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EXHIBIT 99(b)
FIRST AMENDMENT TO
STOCKHOLDERS AGREEMENT
This Amendment (this "Amendment"), dated as of July 19, 2000, by and
among Xxxxx Advertising Company, a Delaware corporation (including its
successors, the "Company"), AMFM Operating Inc. (f/k/a Chancellor Media
Corporation of Los Angeles), a Delaware corporation ("AMFM Operating"), AMFM
Holdings Inc. (f/k/a Chancellor Mezzanine Holdings Corporation), a Delaware
corporation ("AMFM Holdings"), Clear Channel Communications, Inc., a Texas
corporation ("Clear Channel"), and The Xxxxxx Family Limited Partnership, a
Louisiana limited partnership ("RFLP"), constitutes an amendment to the
Stockholders Agreement (as defined below).
WITNESSETH:
WHEREAS, the Company, AMFM Operating, AMFM Holdings and RFLP are
parties to that certain Stockholders Agreement, dated as of September 15, 1999
(the "Stockholders Agreement");
WHEREAS, AMFM Holdings has transferred to AMFM Operating all of the
Common Stock of the Company held by AMFM Holdings;
WHEREAS, AMFM, Inc., a Delaware corporation ("AMFM"), is the indirect
parent company of AMFM Operating;
WHEREAS, pursuant to a certain Agreement and Plan of Merger dated
October 2, 1999 (the "Merger Agreement"), by and among Clear Channel, CCU Merger
Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Clear Channel
("Merger Sub"), and AMFM, Merger Sub will be merged with and into AMFM (the
"Merger") and AMFM Operating will become a wholly-owned indirect subsidiary of
Clear Channel;
WHEREAS, the Company, AMFM Operating, AMFM Holdings, Clear Channel and
RFLP desire to amend the Stockholders Agreement in connection with and upon the
consummation of the Merger, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and in the Stockholders Agreement, and for other good, valuable
and binding consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. AMENDMENTS. Upon the consummation of the Merger, the Stockholders
Agreement shall be amended as follows:
(A) (i) The following new defined terms shall be added to Section 1.1
of the Stockholders Agreement:
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the
State of
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Texas and/or the State of Louisiana generally are authorized or
required by law or other government actions to close.
"REGISTRATION RIGHTS AGREEMENT" means the Amended and Restated
Registration Rights Agreement dated as of July 19, 2000 by and among
the Company, AMFM Operating, AMFM Holdings and Clear Channel.
"SELLING AMFM HOLDERS" means AMFM Holders who sell or propose to sell
Common Stock or Common Stock Equivalents pursuant to a Third-Party
Sale.
"THIRD-PARTY SALE" has the meaning ascribed thereto in Section 3.1(a).
"UNDERWRITTEN OFFERING" means an offering (other than a block sale) in
which all or part of the Registrable Securities (as defined in the
Registration Rights Agreement) or securities convertible into,
exchangeable for, or exercisable for Registrable Securities are sold to
an underwriter for reoffering pursuant to the Shelf Registration
Statement (as defined in the Registration Rights Agreement).
"VOTING STOCK" means any Common Stock or Common Stock Equivalents
entitled ordinarily, and in the absence of contingencies, to vote for
the election of directors of the Company.
(ii) The following defined term shall be substituted in lieu
of the existing defined term "Chancellor Holders" in Section 1.1 of the
Stockholders Agreement (and wherever such term is elsewhere used in the
Stockholders Agreement):
"AMFM HOLDERS" means, collectively, AMFM Operating and any Affiliates
of AMFM Operating who then are parties to this Stockholders Agreement
and who own any Common Stock or Common Stock Equivalents or any
interest therein.
(iii) The following defined term shall be substituted in lieu
of the existing defined term "Common Stock Equivalent" in Section 1.1 of the
Stockholders Agreement (and wherever such term is elsewhere used in the
Stockholders Agreement):
"COMMON STOCK EQUIVALENT" means, without duplication with any other
Common Stock or Common Stock Equivalents, any security which is
convertible into, exercisable for or exchangeable for, directly or
indirectly, Class A Common Stock of the Company, whether at the time of
issuance or upon the passage of time or the occurrence of some future
event.
