AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
This Amendment No. 1 (the “Amendment”), dated as of April 18, 2007, to the Agreement and Plan
of Merger, dated as of November 16, 2006, by and among BT Triple Crown Merger Co., Inc., a Delaware
corporation (“Mergerco”), B Triple Crown Xxxxx, LLC, a Delaware limited liability company, T Triple
Crown Xxxxx, LLC, a Delaware limited liability company (together with B Triple Crown Xxxxx, LLC,
the “Parents”), and Clear Channel Communications, Inc., a Texas corporation (the “Company”).
RECITALS
WHEREAS, Section 8.03 of the Agreement permits the parties, by action by or on behalf of their
respective board of directors, to amend the Agreement by an instrument in writing signed on behalf
of each of parties; and
WHEREAS, the parties hereto desire to amend the Agreement as provided herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties
and covenants and subject to the conditions herein contained and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
Section 1.01. Definitions; References. Unless otherwise specifically defined herein, each
capitalized term used but not defined herein shall have the meaning assigned to such term in the
Agreement. Each reference to “hereof,” “hereunder,” “hereby,” and “this Agreement” shall, from and
after the date of this Amendment, refer to the Agreement, as amended by this Amendment. Each
reference herein to “the date of this Amendment” shall refer to the date set forth above and each
reference to the “date of this Agreement” or similar references shall refer to November 16, 2006.
ARTICLE 2
AMENDMENT TO AGREEMENT
AMENDMENT TO AGREEMENT
Section 2.01. Amendment to Section 3.01(b) of the Agreement. Section 3.01(b) of the Agreement is
amended by deleting “$37.60” and replacing such amount with “$39.00.” All references in the
Agreement to the “Merger Consideration” shall refer to “$39.00 plus the Additional Per Share
Consideration, if any, in cash, without interest.
Section 2.02. Additional Representations and Warranties of the Company. The Company hereby
represents and warrants to Mergerco and the Parents as follows:
(a) Authority Relative to Amendment. The Company has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its obligations hereunder. The
execution and delivery of this Amendment by the Company have been duly and validly authorized by
all necessary corporate action, and no other corporate proceedings on the part of the Company are
necessary to authorize the execution and delivery of this Amendment. This Amendment has been duly
and validly executed and delivered by the Company and, assuming the due authorization, execution
and delivery by Mergerco and the Parents, this Amendment constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer,
1
reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditors’
rights, and to general equitable principles).
(b) Additional Representations. Each of the representations and warranties contained in
Sections 4.04(b)(ii) and (iii) is true and accurate as if made anew as of the date of this
Amendment.
(c) Opinion of Financial Advisors. The Board of Directors of the Company has received an
oral opinion of Xxxxxxx Sachs & Co. to the effect that, after giving effect to this Amendment, as
of the date of such opinion and based upon and subject to the limitations, qualifications and
assumptions set forth therein, the Merger Consideration as provided in Section 3.01(b) of
the Agreement payable to each holder of outstanding shares of Company Common Stock (other than
shares cancelled pursuant to Section 3.01(b) of the Agreement, shares held by affiliates of
the Company, Dissenting Shares and the Rollover Shares), in the aggregate, is fair to the holders
of the Company Common Stock from a financial point of view. The Company shall deliver an executed
copy of the written opinion received from Xxxxxxx Xxxxx & Co. to the Parents promptly upon receipt
thereof.
Section 2.03 Additional Representations and Warranties of Parents and Mergerco. The Parents
and Mergerco hereby jointly and severally represent and warrant to the Company as follows:
(a) Authority Relative to Amendment. The Parents and Mergerco have all necessary power
and authority to execute and deliver this Amendment, to perform their respective obligations
hereunder. The execution and delivery of this Amendment by the Parents and Mergerco have been
duly and validly authorized by all necessary limited liability company action on the part of the
Parents and all corporate action of Mergerco, and no other corporate proceedings on the part of
the Parents or Mergerco are necessary to authorize the execution and delivery of this Amendment.
This Amendment has been duly and validly executed and delivered by the Parents and Mergerco
and, assuming the due authorization, execution and delivery by the Company, this Amendment
constitutes a legal, valid and binding obligation of the Parents and Mergerco, enforceable
against the Parents and Mergerco in accordance with its terms (except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting creditor’s rights, and to general
equitable principles).
