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EXHIBIT 2.60
FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER,
dated as of June 30, 1999 (the "First Amendment"), is being entered into by and
among CHANCELLOR MEDIA CORPORATION, a Delaware corporation ("Chancellor"),
CAPSTAR BROADCASTING CORPORATION, a Delaware corporation ("Capstar"), and CMC
MERGER SUB, INC., a Delaware corporation and wholly-owned subsidiary of
Chancellor ("Merger Sub").
RECITALS
WHEREAS, Chancellor, Capstar and Merger Sub are parties to that certain
Amended and Restated Agreement and Plan of Merger, dated as of April 29, 1999
(the "Merger Agreement");
WHEREAS, Chancellor, Capstar and Merger Sub desire by this First Amendment
to amend certain provisions of the Merger Agreement; and
WHEREAS, the respective Boards of Directors of Chancellor, Capstar and
Merger Sub have approved this First Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this First Amendment and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendments. Section 7.3(e) of the Merger Agreement is hereby
amended and restated in its entirety to read as follows:
"(e) Financial Services Agreement. Capstar and certain of its
subsidiaries and Xxxxx Muse shall have entered into an amendment to each
of the Monitoring and Oversight Agreement (the "Capstar M&O Agreement")
between Xxxxx Muse and Capstar, the Monitoring and Oversight Agreement
(the "Partners M&O Agreement") between Xxxxx Muse and Capstar Partners,
the Financial Advisory Agreement (the "Capstar Financial Advisory
Agreement") between Xxxxx Muse and Capstar, and the Financial Advisory
Agreement (the "Partners Financial Advisory Agreement") between Xxxxx
Muse and Capstar Partners, that provide (i) the Partners M&O Agreement
will be terminated at the Effective Time with no further obligation of
any party thereto, (ii) the Partners Financial Advisory Agreement will
be terminated at the Effective Time with no further obligation of any
party thereto, and (iii) the Capstar M&O Agreement will be terminated at
the Effective Time and, in consideration therefor, Chancellor Media
shall xxxxx Xxxxx Muse an option (a "Xxxxx Muse Option") at the Closing
Date to purchase up to 634,517 shares of Chancellor Common Stock. The
Xxxxx Muse Option shall have an exercise price of $52.00 per share and
shall expire on the fifth anniversary of the Closing Date; provided,
that the Xxxxx Muse Option shall only become exercisable after the date
on which the average fair market value of a share of Chancellor Common
Stock, calculated on a daily basis, equals or exceeds $100.00 per share
for a period of 30 consecutive trading
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days during the period from (and including) the Closing Date through
(and including) the fifth anniversary of the Closing Date; provided
further that the Xxxxx Muse Option will not be subject to such
exercisability threshold following a change in control, and (iv) the
Capstar Financial Advisory Agreement will be terminated at the Effective
Time and in consideration therefor, Xxxxx Muse will receive a fee from
Capstar of $10 million in cash, payable at the Closing, and Chancellor
shall grant to Xxxxx Muse a Xxxxx Muse Option on the Closing Date to
purchase up to 335,099 shares of Chancellor Common Stock. Prior to the
Closing, Chancellor shall use its reasonable best efforts to enter into
a joinder to the Chancellor Stockholders Agreement with each proposed
holder of the Xxxxx Muse Options (or otherwise enter into a new
agreement with any such holder and the existing parties to the
Chancellor Stockholders Agreement) providing for rights of registration
under the Securities Act of all shares of Chancellor Common Stock
issuable upon exercise of the Xxxxx Muse Options on substantially
similar terms as are provided in the Chancellor Stockholders Agreement,
with such changes as are described in the supplement to the Chancellor
Disclosure Letter dated April 29, 1999."
2. Merger Agreement Otherwise Unchanged. Except as set forth in this
First Amendment, the Merger Agreement shall remain in full force and effect
in accordance with its terms. In the event of any conflict between the
provisions of this First Amendment and the Merger Agreement, the provisions
of this First Amendment shall control.
3. Rules of Construction; Governing Law. Capitalized terms used herein
but not otherwise defined shall have the meanings assigned to such terms in
the Merger Agreement. This First Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless
of the laws that may otherwise govern under applicable principles of
conflicts of laws thereof.
4. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument and shall be effective when one
or more counterparts have been signed by each of the parties and delivered
to the other parties.
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IN WITNESS WHEREOF, this First Amendment has been duly executed and delivered by
the duly authorized officers of Chancellor, Capstar and Merger Sub effective as
of the date first written above.
CHANCELLOR MEDIA CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
CAPSTAR BROADCASTING CORPORATION
By: /s/ R. XXXXXX XXXXX
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Name: R. Xxxxxx Xxxxx
Title: President and Chief Executive
Officer
CMC MERGER SUB, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Chairman
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