(B) The text of the following Sections of the Stockholders Agreement
shall be deleted in their entirety and replaced by the words "Intentionally
Omitted":
Section 2.1.1 Board Representation.
Section 2.1.2 Vacancies.
Section 2.1.3 Committee Representation.
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Section 2.1.4 Costs and Expenses.
Section 4.2 Other Significant Transactions.
Section 7.1 Financial Statements.
(C) Article 3 of the Stockholders Agreement shall be deleted in its
entirety and the following provisions shall be substituted therefor:
"Article 3
RIGHT TO PARTICIPATE IN CERTAIN DISPOSITIONS
BY AMFM HOLDERS; LOCK-UP
SECTION 3.1 RIGHT TO PARTICIPATE IN CERTAIN DISPOSITIONS BY
AMFM HOLDERS.
(a) Subject to the provisions of this Section 3.1, in the
event that any one or more of the AMFM Holders proposes to offer or
sell any Common Stock or Common Stock Equivalents for an aggregate
offering price of $200 million or more to any Person who is not an
Affiliate of the AMFM Holders in a single offering or a series of
related offerings (if at the time of the first of such series of
related offerings the Selling AMFM Holders know that there will be a
series of related offerings to a single purchaser or affiliated group
of purchasers having an aggregate offering price of $200 million or
more) (a "Third-Party Sale"), then such Selling AMFM Holders shall give
notice in writing to such effect (a "Co-Sale Notice") to the Company
not later than (i) three (3) Business Days before the date of a
proposed offer or sale other than an Underwritten Offering or (ii) ten
(10) Business Days before the date of a proposed Underwritten Offering.
The Co-Sale Notice shall state the number of shares of Common Stock or
Common Stock Equivalents that the Selling AMFM Holders intend to sell,
the purchase price per share (or the method of calculating such price),
and any other material terms and conditions of the proposed offer and
sale. Upon receipt of the Co-Sale Notice, the Company shall have the
right (the "Co-Sale Right"), exercisable by written notice (an
"Election Notice") to the Selling AMFM Holders given within three (3)
Business Days after receipt of the Co-Sale Notice, to elect to include
in such Third-Party Sale, additional shares of Common Stock for sale
for the Company's account (but not for the account of any other
Person), at the price per share (or the method of calculating such
price) and on the same terms and conditions specified in the Co-Sale
Notice (or at such other price or on such other terms as the Selling
AMFM Holders and the Company may agree). Any such election by the
Company shall be irrevocable; provided, however, that if the price per
share is not specified in the Co-Sale Notice, then the Company shall
have the right to revoke the Election Notice within one (1) Business
Day following the determination of the price (except that the Company
shall not have a right to revoke the Election Notice if an estimated
price per share is specified in the Co-Sale Notice and the actual price
per share is not more than five-percent (5%) greater or more than five
percent (5%) less than the estimated price per share specified in the
Co-Sale
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Notice). Failure of the Company to give an Election Notice
within such three (3) Business Day period shall be deemed an election
by the Company not to participate in the proposed Third-Party Sale.
(b) The number of shares of Common Stock that the Company
shall be entitled to sell in a Third-Party Sale shall be determined
solely by the Company and shall be set forth in the Election Notice;
provided, however, that if in the good faith view of the underwriter,
placement agent, broker-dealer or other similar person engaged by the
Selling AMFM Holders in connection with such offering (or, if no such
person has been engaged, of the Board of Directors of the Selling AMFM
Holders), the inclusion of all or a part of such additional shares of
Common Stock or Common Stock Equivalents in the Third-Party Sale would
be likely to have a material adverse effect on the price, timing or
distribution of the offering and sale of the Common Stock or Common
Stock Equivalents then contemplated by the Selling AMFM Holders, or if
the purchaser is not willing to purchase all or a part of such
additional shares of Common Stock or Common Stock Equivalents from the
Company, then the number of additional shares of Common Stock or Common
Stock Equivalents that shall be included in the Third-Party Sale shall
be reduced to the number (if any) of such shares that can, in the good
faith view of the underwriter, placement agent, broker-dealer or other
similar person engaged by the Selling AMFM Holders in connection with
such offering (or, if no such person has been engaged, of the Board of
Directors of the Selling AMFM Holders), be sold in such Third-Party
Sale without so materially adversely affecting such offering and sale,
or in the case that the purchaser is not willing to purchase all or a
part of such additional shares of Common Stock or Common Stock
Equivalents from the Company, reduced to the amount that the purchaser,
in its sole discretion, is willing to purchase. Further, if the
purchaser or any other Person is granted an option to purchase
additional securities of the Company in connection with such
Third-Party Sale, then the Company shall be entitled to offer
additional shares of Common Stock in full satisfaction of such option,
such election to be made in the Company's Election Notice described
above.
