
Indenture dated October 1, 1997, by and between Clear Channel
Communications, Inc. and the Bank of New York as Trustee.
11 Computation of Earnings Per Share
12 Computation of Ratio of Earnings to Fixed Charges
27 Financial Data Schedule at March 31, 1998
27.1 Financial Data Schedule at March 31, 1997 (incorporated by
reference to exhibit 27 of the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997).
EXHIBIT 4.4
CLEAR CHANNEL COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK,
as Trustee
----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 30, 1998
TO
SENIOR INDENTURE
Dated as of October 1, 1997
----------------------
2 5/8% Senior Convertible Notes
Due April 1, 2003
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the 30th
day of March 1998 (this "First Supplemental
Indenture"), between Clear Channel Communications,
Inc., a corporation duly organized and existing under
the laws of the State of Texas (hereinafter sometimes
referred to as the "Company") and The Bank of New
York, a New York banking corporation, as trustee
(hereinafter sometimes referred to as the "Trustee")
under the Indenture dated as of October 1, 1997,
between the Company and the Trustee (the
"Indenture"); as set forth in Section 7.01 hereto and
except as otherwise set forth herein, all terms used
and not defined herein are used as defined in the
Indenture).
WHEREAS the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its Securities, to be issued
from time to time in series as might be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be authenticated
and delivered thereunder as in the Indenture provided;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its 2 5/8% Senior Convertible Notes, Due April 1, 2003 (said series
being hereinafter referred to as the "Series 2 5/8% Notes"), the form of such
Series 2 5/8% Notes and the terms, provisions and conditions thereof to be as
provided in the Indenture and this First Supplemental Indenture;
WHEREAS the Company desires and has requested the Trustee to
join with it in the execution and delivery of this First Supplemental Indenture,
and all requirements necessary to make this First Supplemental Indenture a valid
instrument, enforceable in accordance with its terms, and to make the Series 2
5/8% Notes, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery of this Supplemental Indenture and the
Series 2 5/8% Notes have been in all respects duly authorized.
<PAGE>
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Series 2 5/8% Notes by the holders thereof, and for the
purpose of setting forth, as provided in the Indenture, the form of the Series 2
5/8% Notes and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
General Terms and Conditions of
the Series 2 5/8% Notes
SECTION 1.01. (a) There shall be and is hereby authorized a
series of Securities designated the "2 5/8% Senior Convertible Notes Due April
1, 2003", limited in aggregate principal amount to $500,000,000 ($575,000,000 if
the option described in Section 2(b) of the Underwriting Agreement relating to
the Series 2 5/8% Notes dated March 25, 1998 between the Company and the
Underwriters listed therein is exercised). The Series 2 5/8% Notes shall mature
and the principal thereof shall be due and payable, together with all accrued
and unpaid interest thereon on April 1, 2003. The Series 2 5/8% Notes shall be
convertible into shares of Common Stock, $0.10 par value, of the Company, as
such shares shall be constituted at the time of conversion ("Common Stock"), in
accordance with Article IV.
SECTION 1.02. (a) The Series 2 5/8% Notes shall be issued as
Global Securities. Principal and interest on the Series 2 5/8% Notes issued in
certificated form will be payable, the transfer of such Series 2 5/8% Notes will
be registrable and such Series 2 5/8% Notes will be exchangeable for Series 2
5/8% Notes bearing identical terms and provisions at the office or agency of the
Company in the Borough of Manhattan, The City and State of New York provided for
that purpose; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such address
as shall appear in the Security Register and that the payment of principal with
respect to the Series 2 5/8% Notes will only be made upon surrender of the
Series 2 5/8% Notes to the Trustee.
SECTION 1.03. Each Series 2 5/8% Note will bear interest at
the rate of 2 5/8% per annum from March 30, 1998 until the principal thereof
becomes due and payable, payable (subject to the provisions of Article III)
semi-annually in arrears on April 1 and October 1 of each year (each, an
"Interest Payment Date", commencing on October 1, 1998), to the person in whose
name such Series 2 5/8% Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
installment, which, except as set forth below, shall be, March 15 or September
15 next preceding the Interest Payment Date with respect to such interest
installment. Any installment of interest not punctually paid or duly provided
for shall forthwith cease to be payable to the registered holder of a Series 2
5/8% Note on such regular record date and may be paid to the person in whose
name such Series 2 5/8% Note (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof to be given
to the registered holders of the Series 2 5/8% Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Series 2 5/8% Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on the Series 2 5/8% Notes is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay).
SECTION 1.04. The Series 2 5/8% Notes are not entitled to any
sinking fund.
ARTICLE II
Optional Redemption of the Series
2 5/8% Notes
SECTION 2.01. Series 2 5/8% Notes may not be redeemed by the
Company prior to April 1, 2001. The Company shall have the right to redeem the
Series 2 5/8% Notes (other than Series 2 5/8% Notes that have been converted in
accordance with Article IV), as a whole or from time to time in part, at a
redemption price equal to the following prices, expressed in percentages of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to,
but excluding, the date of such redemption (the "Optional Redemption Price").
Any redemption pursuant to this Section will be made upon not less than 15 nor
more than 60 days' notice. If redeemed during the 12-month period beginning
April 1:
Year Redemption Price
2001 101.050%
2002 100.525%
and 100% at April 1, 2003; provided that any semi-annual payment of interest
becoming due on the date fixed for redemption shall be payable to the Holders on
the relevant Record Date for the Series 2 5/8% Notes being redeemed.
ARTICLE III
Repurchase at Option of Holders upon Change In Control
SECTION 3.01. In the event that a Change in Control (as
hereinafter defined) shall occur, each Holder shall have the right, at the
Holder's option, to require the Company to repurchase, and upon the exercise of
such right the Company shall repurchase, all of such Holder's Series 2 5/8%
Notes, or any portion of the principal amount thereof that is an integral
multiple of $1,000 (provided that no single Series 2 5/8% Note may be
repurchased in part unless the portion of the principal amount of such Series 2
5/8% Note to be outstanding after such repurchase is equal to $1,000 or an
integral multiple of $1,000), on the date (the "Repurchase Date") that is 30
days after the date of the Company Notice (as defined in Section 3.02) for cash
at a purchase price equal to 100% of the principal amount (the "Repurchase
Price") plus interest accrued and unpaid to, but excluding, the Repurchase Date.