Section 2.04. Amendment to Section 5.07 of the Agreement. Section 5.07 (a) is amended and
restated in its entirety to read as follows:
“(a) Parents have provided to the Company true, complete and correct copies, as
of the date of this Amendment, of the executed commitment letters from the parties
identified in a separate letter (the “Amendment Disclosure Letter”) delivered to the
Company, which commitment letters are dated as of the date of this Amendment (as the
same may be amended, modified, supplemented, restated, superseded and replaced in
accordance with Section 6.13(a), collectively, the “Debt Commitment Letters”),
pursuant to which, and subject to the terms and conditions thereof, the lender
parties thereto have committed to lend the amounts set forth therein for the purpose
of funding the transactions contemplated by this Agreement (the “Debt Financing”).
Parents have provided to the Company true, complete and correct copies, as of the
date of this Amendment, of executed commitment letters (collectively, the “Equity
Commitment Letters” and together with the Debt Commitment Letters, the “Financing
Commitments”) pursuant to which the investors listed in the Amendment Disclosure
Letter (the “Investors”) have committed to invest the cash amounts set forth therein
subject to the terms therein (the “Equity Financing” and together with the Debt
Financing, the “Financing”).”
Each of the representations and warranties contained in Section 5.07(b) is true and accurate as if
made anew as of the date of this Amendment.
Section 2.05. Amendment to Section 6.01 of the Agreement. Section 6.01(f) (iv) (z) is amended
by deleting the words, “date hereof” and replacing them with the words, “date of the Amendment.”
2
Section 2.06. Amendment to Section 6.03 of the Agreement. The following paragraph shall be
added to the Agreement as
Section 6.03(e):
“(e) Within five (5) business days following the date of this Amendment the
Company shall prepare and shall cause to be filed with the SEC a proxy supplement in
accordance with the provisions of Section 6.03(a) relating to the meeting of
the Company’s shareholders to be held to consider the adoption and approval of this
Agreement and the Merger. The Company shall include the text of this Agreement and
the recommendation of the Board of Directors of the Company that the Company’s
shareholders approve and adopt this Agreement. If required, the Company shall use
its reasonable best efforts to have the Proxy Statement cleared by the SEC, if
required after the date of this Amendment, as soon as reasonably practicable after
it is filed with the SEC. If the SEC requires the Company to re-mail the Proxy
Statement to the holders of Company Common Stock as of the record date established
for the Shareholders’ Meeting, then within five (5) days after the Proxy supplement
prepared in accordance with Section 6.03(b) has been cleared by the SEC, the
Company shall mail the Proxy Statement to the holders of Company Common Stock as of
the record date established for the Shareholders’ Meeting.
Section 2.07. Amendments to Section 6.04 of the Agreement. Subject to any actions taken by
the SEC, as contemplated by Section 2.05 above, the Shareholders Meeting referred to in Section
6.04 of the Agreement shall be postponed, convened and held on May 8, 2007.
Section 2.08. Amendment to Section 8.02 of the Agreement. Section 8.02(c) of the Agreement
shall be renumbered as Section 8.02(d) and all cross references to such Section shall be renumbered
accordingly. The following paragraph shall be added to the Agreement as Section 8.02(c):
“(c) If this Agreement is terminated pursuant to Section 8.01(c),
Section 8.01(d) or Section 8.01(g) and within twelve (12) months
after such termination of this Agreement (i) the Company or any of its subsidiaries
consummates, (ii) the Company or any of its subsidiaries enters into a definitive
agreement with respect to, or (iii) one or more Contacted Parties or a Qualified
Group commences a tender offer with respect to, and, in the case of each of clause
(ii) and (iii) above, subsequently consummates (whether during or after such twelve
(12) month period), any Contacted Party Proposal then the Company shall pay to the
Parents a fee of $200,000,000 in cash; provided, however, if this
Agreement is terminated pursuant to Section 8.01(d) or Section
8.01(g), no such fee shall be payable under this Section 8.02(c) if a Company
Termination Fee is payable pursuant to Section 8.02(a) hereof. In the event
the fee provided for in this Section 8.02(c) is required to be paid, such
payment will be made by wire transfer of immediately available funds to an account
designated by Parents promptly following the closing of the transactions
contemplated by such Contacted Party Proposal. For purposes of clarification, the
fee payable pursuant to this Section 8.02(c) is in addition to any
reimbursement of expenses provided for in Section 8.02(a) above.”