(c) The Company shall not have any Co-Sale Right involving a
block trade, other than as set forth in this Section 3.1(c). In the
event that the Selling AMFM Holders engage in a transaction involving a
block trade of Common Stock or Common Stock Equivalents, the Selling
AMFM Holders will use their reasonable best efforts to give the Company
advance notice of such block trade (a "Block Trade Notice") and a
Co-Sale Right in connection with such block trade, so long as: (i) the
Block Trade Notice will not have a material adverse effect on the
Selling AMFM Holders' ability to consummate the block trade, and (ii)
there is sufficient capacity in the block trade to enable the Company
to exercise its Co-Sale Right.
(d) The Company shall not have any Co-Sale Right pursuant to
this Section 3.1 in connection with any sale or disposition of Common
Stock or Common Stock Equivalents by the Selling AMFM Holders (or their
successors or
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assigns) in a transaction pursuant to Rule 144 under the Securities Act
to which the provisions of paragraphs (e) and (f) of Rule 144 are
applied.
(e) Upon the Company's election to participate in a
Third-Party Sale pursuant to this Section 3.1, and subject to Section
3.1(b), the closing of such sale shall be held at the time and place
designated by the Selling AMFM Holders and the proposed purchaser. At
the closing of such sale, the Company shall deliver to the purchaser,
against payment of the purchase price, the shares of Common Stock or
Common Stock Equivalents to be issued and sold by the Company to the
purchaser, free and clear of all liens, charges, pledges and other
encumbrances.
SECTION 3.2 LOCK-UP.
(a) In connection with an Underwritten Offering (including any
block trade) by the AMFM Holders of any Common Stock or Common Stock
Equivalents having an aggregate offering price of $200 million or more,
if the managing underwriters of such offering reasonably request, the
Company shall enter into a lock-up or comparable agreement pursuant to
which the Company will not sell or otherwise transfer any shares of
Common Stock or Common Stock Equivalents for a fixed period of time
(the "Lock-Up Period"). The AMFM Holders and the Company shall use
reasonable best efforts to cause the underwriters to agree to a Lock-Up
Period not to exceed sixty (60) days, but the Company agrees to accept
a longer Lock-Up Period to the extent reasonably required by the
underwriters, not to exceed ninety (90) days.
(b) In connection with an Underwritten Offering by the Company
of any Common Stock or Common Stock Equivalents having an aggregate
offering price of $200 million or more, if the managing underwriters of
such offering reasonably request, the AMFM Holders shall enter into a
lock-up or comparable agreement pursuant to which the AMFM Holders will
not sell or otherwise transfer any shares of Common Stock or Common
Stock Equivalents during the Lock-Up Period. The Company and the AMFM
Holders shall use reasonable best efforts to cause the underwriters to
agree to a Lock-Up Period not to exceed sixty (60) days, but the AMFM
Holders agree to accept a longer Lock-Up Period to the extent
reasonably required by the underwriters, not to exceed ninety (90)
days; provided, however, that the AMFM Holders (and their successors
and assigns) shall not be subject to any lock-up or comparable
agreement pursuant to this Section 3.2(b): (i) at any time during the
60-day period commencing on the Effectiveness Date (as defined in the
Registration Rights Agreement) or (ii) at any time during the 90-day
period preceding December 31, 2002. The foregoing shall not prohibit
the transfer of any shares of Common Stock or Common Stock Equivalents
during a Lock-Up Period (x) to any Affiliate of the AMFM Holders (so
long as such Affiliate is bound by the provisions of this Stockholders
Agreement, including the lock-up agreement contemplated by this Section
3.2(b)) or (y) pursuant to a bona fide pledge of such shares to a
lender or in connection with a foreclosure (or similar proceeding or
remedy) effected with respect to any
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such pledge (so long as such lender agrees to be bound by the lock-up
agreement contemplated by this Section 3.2(b)).