If the Repurchase Date is between a record date for an Interest Payment Date and
such Interest Payment Date, then the interest payable on such Interest Payment
Date shall be paid to the Holder of record of the Series 2 5/8% Note on such
Interest Payment Date. Whenever in this First Supplemental Indenture there is a
reference, in any context, to the principal of any Series 2 5/8% Note as of any
time, such reference shall be deemed to include reference to the Repurchase
Price payable in respect of such Series 2 5/8% Note to the extent that such
Repurchase Price is, was or would be so payable at such time, and express
mention of the Repurchase Price in any provision of this First Supplemental
Indenture shall not be construed as excluding the Repurchase Price in those
provisions of this First Supplemental Indenture when such express mention is not
made.
SECTION 3.02. (a) Unless the Company shall have theretofore
called for redemption all of the outstanding Series 2 5/8% Notes, on or before
the 15th day after the occurrence of a Change in Control, the Company or, at the
written request of the Company on or before the tenth (10th) day after receipt
of such request, the Trustee, shall give to all Holders of Series 2 5/8% Notes
notice (the "Company Notice") of the occurrence of the Change in Control and of
the repurchase right set forth herein arising as a result thereof. The Company
shall also deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date;
(2) the date by which the repurchase right must exercised;
(3) the Repurchase Price;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right;
(5) that on the Repurchase Date the Repurchase Price will become due
and payable upon each such Series 2 5/8% Note designated by the Holder to be
repurchased, and that interest thereon shall cease to accrue on and after said
date;
(6) the Conversion Price, the date on which the right to convert the
Series 2 5/8% Notes to be repurchased will terminate and the places where such
Series 2 5/8% Notes may be surrendered for conversion; and
(7) the place or places where such Series 2 5/8% Notes are to be
surrendered for payment of the Repurchase Price and accrued interest, if any.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Series 2 5/8%
Notes.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the
Series 2 5/8% Notes to be repurchased (and, if any Series 2 5/8% Note is to be
repurchased in part, the serial number thereof, the portion of the principal
amount thereof to be repurchased and the name of the Person in which the portion
thereof to remain outstanding after such repurchase is to be registered) and a
statement that an election to exercise the repurchase right is being made
thereby, and (ii) the Series 2 5/8% Notes with respect to which the repurchase
right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash, for payment to the Holder on
the Repurchase Date, together with accrued and unpaid interest to, but
excluding, the Repurchase Date payable with respect to the Series 2 5/8% Notes
(or portion thereof) as to which the repurchase right has been exercised.
(d) If any Series 2 5/8% Note (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount of
such Series 2 5/8% Note (or portion thereof, as the case may be) shall, until
paid, bear interest from the Repurchase Date at the rate of 2 5/8% per annum,
and each Series 2 5/8% Note shall remain convertible into Common Stock until the
principal of such Series 2 5/8% Note (or portion thereof, as the case may be)
shall have been paid or duly provided for.
(e) Any Series 2 5/8% Note which is to be repurchased only in part
shall be surrendered to the Trustee (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Series 2 5/8%
Note without service charge, a new Series 2 5/8% Note or Series 2 5/8% Notes,
containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the portion of the
principal of the Series 2 5/8% Note so surrendered that was not repurchased.
(f) Any Holder that has delivered to the Trustee its written notice
exercising its right to require the Company to repurchase its Series 2 5/8%
Notes upon a Change in Control shall have the right to withdraw such notice at
any time prior to the close of business on the Repurchase Date by delivery of a
written notice of withdrawal to the Trustee prior to the close of business on
such date. A Series 2 5/8% Note in respect of which a Holder is exercising its
option to require repurchase upon a Change in Control may be converted into
Common Stock only if such Holder withdraws its notice in accordance with the
preceding sentence.
SECTION 3.03. For purposes of this Article III:
(a) the term "beneficial owner" shall be determined in accordance with
Rule l3d-3 promulgated by the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); and
(b) the term "Person" shall include any syndicate or group which would
be deemed to be a "Person" under Section 13(d)(3) of the Exchange Act.
SECTION 3.04. A "Change in Control" shall be deemed to have
occurred at such time after the original issuance of the Series 2 5/8% Notes as:
(a) any Person, other than the Company, any subsidiary of the Company
or any entity Controlled (as defined below) by the foregoing, or any employee
benefit plan of the Company or any such subsidiary, L. Lowry Mays, B. J. McCombs
or their Affiliates, is or becomes the beneficial owner, directly or indirectly,
through a purchase or other acquisition transaction or series of transactions
(other than a merger or consolidation involving the Company), of shares of
capital stock of the Company entitling such Person to exercise in excess of 50%
of the total voting power of all shares of capital stock of the Company entitled
to vote generally in the election of directors;
(b) there occurs any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company, or any sale or transfer of the assets of the Company as, or
substantially as, an entirety to another Person (other than (i) any such
transaction pursuant to which the Holders of the Common Stock immediately prior
to such transaction have, directly or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after such transaction which
entitle such Holders to exercise in excess of 50% of the total voting power of
all shares of capital stock of the continuing or surviving corporation entitled
to vote generally in the election of directors and (ii) any merger (1) which
does not result in any reclassification, conversion, exchange or cancelation of
outstanding shares of Common Stock or (2) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of Common Stock and separate series of Common Stock carrying substantially the
same relative rights as the Common Stock); or
(c) a change in the Board of Directors of the Company in which the
individuals who constituted the Board of Directors of the Company at the
beginning of the one-year period immediately preceding such change (together
with any other director whose election by the Board of Directors of the Company
or whose nomination for election by the shareholders of the Company was approved
by a vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office; provided, however, that a Change in
Control shall not be deemed to have occurred if either (a) the Closing Price (as
defined in Section 4.05) per share of the Common Stock for any ten (10) Trading
Days (as defined in Section 4.04) within the period of 20 consecutive Trading
Days ending immediately before the Change in Control shall equal or exceed 105%
of the Conversion Price (as defined in Section 4.05) in effect on each such
Trading Day, or (b) (i) at least 90% of the consideration (excluding cash
payments for fractional shares) in the transaction or transactions constituting
the Change in Control consists of shares of Common Stock with full voting rights
traded on a national securities exchange or quoted on the Nasdaq National Market
(or which will be so traded or quoted when issued or exchanged in connection
with such Change in Control) (such securities being referred to as "Publicly
Traded Securities") and as a result of such transaction or transactions such
Series 2 5/8% Notes become convertible solely into such Publicly Traded
Securities and (ii) the consideration in the transaction or transactions
constituting the Change of Control consists of cash, Publicly Traded Securities
or a combination of cash and Publicly Traded Securities with an aggregate fair
market value (which, in the case of Publicly Traded Securities, shall be equal
to the average Closing Price of such Publicly Traded Securities during the ten
(10) consecutive Trading Days, commencing with the third Trading Day, following
consummation of the transaction or transactions constituting the Change in
Control) is at least 105% of the Conversion Price in effect on the date
immediately preceding the date of consummation of such Change in Control. The
term "Controlled" shall mean ownership or control of more than 50% of the voting
power of such entity.