Section 2.09. Amendment to Appendix A.
(a) The definition of “Additional Per Share Merger Consideration” is amended by deleting
“$37.60” and replacing such amount with “$39.00.”
(b) The following definition of “Contacted Parties” is added to Appendix A immediately
following the definition of “Confidentiality Agreement”:
“Contacted Parties” shall mean and include (i) each Person that is referred to
in the Proxy Statement as having been contacted during the auction process or that
were contacted in accordance with Section 6.07(a) of the Agreement during the period
commencing on November 16, 2006 and ending on December 7, 2006 and (ii) any
Affiliate of the parties referred to in clause (i). Within two business days of the
date of this Amendment, the Company will provide to Parents a true and accurate list
of the Contacted Parties referred to in clause (i).”
3
(c) The following definition of “Contacted Parties Proposal” is added to Appendix A
immediately following the definition of “Contacted Parties”:
“Contacted Parties Proposal” shall mean: (i) any transaction in which one or
more of the Contacted Parties, either acting alone or as a “group” (as defined in
Section 13(d) of the Exchange Act) acting in concert, which “group” does not include
any of the Parents, Mergerco or their respective Affiliates (a “Qualified Group”),
directly or indirectly acquires or purchases, in any single transaction or series of
related transactions, more than 50% of the fair market value of the assets, issued
and outstanding Company Common Stock or other ownership interests of the Company and
its consolidated subsidiaries, taken as a whole, or to which 50% or more of the
Company’s and its subsidiaries net revenues or earnings on a consolidated basis are
attributable (ii) any tender offer or exchange offer (including through the filing
with the SEC of a Schedule TO), as defined pursuant to the Exchange Act, that if
consumated would result in one or more of the Contacted Parties or a Qualified Group
acting in concert acquiring assets, securities or businesses in the minimum
percentage described in clause (i) above or (iii) any merger, consolidation,
business combination, recapitalization, issuance of or amendment to the terms of
outstanding stock or other securities, liquidation, dissolution or other similar
transaction involving the Company as a result of which any Contacted Party or
Qualified Group acting in concert would acquire assets, securities or businesses in
the minimum percentage described in clause (i) above. For clarification purposes, a
spin-off, recapitalization, stock repurchase program or other transaction effected
by the Company or any of its subsidiaries will not constitute a Contacted Parties
Proposal unless, as a result of such transaction, a Contacted Party or Qualified
Group acting in concert acquires the assets, securities or business described in
clause (i) above.
ARTICLE 3
MISCELLANEOUS
MISCELLANEOUS
Section 3.01. No Further Amendment. Except as expressly amended hereby, the Agreement is in all
respects ratified and confirmed and all of the terms and conditions and provisions thereof shall
remain in full force and effect. This Amendment is limited precisely as written and shall not be
deemed to be an amendment to any other term or condition of the Agreement or any of the documents
referred to therein.
Section 3.02. Effect of Amendment. This Amendment shall form a part of the Agreement for all
purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of
this Amendment by the parties hereto, any reference to “this Agreement”, “hereof”, “herein”,
“hereunder” and words or expressions of similar import shall be deemed a reference to the Agreement
as amended hereby.
Section 3.03. Governing Law. This Amendment, and all claims or cause of action (whether in
contract or tort) that may be based upon, arise out of or relate to this Amendment shall be
governed by the internal laws of the State of New York, without giving effect to any choice or
conflict of laws provision or rule.
Section 3.04. Counterparts. This Amendment may be executed and delivered (including by facsimile
transmission) in two (2) or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and same agreement.
[Remainder of This Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, Mergerco, the Parents, and the Company have caused this Amendment
to be executed as of the date first written above by their respective officers thereunto duly
authorized.
| MERGERCO: | ||||
| BT TRIPLE CROWN MERGER CO., INC. | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Co-President | |||
| PARENTS: | ||||
| B TRIPLE CROWN XXXXX, LLC | ||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxxx | |||
| Title: | Managing Director | |||
| T TRIPLE CROWN XXXXX, LLC | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Co-President | |||
| COMPANY: | ||||
| CLEAR CHANNEL COMMUNICATIONS, INC. | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Chief Executive Officer | |||