SECTION 3.3 DUE DILIGENCE. In connection with any offer or
sale by the AMFM Holders of Common Stock or Common Stock Equivalents,
if the AMFM Holders so request, the Company shall give the AMFM
Holders, a single representative of the proposed purchasers of Common
Stock or Common Stock Equivalents, and their respective counsel,
accountants, bankers and advisors, reasonable and customary access to
the Company's books, records and properties and such opportunities to
discuss the business and affairs of the Company with its officers and
the independent public accounts who have certified the Company's
financial statements; provided, however, that (i) the AMFM Holders and
any such proposed purchasers shall have entered into a confidentiality
agreement reasonably acceptable to the Company which shall include,
without limitation, an agreement not to use or disclose to any other
person, including any competitor of the Company, any non-public
information disclosed as a result of such investigation, and (ii) the
AMFM Holders, the representative of the proposed purchasers and their
respective counsel, accountants, bankers and advisors shall use their
reasonable best efforts to minimize the disruption to the Company's
business and shall to the extent practicable coordinate any such
investigation of the Company's books, records and properties and any
such discussions with the Company's officers and accountants so that
all such investigations and discussions occur at the same time."
(D) Section 4.1 of the Stockholders Agreement shall be deleted in its
entirety and the following provisions shall be substituted therefor:
"SECTION 4.1 TRANSACTIONS WITH AFFILIATES. The Company will
not, nor will it permit any of its Subsidiaries to, directly or
indirectly, enter into or engage in any transaction with or for the
benefit of any of its Affiliates (other than transactions between the
Company and a wholly owned Subsidiary of the Company or among wholly
owned Subsidiaries of the Company), except for any such transaction
which is on terms no less favorable than those that might reasonably
have been obtained in a comparable transaction on an arm's-length basis
from a person that is not an Affiliate. With respect to the requirement
set forth in the immediately preceding sentence, for a transaction or
series of related transactions involving a value of $1,000,000 or more,
such determination will be made in good faith by a majority of the
members of the Company's Board of Directors and a majority of the
disinterested members of the Company's Board of Directors, and for a
transaction or series of transactions involving a value of $5,000,000
or more, the Company's Board of Directors must receive an opinion from
a nationally recognized investment banking firm that such transaction
is (or that such series of transactions are) fair, from a financial
point of view, to the Company or such Subsidiary, as applicable.
Notwithstanding the foregoing, the restrictions set forth in this
Section 4.1 shall not apply to reasonable and customary directors'
fees, reasonable and customary directors' or officers'
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indemnification arrangements, or reasonable and customary compensatory
arrangements with officers of the Company."
(E) Section 7.3 of the Stockholders Agreement shall be deleted in its
entirety and the following provisions shall be substituted therefor:
"SECTION 7.3.1 VOTING OF AMFM HOLDERS. The AMFM Holders shall
take such action as may be required so that all shares of Voting Stock
beneficially owned by them shall be present for quorum purposes, in
person or represented by proxy, at any regular or special meeting of
stockholders of the Company, and shall vote such shares of Voting Stock
at any such meeting of stockholders or in any written consent executed
in lieu of such a meeting of stockholders in the same proportion as the
vote of all holders of Voting Stock not held by the AMFM Holders that
are present, in person or by proxy, at such meeting and voting with
respect to any matter. The AMFM Holders hereby grant the Company an
irrevocable proxy to vote the shares of Voting Stock beneficially owned
by them in accordance with the provision of this Section 7.3.1. The
provisions of this Section 7.3.1 shall have no further force or effect
with respect to any shares of Voting Stock following the disposition of
such shares to any Person that is not an Affiliate of the AMFM Holders.