SECTION 3.05. In the case of any reclassification, change,
consolidation, merger, combination, sale or conveyance to which Section 4.06
applies, in which the Common Stock of the Company is changed or exchanged as a
result into the right to receive shares of stock and other securities or
property or assets (including cash) which includes shares of Common Stock of the
Company or Common Stock of another Person that are, or upon issuance will be,
traded on a United States national securities exchange or approved for trading
on an established automated over-the-counter trading market in the United States
and such shares constitute at the time such change or exchange becomes effective
in excess of 50% of the aggregate fair market value of such shares of stock and
other securities, property and assets (including cash) (as determined by the
Company, which determination shall be conclusive and binding), then the Person
formed by such consolidation or resulting from such merger or combination or
which acquires the properties or assets (including cash) of the Company, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
(which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) modifying the provisions of this First
Supplemental Indenture relating to the right of Holders to cause the Company to
repurchase the Series 2 5/8% Notes following a Change in Control and the
definitions of the Common Stock and Change in Control, as appropriate, and such
other related definitions set forth herein as determined in good faith by the
Company (which determination shall be conclusive and binding), to make such
provisions apply to the Common Stock and the issuer thereof if different from
the Company and Common Stock of the Company (in lieu of the Company and the
Common Stock of the Company).
ARTICLE IV
Conversion
SECTION 4.01. Subject to and upon compliance with the
provisions of this First Supplemental Indenture, the Holder of any Series 2 5/8%
Note shall have the right, at his option, at any time prior to the close of
business on April 1, 2003 (except that, with respect to any Series 2 5/8% Note
or portion of a Series 2 5/8% Note which shall be called for redemption, such
right (except as provided in Section 4.05) shall terminate at the close of
business on the fifth Business Day preceding the date fixed for redemption of
such Series 2 5/8% Note or portion of a Series 2 5/8% Note, unless the Company
shall default in payment due upon redemption thereof) to convert the principal
amount of any such Series 2 5/8% Note, or any portion of such principal amount
which is $1,000 or an integral multiple thereof, into that number of fully paid
and nonassessable shares of Common Stock obtained by dividing the principal
amount of the Series 2 5/8% Note or portion thereof surrendered for conversion
by the Conversion Price in effect at such time, by surrender of the Series 2
5/8% Note so to be converted in whole or in part in the manner provided,
together with any required funds, in Section 4.02. A Holder of Series 2 5/8%
Notes is not entitled to any rights of a Holder of Common Stock until such
Holder has converted his Series 2 5/8% Notes to Common Stock, and only to the
extent such Series 2 5/8% Notes are deemed to have been converted to Common
Stock under this Article IV.
SECTION 4.02. In order to exercise the conversion privilege,
the beneficial Holder must complete the appropriate instruction form for
conversion pursuant to the Depositary's book-entry conversion program, deliver
by book-entry delivery an interest in such Series 2 5/8% Note in global form,
furnish appropriate endorsements and transfer documents if required by the
Company or the Trustee or Conversion Agent appointed by the Company (the
"Conversion Agent"), and pay the funds, if any, required by this Section 4.02
and any transfer taxes if required pursuant to Section 4.07.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Holder of the Series 2-5/8% Note (as if such
transfer were a transfer of the Series 2 5/8% Note or Series 2 5/8% Notes (or
portion thereof) so converted), the Company shall issue and shall deliver to
such Holder at the office or agency maintained by the Company for such purpose,
a certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Series 2 5/8% Note or portion thereof in
accordance with the provisions of this Article and a check or cash in respect of
any fractional interest in respect of a share of Common Stock arising upon such
conversion, as provided in Section 4.03. In case any Series 2 5/8% Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 4.03, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of the Series 2 5/8% Note so surrendered,
without charge to him, a new Series 2 5/8% Note or Series 2 5/8% Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Series 2 5/8% Note.
Each conversion shall be deemed to have been effected as to
any such Series 2 5/8% Note (or portion thereof) on the date on which the
requirements set forth above in this Section 4.02 have been satisfied as to such
Series 2 5/8% Note (or portion thereof), and the Person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the Holder of record
of the shares represented thereby; provided, however, that if any such surrender
occurs on any date when the stock transfer books of the Company shall be closed,
the Person in whose name the certificates are to be issued as the record Holder
thereof shall be deemed for all purposes to have become the Holder of record on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such Series 2 5/8% Note shall be surrendered.
Any Series 2 5/8% Note or portion thereof surrendered for
conversion during the period from the close of business on the Record Date for
any Interest Payment Date to the close of business on the Business Day next
preceding the following Interest Payment Date shall (unless such Series 2 5/8%
Note or portion thereof being converted shall have been called for redemption
during the period from the close of business on such record date to the close of
business on the Business Day next preceding the following Interest Payment Date)
be accompanied by payment, in New York Clearing House funds or other funds
acceptable to the Company, of an amount equal to the interest payable on such
Interest Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Series 2 5/8% Notes. No
adjustment shall be made for interest accrued on any Series 2 5/8% Note
converted or for dividends on any shares issued upon the conversion of such
Series 2 5/8% Note.
SECTION 4.03. No fractional shares of Common Stock or scrip
representing fractional shares shall be issued upon conversion of Series 2 5/8%
Notes. If more than one Series 2 5/8% Note shall be surrendered for conversion
at one time by the same Holder, the number of full shares which shall be
issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Series 2 5/8% Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Series 2 5/8% Note or Series 2 5/8%
Notes, the Company shall make an adjustment and payment therefor in cash at the
current market value thereof to the Holder of Series 2 5/8% Notes. The current
market value of a share of Common Stock shall be the Closing Price on the first
Trading Day immediately preceding the day on which the Series 2 5/8% Notes (or
specified portions thereof) are deemed to have been converted.
SECTION 4.04. The conversion price shall be $123.90 (herein
called the "Conversion Price") subject to adjustment as provided in this Article
IV.
SECTION 4.05. The Conversion Price shall be adjusted from time
to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all Holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Price in effect at the opening of business on the date
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company. If any dividend or distribution of
the type described in this Section 4.05(a) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all Holders
of its outstanding shares of Common Stock entitling them (for a period expiring
within 45 days after the date fixed for determination of shareholders entitled
to receive such rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price (as defined
below) on the date fixed for determination of shareholders entitled to receive
such rights or warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date fixed for determination of shareholders entitled
to receive such rights or warrants by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on the
date fixed for determination of shareholders entitled to receive such rights and
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such Current Market Price,
and of which the denominator shall be the number of shares of Common Stock
outstanding on the date fixed for determination of shareholders entitled to
receive such rights and warrants plus the total number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall be
successively made whenever any such rights and warrants are issued, and shall
become effective immediately after the opening of business on the day following
the date fixed for determination of shareholders entitled to receive such rights
or warrants. To the extent that shares of Common Stock are not delivered after
the expiration of such rights or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such date fixed for the determination of shareholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the Holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such
rights or warrants, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) In case the Company shall, by dividend or otherwise, distribute to
all Holders of its Common Stock shares of any class of capital stock of the
Company (other than any dividends or distributions to which Section 4.05(a)
applies) or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 4.05(b), and excluding
any dividend or distribution paid exclusively in cash (any of the foregoing
hereinafter called the "Distributed Securities")), then, in each such case
(unless the Company elects to reserve such Distributed Securities for
distribution to the Holders upon the conversion of the Series 2 5/8% Notes so
that any such Holder converting Series 2 5/8% Notes will receive upon such
conversion, in addition to the shares of Common Stock to which such Holder is
entitled, the amount and kind of such Distributed Securities which such Holder
would have received if such Holder had converted its Series 2 5/8% Notes into
Common Stock immediately prior to the Record Date (as defined in Section 4.05(h)
for such distribution of the Distributed Securities)), the Conversion Price
shall be reduced so that the same shall be equal to the price determined by
multiplying the Conversion Price in effect on the Record Date (as defined below)
with respect to such distribution by a fraction of which the numerator shall be
the Current Market Price per share of the Common Stock on such Record Date less
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a resolution of the Board of
Directors) on the Record Date of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock and the denominator shall be
the Current Market Price per share of the Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following such
Record Date; provided, however, that in the event the then fair market value (as
so determined) of the portion of the Distributed Securities so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of a 2 5/8%
Note shall have the right to receive upon conversion the amount of Distributed
Securities such Holder would have received had such Holder converted each Series
2 5/8% Note on the Record Date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 4.05(d) by reference to
the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the
Current Market Price of the Common Stock.
In the event the Company implements a shareholder rights plan,
such rights plan shall provide that upon conversion of the Series 2 5/8% Notes
the Holders will receive, in addition to the Common Stock issuable upon such
conversion, the rights issued under such rights plan (notwithstanding the
occurrence of an event causing such rights to separate from the Common Stock at
or prior to the time of conversion).
Rights or warrants distributed by the Company to all Holders
of Common Stock entitling the Holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"): (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 4.05 (and no adjustment to the
Conversion Price under this Section 4.05 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Price shall be made under this Section 4.05(d). If
any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this First Supplemental Indenture, are subject
to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such event shall be
deemed to be the date of distribution and record date with respect to new rights
or warrants with such rights (and a termination or expiration of the existing
rights or warrants without exercise by any of the Holders thereof). In addition,
in the event of any distribution (or deemed distribution) of rights or warrants,
or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a
distribution amount for which an adjustment to the Conversion Price under
Section 4.05 was made, (1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by any Holders
thereof, the Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a Holder or Holders of Common Stock with respect to
such rights or warrants (assuming such Holder had retained such rights or
warrants), made to all Holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any Holders thereof, the
Conversion Price shall be readjusted as if such rights and warrants had not been
issued.
For purposes of this Section 4.05(d) and Sections 4.05(a) and
(b), any dividend or distribution to which this Section 4.05(d) is applicable
that also includes shares of Common Stock, or rights or warrants to subscribe
for or purchase shares of Common Stock (or both), shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, assets or
shares of capital stock other than such shares of Common Stock or rights or
warrants (and any further Conversion Price reduction required by this Section
4.05(d) with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of Common
Stock or such rights or warrants (and any further Conversion Price reduction
required by Sections 4.05(a) and (b) with respect to such dividend or
distribution shall then be made), except (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution" and "the
date fixed for such determination" within the meaning of Sections 4.05(a) and
(b), and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 4.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute to
all Holders of its Common Stock cash (excluding any cash that is distributed
upon a merger or consolidation to which Section 4.06 applies or as part of a
distribution referred to in Section 4.05(d)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such distributions
to all holders of its Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of which no
adjustment pursuant to this Section 4.05(e) has been made, and (2) the aggregate
of any cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors) of consideration payable in respect of any tender offer by
the Company for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to Section 4.05(f) has been made, exceeds 10% of
the product of the Current Market Price (determined as provided in Section
4.05(h)) on the Record Date with respect to such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on such
Record Date by a fraction (i) the numerator of which shall be equal to the
Current Market Price on the Record Date less an amount equal to the quotient of
(x) the excess of such combined amount over such 10% and (y) the number of
shares of Common Stock outstanding on the Record Date and (ii) the denominator
of which shall be equal to the Current Market Price on such Record Date;
provided, however, that, if the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price
of the Common Stock on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of a 2 5/8% Note shall have
the right to receive upon conversion the amount of cash such Holder would have
received had such Holder converted such Series 2 5/8% Note immediately prior to
such Record Date. If such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(f) In case a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock expires and such tender
offer (as amended upon the expiration thereof) requires the payment to
shareholders (based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors) that, combined together with (1) the aggregate of the
cash plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the Board of
Directors), as of the expiration of such tender offer, of consideration payable
in respect of any other tender offers, by the Company or any of its subsidiaries
for all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to this Section 4.05(f) has been made and (2) the aggregate
amount of any distributions to all Holders of the Common Stock made exclusively
in cash within 12 months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to Section 4.05(e) has been made,
exceeds 10% of the product of the Current Market Price (determined as provided
in Section 4.05(h)) as of the last time (the "Expiration Time") tenders could
have been made pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered shares) at
the Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the date of the Expiration Time by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following the Expiration
Time. If the Company is obligated to purchase shares pursuant to any such tender
offer, but the Company is permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in effect
if such tender offer had not been made. If the application of this Section
4.05(f) to any tender offer would result in an increase in the Conversion Price,
no adjustment shall be made for such tender offer under this Section 4.05(f).