"SECTION 7.3.2 CERTAIN RESTRICTED ACTIONS. Without the consent
of the Company's Board of Directors, neither the AMFM Holders nor any
of their respective Affiliates shall:
(a) make, or in any way participate in, any "solicitation" of
"proxies", or become a "participant" in any "election contest" (as such
terms are defined in Rule 14a-1 of Regulation 14A promulgated by the
Commission pursuant to Section 14 of the Exchange Act, disregarding
clause (iv) of Rule 14a-1(l)(2) and including any exempt solicitation
pursuant to Rule 14a-2(b)(1)) relating to Voting Stock; call, or in any
way participate in a call for, any special meeting of the Company's
stockholders; request, or take any action to obtain or retain any list
of holders of any of the Company's securities; execute any written
consent in lieu of a meeting of stockholders for the purpose of
acquiring control of the Company; initiate or propose any stockholder
proposal or participate in the making of, or solicit stockholders for
the approval of, or seek to advise or influence any other person (who,
together with the AMFM Holders or their Affiliates, would constitute a
group for purposes of Section 13(d)(3) of the Exchange Act) with
respect to voting, on one or more stockholder proposals relating to the
Company;
(b) deposit any Voting Stock in a voting trust or subject any
Voting Stock to any voting agreement or arrangements (other than as
provided herein);
(c) form, join or in any way participate in a group with
respect to any Voting Stock (or any securities the ownership of which
would cause the owner thereof to Beneficially Own any Voting Stock); or
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(d) otherwise act to control the Company or the Company's
management, board of directors, policies or affairs including, without
limitation: (i) making any offer or proposal to acquire any securities
or assets of the Company or any of its affiliates or soliciting or
proposing to effect or negotiate any form of business combination, any
tender offer or exchange offer for any debt or equity securities of the
Company, or any restructuring, recapitalization or other extraordinary
transaction involving, or any change in control of, the Company, its
affiliates or any of their respective securities or assets or (ii)
seeking board representation or the removal of any directors or
management or a change in the composition or size of the Company's
Board of Directors.
(e) disclose any intention to do any of the foregoing or seek
to modify any provision of this Section 7.3.2.
(f) Notices to the parties shall be sent to the addresses
listed on the signature pages hereof.
2. NO OTHER CHANGES. Except as specifically set forth herein, the
Stockholders Agreement shall remain unmodified and in full force and effect in
accordance with its terms.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to principles
of conflict of laws.
4. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon the
parties hereto, and their respective successors and permitted assigns.
5. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same agreement.
6. SEVERABILITY. In case any provision in this Amendment shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in affected or impaired
thereby.
7. ENTIRE AGREEMENT. This Amendment, together with the Stockholders
Agreement, as amended hereby, contains the entire agreement among the parties
with respect to the subject matter hereof and, upon the effectiveness of this
Amendment in accordance with Section 9, shall supersede all prior agreements and
understandings with respect to such subject matter, including, without
limitation, the letter agreement dated as of June 1, 2000 among the Company,
AMFM and Clear Channel.
8. EXECUTION; AMENDMENTS. This Amendment is executed by the parties
pursuant to the provisions of Section 7.8.2 of the Stockholders Agreement. Any
provision of this Amendment may be amended or waived if, but only if such
amendment or waiver is in writing
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and is signed by the Company, the Holders holding at least a majority of the
Fully-Diluted Common Stock held by all Holders and the Majority AMFM Holders.
9. EFFECTIVE DATE; CONSUMMATION OF MERGER. The terms and conditions of
this Amendment shall become effective and enforceable only upon the consummation
of the Merger. In the event that the Merger has not been consummated on or
before March 31, 2001, or if the Merger Agreement is terminated prior to March
31, 2001 then, unless the parties hereto mutually agree to an extension hereof,
this Amendment shall be null and void and the Original Agreement shall continue
in accordance with its terms as if this Amendment had not been executed and
delivered.
10. GUARANTY BY CLEAR CHANNEL. Clear Channel agrees to guaranty the
performance of all obligations of the AMFM Holders hereunder.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties as of the date first set forth above.
XXXXX ADVERTISING COMPANY
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
With copies to:
Xxxxxx Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
AMFM OPERATING INC.
(f/k/a CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES)
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
000 Xxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
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Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
AMFM HOLDINGS INC.
(f/k/a CHANCELLOR MEZZANINE HOLDINGS
CORPORATION)
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
000 Xxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
CLEAR CHANNEL COMMUNICATIONS, INC.
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
000 Xxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
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THE XXXXXX FAMILY LIMITED PARTNERSHIP
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
c/o Lamar Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
With copies to:
Xxxxxx Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
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