(g) In case of a tender or exchange offer made by a Person other than
the Company or any subsidiary of the Company for an amount which increases the
offeror's ownership of Common Stock to more than 25% of the Common Stock
outstanding and shall involve the payment by such Person of consideration per
share of Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the Expiration Time that exceeds the
Current Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, and in which, as of the Expiration Time the Board of Directors
is not recommending rejection of the offer, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective as of immediately prior to the opening of business
on the day following the Expiration Time. In the event that such Person is
obligated to purchase shares pursuant to any such tender or exchange offer, but
such Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price which would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 4.05(g) shall not be made if, as of the
Expiration Time, the offering documents with respect to such offer disclose a
plan or intention to cause the Company to engage in any transaction described in
Article Eight of the Indenture.
(h) For purposes of this First Supplemental Indenture, the following
terms shall have the meaning indicated:
(1) "Closing Price" with respect to any securities on any day shall
mean the closing sale price regular way on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices, regular way, in each case on the New York Stock Exchange, or, if such
security is not listed or admitted to trading on such Exchange, on the principal
national security exchange or quotation system on which such security is quoted
or listed or admitted to trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such security on the over-the-counter market
on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or if not so
available, in such manner as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof, whose
determination shall be conclusive.
(2) "Current Market Price" shall mean the average of the daily Closing
Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to the date in question; provided, however, that (1) if the
"ex" date (as hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 4.05(a), (b), (c). (d), (e), (f) or (g)
occurs during such ten consecutive Trading Days, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other event, (2) if the
"ex" date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 4.05(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date
for the issuance or distribution requiring such computation and prior to the day
in question, the Closing Price for each Trading Day on and after the "ex" date
for such other event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (3) if the "ex" date for the
issuance or distribution requiring such computation is prior to the day in
question, after taking into account any adjustment required pursuant to clause
(1) or (2) of this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by adding thereto the amount of any cash and
the fair market value (as determined by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof in a manner
consistent with any determination of such value for purposes of Section 4.05(d),
(f) or (g), whose determination shall be conclusive and described in a
resolution of the Board of Directors or such duly authorized committee thereof,
as the case may be) of the evidences of indebtedness, shares of capital stock or
assets being distributed applicable to one share of Common Stock as of the close
of business on the day before such "ex" date. For purposes of any computation
under Section 4.05(f) or (g), the Current Market Price of the Common Stock on
any date shall be deemed to be the average of the daily Closing Prices per share
of Common Stock for such day and the next two succeeding Trading Days; provided,
however, that if the "ex" date for any event (other than the tender or exchange
offer requiring such computation) that requires an adjustment to the Conversion
Price pursuant to Section 4.05(a), (b), (c), (d), (e), (f) or (g) occurs on or
after the Expiration Time for the tender or exchange offer requiring such
computation and prior to the day in question, the Closing Price for each Trading
Day on and after the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the reciprocal of the fraction by which the
Conversion Price is so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term "ex" date, (1) when used with respect
to any issuance or distribution, means the first date on which the Common Stock
trades regular way on the relevant exchange or in the relevant market from which
the Closing Price was obtained without the right to receive such issuance or
distribution, (2) when used with respect to any subdivision or combination of
shares of Common Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at which such
subdivision or combination becomes effective, and (3) when used with respect to
any tender or exchange offer means the first date on which the Common Stock
trades regular way on such exchange or in such market after the Expiration Time
of such offer.
(3) "fair market value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's length transaction.
(4) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the Holders of Common Stock
have the right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or converted into
any combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable security is listed
or admitted for trading on the New York Stock Exchange or another national
security exchange, a day on which the New York Stock Exchange or such other
national security exchange is open for business or (y) if the applicable
security is quoted on the Nasdaq National Market, a day on which trades may be
made thereon or (z) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
(i) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections 4.05(a), (b), (c), (d), (e), (f) and (g),
as the Board of Directors considers to be advisable to avoid or diminish any
income tax to Holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any period of
time if the period is at least 20 days, the reduction is irrevocable during the
period and the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Company shall mail to Holders of record of the Series 2
5/8% Notes a notice of the reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(j) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1.00% in such
price; provided, however, that any adjustments which by reason of this Section
4.05(j) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under these Provisions
shall be made by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be.
(k) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail notice of such adjustment of the Conversion Price to
the Holder of each Series 2 5/8% Note at his last address appearing on the
Series 2 5/8% Note register, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(l) In any case in which this Section 4.05 provides that an adjustment
shall become effective immediately after a record date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder of any
Series 2 5/8% Note converted after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above such
conversion by reason of the adjustment required by such event and above the
Common Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 4.03.
(m) For purposes of this Section 4.05, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
SECTION 4.06. If any of the following events occur, namely (i)
any reclassification or change of the outstanding shares of Common Stock (other
than a subdivision or combination to which Section 4.05(c) applies), (ii) any
consolidation, merger or combination of the Company with another corporation as
a result of which Holders of Common Stock shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock, or (iii) any sale or conveyance of the
properties and assets of the Company as, or substantially as, an entirety to any
other corporation as a result of which Holders of Common Stock shall be entitled
to receive stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then the Company or the
successor or purchasing corporation, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that such Series 2 5/8% Notes shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a Holder of a number of shares of Common
Stock issuable upon conversion of such Series 2 5/8% Notes (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock available to
convert all such Series 2 5/8% Notes) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
assuming such Holder of Common Stock did not exercise his rights of election, if
any, as to the kind or amount of shares of stock and other securities or
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance (provided that,
if the kind or amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance is not the same for each
share of Common Stock in respect of which such rights of election shall not have
been exercised ("nonelecting share"), then for the purposes of this Section 4.06
the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance for each non-electing
share shall be deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares. Such supplemental indenture shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this First Supplemental Indenture.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Series 2 5/8% Notes, at
his address appearing on the Series 2 5/8% Note register, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 4.06 applies to any event or occurrence,
Section 4.05 shall not apply.
SECTION 4.07. The issue of stock certificates on conversions
of Series 2 5/8% Notes shall be made without charge to the converting Holder of
any Series 2 5/8% Note for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the Holder of any Series 2 5/8% Note converted, and the Company
shall not be required to issue or deliver any such stock certificate unless and
until the Person or Persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 4.08. The Company shall reserve, free from preemptive
rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to provide for the conversion of the Series 2
5/8% Notes from time to time as such Series 2 5/8% Notes are presented for
conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Series 2 5/8% Notes, the Company
will take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Series 2 5/8% Notes will upon issue be fully
paid and non-assessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Series 2 5/8% Notes hereunder require
registration with or approval of any governmental authority under any federal or
state law before such shares may be validly issued upon conversion, the Company
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that so long as the Common Stock
shall be listed or quoted on the New York Stock Exchange, the Nasdaq Stock
Market (National Market), or any other national securities exchange the Company
will, if permitted by the rules of such exchange, list and keep listed so long
as the Common Stock shall be so listed on such market or exchange, all Common
Stock issuable upon conversion of the Series 2 5/8% Notes.
SECTION 4.09. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Series 2
5/8% Notes to either calculate the Conversion Price or determine whether any
facts exist which may require any adjustment of the Conversion Price, or with
respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed, or herein or in a Series 2 5/8% Note or
any other supplemental indenture provided to be employed, in making the same.
The Trustee and any other Conversion Agent shall not be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock,
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Series 2 5/8% Note and the Trustee and any other
Conversion Agent make no representations with respect thereto. Subject to the
provisions of Section 601 of the Indenture, neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Series 2 5/8% Note for
the purpose of conversion or to comply with any of the duties, responsibilities
or covenants of the Company contained in this First Supplemental Indenture.
Without limiting the generality of the foregoing, neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture entered into pursuant
to Section 4.06 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders upon the
conversion of their Series 2 5/8% Notes after any event referred to in such
Section 4.06 or to any adjustment to be made with respect thereto, but, subject
to the provisions of Section 601 of the Indenture, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 4.10. In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock that would require an adjustment in the Conversion Price
pursuant to Section 4.05; or
(b) the Company shall authorize the granting to all or substantially
all the Holders of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder of Series 2 5/8% Notes at his address appearing on the Series 2 5/8%
Security Register for the Series 2 5/8% Notes, as promptly as possible but in
any event at least 15 days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, or rights or warrants are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that Holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
ARTICLE V
Form of Series 2 5/8% Notes
SECTION 5.01. The Series 2 5/8% Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Clear Channel Communications, Inc.
2 5/8% Senior Convertible Note due April 1, 2003
Registered $[ ],000,000
No. R-[ ] CUSIP 184502 AB8
CLEAR CHANNEL COMMUNICATIONS, INC., a corporation duly
organized and existing under the laws of the State of Texas (herein called the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $[ ],000,000 at the office or agency
of the Company in the Borough of Manhattan, The City of New York, on April 1,
2003 in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on said principal sum semiannually on April 1 and October 1 of
each year, commencing October 1, 1998 (each an "Interest Payment Date"), at said
office or agency, in like coin or currency, at the rate per annum specified in
the title hereof, from the April 1 or the October 1, as the case may be, next
preceding the date of this Note to which interest on the Notes has been paid or
duly provided for (unless the date hereof is the date to which interest on the
Notes has been paid or duly provided for, in which case from the date of this
Note), or if no interest has been paid on the Notes or duly provided for, from
March 30, 1998 until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after the
15th day of any March or September and before the next succeeding April 1 or
October 1, this Note shall bear interest from such April 1 or October 1, as the
case may be; provided, however, that if the Company shall default in the payment
of interest due on such April 1 or October 1, then this Note shall bear interest
from the next preceding April 1 or October 1 to which interest on the Notes has
been paid or duly provided for, or, if no interest has been paid on the Notes or
duly provided for, from March 30, 1998. The interest so payable, and punctually
paid or duly provided for, on any April 1 or October 1 will, except as provided
in the Indenture dated as of October 1, 1997, as supplemented by the First
Supplemental Indenture dated as of March 30, 1998 (herein called the
"Indenture"), duly executed and delivered by the Company and The Bank of New
York, as Trustee (herein called the "Trustee"), be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on the next preceding March 15 or September 15, as the case
may be (herein called the "Regular Record Date"), whether or not a Business Day,
and may, at the option of the Company, be paid by check mailed to the registered
address of such Person. Any such interest which is payable, but is not so
punctually paid or duly provided for, shall forthwith cease to be payable to the
registered Holder on such Regular Record Date and may be paid either to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed and upon such notice as may be required by such exchange, if such manner
of payment shall be deemed practical by the Trustee, all as more fully provided
in the Indenture. Notwithstanding the foregoing, in the case of interest payable
at Stated Maturity, such interest shall be paid to the same Person to whom the
principal hereof is payable.
The Bank of New York will be the Paying Agent, Conversion
Agent and the Security Registrar with respect to the Notes. The Company reserves
the right at any time to vary or terminate the appointment of any Paying Agent,
Conversion Agent or Security Registrar, to appoint additional or other Paying
Agents and other Security Registrars or Conversion Agents, which may include the
Company, and to approve any change in the office through which any Paying Agent,
Conversion Agent or Security Registrar acts; provided that there will at all
times be a Paying Agent and Conversion Agent in The City of New York and there
will be no more than one Security Registrar for the Notes.
This Note is one of the duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness (hereinafter called the
"Securities") of the Company, of the series hereinafter specified, all issued or
to be issued under and pursuant to the Indenture, to which Indenture and any
other indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee and any agent of the Trustee, any Paying
Agent, the Company and the Holders of the Securities and the terms upon which
the Securities are issued and are to be authenticated and delivered.
The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), may be subject to different
covenants and Events of Default and may otherwise vary as provided or permitted
in the Indenture. This Note is one of the series of Securities of the Company
issued pursuant to the Indenture and designated as the 2 5/8% Senior Convertible
Notes Due April 1, 2003 (herein called the "Notes").
Subject to the provisions of the Indenture, the Holder hereof
has the right, at its option, at any time prior to the close of business on the
maturity date, subject to prior redemption or repurchase, or, as to all or any
portion of this Note called for redemption, prior to the close of business on
the fifth Business Day preceding the date fixed for redemption (unless the
Company shall default in payment due upon redemption thereof), to convert the
principal hereof or any portion of such principal which is $1,000 or an integral
multiple thereof, into that number of shares of the Company's Common Stock, as
said shares shall be constituted at the date of conversion, obtained by dividing
the principal amount of this Note or portion thereof to be converted by the
Conversion Price of $123.90 or such Conversion Price as adjusted from time to
time as provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that purpose in New York, New York, and,
unless the shares issuable on conversion are to be issued in the same name as
this Note, duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or by his duly
authorized attorney. No adjustment in respect of interest or dividends will be
made upon any conversion; provided, however, that if this Note shall be
surrendered for conversion during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day preceding the interest payment date, this Note (unless it or the portion
being converted shall have been called for redemption during the period from the
close of business on any record date for the payment of interest to the close of
business on the Business Day preceding the interest payment date) must be
accompanied by an amount, in New York Clearing House funds or other funds
acceptable to the Company, equal to the interest payable on such interest
payment date on the principal amount being converted (provided, however, that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the Notes). No fractional shares will be
issued upon any conversion, but an adjustment in cash will be made, as provided
in the Indenture, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Note or Notes for conversion.
The Notes are not entitled to any sinking fund. At any time on
or after April 1, 2001, the Notes (other than Notes that are converted in
accordance with their terms) will be redeemable at the Company's option on at
least 15 but not more than 60 days' notice, as a whole or, from time to time in
part, at the following prices (expressed in percentages of the principal
amount), together with accrued interest to, but excluding, the date fixed for
redemption.
If redeemed during the 12-month period beginning April 1:
Redemption
Year Price
---- ----------
2001 . . . . . . 101.050%
2002 . . . . . . 100.525%
and 100% at April 1, 2003; provided that any semiannual payment of interest
becoming due on the date fixed for redemption shall be payable to the holders of
record on the relevant Record Date of the Notes being redeemed.
If fewer than all the Notes are to be redeemed, the Trustee
will select the Notes to be redeemed in principal amounts of $1,000 or multiples
thereof by lot or, in its discretion, on a pro rata basis. If any Note is to be
redeemed in part only, a new Note or Notes in principal amount equal to the
unredeemed principal portion thereof will be issued. If a portion of a Holders
Series 2-5/8% Notes is selected for partial redemption and such holder converts
a portion of such Notes, such converted portion shall be deemed to be taken from
the portion selected for redemption.
Subject to the terms of the Indenture, in the event that a
Change in Control shall occur, each Holder shall have the right, at the Holder's
option, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, all of such Holders Series 2-5/8% Notes, or
any portion of the principal amount thereof that is an integral multiple of
$1,000 (provided that no single Note may be repurchased in part unless the
portion of the principal amount of such Note to be outstanding after such
repurchase is equal to $1,000 or an integral multiple of $1,000), on the
Repurchase Date for cash at a purchase price equal to 100% of the principal
amount plus interest accrued and unpaid to, but excluding, the Repurchase Date.
If an Event of Default with respect to the Notes shall occur
and be continuing, the principal of all of the Notes may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee to enter into supplemental indentures to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying in
any manner the rights of the Holders of the Securities of each series under the
Indenture with the consent of the Holders of not less than a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected thereby on behalf of the Holders of all Securities of such series. The
Indenture also permits the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults and their consequences
with respect to such series under the Indenture. Any such consent or waiver by
the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange here for or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note or such
other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, rate and respective times and in the coin or currency
herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction
of certain conditions therein set forth, including the deposit of certain trust
funds in trust, the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and the obligations under, the Securities of
any series and to have satisfied all the obligations (with certain exceptions)
under the Indenture relating to the Securities of such series.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations at the office or agency of the Company in the Borough of
Manhattan, The City of New York, designated for such purpose and in the manner
and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Company in the Borough of Manhattan, The City of
New York designated for such purpose, a new Note or Notes of authorized
denominations for a like aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture.
No charge shall be made for any such transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless otherwise defined herein, all terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Note shall be construed in accordance with and governed
by the laws of the State of New York.
Unless the certificate of authentication hereon has been
manually executed by or on behalf of the Trustee under the Indenture, this Note
shall not be entitled to any benefits under the Indenture, or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, CLEAR CHANNEL COMMUNICATIONS, INC. has caused this Note
to be duly executed.
CLEAR CHANNEL COMMUNICATIONS,
INC.
by
----------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
Dated: March 30, 1998 by
---------------------------
Authorized Signatory
<PAGE>
------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, 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 of survivorship and not as tenants
in common
UNIF GIFT MIN ACT--...........Custodian.........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s),
and transfer(s) unto
_______________________________
: :
:_______________________________:
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE:
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE:
______________________________________________________________ the within Note
and all rights thereunder, hereby irrevocably constituting and appointing
- -----------------------------------------------------------------------
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
- -------------------------------------------------------------------------------
Dated: _______________________ ____________________________
Signature Guaranty
- ------------------------------------
Signature Signatures must be guaranteed by an
(Signature must correspond with "eligible guarantor institution"
the name as written upon the face meeting the requirements of the
of the within instrument in every Registrar, which requirements include
particular, without alteration or membership or participation in the
enlargement or any change whatever.) Security Transfer Agent Medallion
Program ("STAMP") or such other
"signature guarantee program" as may
be determined by the Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
- --------------------------------------------------------------------------------
<PAGE>
CONVERSION NOTICE
To: CLEAR CHANNEL COMMUNICATIONS, INC.
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of Clear Channel Communications, Inc. in accordance with the terms of the
Note, and directs that the shares issuable and deliverable upon such conversion,
together with any check in payment for fractional shares and any Notes
representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below.
If shares or any portion of this Note not converted are to be issued in the name
of a Person other than the undersigned, the undersigned will check the
appropriate box below and pay all transfer taxes payable with respect thereto.
Any amount required to be paid to the undersigned on account of interest
accompanies this Note.
Dated: -----------------------
-----------------------------
-----------------------------
Signature(s)
Signature(s) must be guaranteed by
an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion
program pursuant to Securities and
Exchange Commission Rule 17Ad-15 if
shares of Common Stock are to be
issued, or Notes to be delivered,
other than to and in the name of the
registered Holder.
--------------------------------
Signature Guarantee
<PAGE>
Fill in for registration of shares of Common Stock if to be issued, and Notes it
to be delivered, other than to and in the name of the registered Holder:
- ------------------------
(Name)
- ------------------------
(Street Address)
- ------------------------
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all):
$-----------------
---------------------------------
Social Security or Other Taxpayer
Identification Number
<PAGE>
OPTION TO ELECT REPURCHASE
UPON A CHANGE IN CONTROL
To: CLEAR CHANNEL COMMUNICATIONS, INC.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Clear Channel Communications, Inc. (the
Company") as to the occurrence of a Change in Control with respect to the
Company and requests and instructs the Company to repay the entire principal
amount of this Note, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the Note at
the repurchase price, together with accrued interest to, but excluding, such
date, to the registered Holder hereof.
Dated: _________________
___________________
___________________
Signature(s)
NOTICE: The above signatures of
the Holder(s) hereof must
correspond with the name as
written upon the face of the
Note in every particular without
alteration, enlargement or any
change whatever.
Principal amount to be
repurchased (if less than all):
$------------------------
----------------------------------
Social Security or Other Taxpayer
Identification Number
<PAGE>
ARTICLE VI
Original Issue of Series 2 5/8% Notes
SECTION 6.01. Series 2 5/8% Notes in the aggregate principal
amount equal to $500,000,000 ($575,000,000 if the option described in Section
2(b) of the Underwriting Agreement relating to the Series 2 5/8% Notes dated
March 25, 1998 between the Company and the Underwriters listed therein is
exercised) may, upon execution of this First Supplemental Indenture, be executed
by the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and make available for delivery said Series 2 5/8%
Notes to or upon a Company Order.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this
First Supplemental Indenture or in the form of Series 2 5/8% Note or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series 2 5/8% Note that are defined in the Indenture shall have the
several meanings respectively assigned to them thereby.
SECTION 7.02. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed. This First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this First Supplemental Indenture.
SECTION 7.04. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
CLEAR CHANNEL COMMUNICATIONS, INC.,
by_________________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee
by_________________________________
Name:
Title:
EXHIBIT 11 - COMPUTATION OF EARNINGS PER SHARE
In thousands of dollars, except per share data
Three months ended
March 31,
1998 1997
---- ----
Numerator:
Net income $ 5,579 $ 7,599
Effect of dilutive securities:
Eller put/call option agreement (1,060) --
--------- --------
Numerator for net income per
common share - diluted $ 4,519 $ 7,599
======== ========
Denominator:
Weighted average common shares 98,493 77,191
Effect of dilutive securities:
Employee stock options 2,134 1,001
Eller put/call option agreement 1,081 --
-------- ---------
Dilutive potential common shares 3,215 1,001
Denominator for net income
per common share - diluted 101,708 78,192
======== ========
Net income per common share:
Basic $ ..06 $ .10
======== ========
Diluted $ ..04 $ .10
======== ========
<PAGE>
EXHIBIT 12 - COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
3 months ended
March 31, Year Ended
----------------- ---------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------ ------ ----- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income
taxes 8,042 11,647 104,077 71,240 49,817 36,396 15,696
Dividends and other received from
nonconsolidated affiliates 0 0 4,624 10,430 1,432
-------- -------- ------- ------- -------- -------- --------
Total 8,042 11,647 108,701 81,670 51,249 36,396 15,696
Fixed Charges
Interest expense 25,701 11,046 75,076 30,080 20,752 7,669 5,390
Amortization of loan fees 424 177 1,451 506 1,004 82 5
Interest portion of rentals 1,480 136 6,120 424 361 262 188
Total fixed charges 27,605 11,359 82,647 31,010 22,117 8,013 5,583
Preferred stock dividends
Tax effect of preferred dividends 0 0 0 0 0 0 0
After tax preferred dividends 0 0 0 0 0 0 0
Total fixed charges and
preferred dividends 27,605 11,359 82,647 31,010 22,117 8,013 5,583
Total earnings available for
payment of fixed charges 35,647 23,006 191,348 112,680 73,366 44,409 21,279
===== ===== ===== ===== ===== ===== =====
Ratio of earnings to fixed
Charges 1.29 2.03 2.32 3.63 3.32 5.54 3.81
===== ===== ===== ===== ===== ===== =====
Rental fees and charges 18,503 1,702 76,500 5,299 4,510 3,273 2,344
Interest rate 8% 8% 8% 8% 8% 8% 8%
</TABLE>
<PAGE>
EXHIBIT 27 - FINANCIAL DATA SCHEDULE
FISCAL-YEAR-END DEC-31-1998
PERIOD-END MARCH-31-1998
CASH 25775087
SECURITIES 0
RECEIVABLES 132277397
ALLOWANCES 11844288
INVENTORY 0
CURRENT-ASSETS 173675852
PP&E 1004361666
DEPRECEATION 145461254
TOTAL-ASSETS 3599626655
CURRENT-LIABILITIES 70842622
BONDS 1110289145
PREFERRED-MANDATORY 0
PREFERRED 0
COMMON 10467782
OTHER-SE 2328102718
TOTAL-LIABILITY-AND-EQUITY 3599626655
SALES 0
TOTAL-REVENUES 203642392
CGS 0
TOTAL-COSTS 123774052
OTHER-EXPENSES 3115221
LOSS-PROVISION 0
INTEREST-EXPENSE 25701262
INCOME-PRETAX 8041449
INCOME-TAX 4259126
INCOME-CONTINUING 5578706
DISCONTINUED 0
EXTRAORDINARY 0
CHANGES 0
NET-INCOME 5578706
EPS-BASIC .06
EPS-DILUTED .04
