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EXHIBIT 10.22.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Stockholders Agreement") dated as of
November 26, 1996, is entered into by and among Capstar Broadcasting Partners,
Inc., a Delaware corporation (the "Company"), the securityholders listed on the
signature pages hereof (collectively, the "Holders"), and Hicks, Muse, Xxxx &
Xxxxx Incorporated, a Texas corporation ("HMTF").
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions.
"Accredited Investor" means an "Accredited Investor," as defined in
Regulation D, or any successor rule then in effect.
"Advice" shall have the meaning provided in Section 3.4 hereof.
"Affiliate, means, with respect to any Person, any Person who, directly
or indirectly, controls, is controlled by or is under common control with that
Person.
"Appraised Value" means, as to any Securities, the fair market value of
such Securities at the date of the Purchase Notice as determined by an
Independent Financial Expert selected by HMTF; provided, however, if a Holder
shall object to such determination within 10 days after being notified thereof
by HMTF, such Holder shall within such ten-day period select an Independent
Financial Expert to determine the fair market value of such Securities on
behalf of such Holder. In the event that the Independent Financial Experts
selected by each of HMTF and such Holder cannot agree on the fair market value
of such Securities, then the two Independent Financial Experts shall mutually
select a third Independent Financial Expert to determine the fair market value
of such Securities, and the value selected by such third firm shall be binding
on all the parties hereto. Each such Independent Financial Expert may use any
customary method of determining fair market value. The cost of the Independent
Financial Expert selected by HMTF shall be paid by HMTF, the cost of the
Independent Financial Expert, if any, selected by such Holder shall be paid by
such Holder, and the cost of the Independent Financial Expert, if any, mutually
selected by the two Independent Financial Experts appointed by each of HMTF and
such Holder shall be paid one-half by HMTF and one-half by such Holder.
"Authorization Date" shall have the meaning set forth in Section 5.3
hereof.
"Business Day" means a day that is not a Legal Holiday.
"Change of Control" means the first to occur of the following events:
(i) any sale, lease, exchange, or other transfer (in one transaction or series
of related transactions) of all or substantially all of the assets of the
Company to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group"), other than one or more members of the HMC
Group, (ii) a majority of the Board of Directors of the Company shall consist
of Persons who are not Continuing Directors; or (iii) the acquisition by any
Person or Group (other than one or more members of the HMC Group) of the power,
directly or indirectly,
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to vote or direct the voting of securities having more than 50% of the ordinary
voting power for the election of directors of the Company.
"Common Stock" means shares of the Common Stock, $0.01 par value per
share, of the Company, and any capital stock into which such Common Stock
thereafter may be changed.
"Common Stock Equivalents" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock of the Company and securities
convertible or exchangeable into Common Stock of the Company, whether at the
time of issuance or upon the passage of time or the occurrence of some future
event; provided, however, Common Stock Equivalents shall not include any
options awarded under the Company's 1996 Stock Option Plan or any shares of
Common Stock issued upon exercise of such options or any securities into which
such shares may be converted pursuant to such Plan.
"Company" shall have the meaning set forth in the introductory paragraph
hereof.
"Continuing Director" means, as of the date of determination, any Person
who (i) was a member of the Board of Directors of the Company on October 17,
1996, (ii) was nominated for election or elected to the Board of Directors of
the Company with the affirmative vote of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such nomination or
election, or (iii) is a member of the HMC Group.
"Co-Seller" shall have the meaning set forth in Section 4.1 hereof.
"Demand Registration" means a registration of Common Stock under the
Securities Act requested by a Person pursuant to a contractual right of such
Person to demand that the Company initiate such a registration.
"Election Notice" shall have the meaning set forth in Section 5.3
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Excluded Registration" means a registration under the Securities Act of
(i) a registration to effect a Qualified IPO if such registration only includes
equity securities to be issued by the Company and does not include any equity
securities for the account of any other securityholder of the Company, (ii)
securities registered on Form S-8 or any similar successor form and (iii)
securities registered to effect the acquisition of or combination with another
Person.
"Fully-Diluted Common Stock" means, at any time, the then outstanding
Common Stock of the Company plus (without duplication) all shares of Common
Stock issuable, whether at such time or upon the passage of time or the
occurrence of future events, upon the exercise, conversion, or exchange of all
then outstanding Common Stock Equivalents.
"HMC Group" means HMTF and its Affiliates (including Capstar L.P.) and
its and their respective officers, directors, and employees (and members of
their respective families and trusts for the primary benefit of such family
members).
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"HMC Group Designee" shall have the meaning set forth in Section 2.1.1
hereof.
"HMTF" shall have the meaning set forth in the introductory paragraph
hereof.
"Holders" shall have the meaning set forth in the introductory paragraph
hereof and shall include any direct or indirect transferee of any such Holder
who shall become a party to this Stockholders Agreement.
"Independent Financial Expert" means any investment bank which is
registered as a broker dealer under the Exchange Act and has aggregate net
capital of at least $50 million.
"Inspectors" shall have the meaning provided in Section 3.3 hereof.
"Legal Holiday" shall have the meaning provided in Section 9.2 hereof.
"Material Adverse Effect" shall have the meaning provided in Section
3.1.2 hereof.
"NASD" shall have the meaning provided in Section 3.3 hereof.
"Offered Securities" shall have the meaning provided in Section 5.3
hereof.
"Option" shall have the meaning provided in Section 6.2.1 hereof.
"Option Securities" shall have the meaning provided in Section 6.2.1
hereof.
"Option Transaction" shall have the meaning provided in Section 6.2.2
hereof.
"Participation Offer" shall have the meaning provided in Section 4.2
hereof.
"Person" or "person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Purchase Option" shall have the meaning provided in Section 6.1.
"Qualified IPO" means a firm commitment underwritten public offering of
Common Stock for cash pursuant to a registration statement under the Securities
Act where the aggregate proceeds to the Company (prior to deducting any
underwriters' discounts and commissions from such offering and any similar
prior public offerings exceed $10 million.
"Records" shall have the meaning provided in Section 3.3 hereof.
"Registrable Shares" means at any time the Common Stock of the Company
owned by the Holders owned on the date hereof or on the date that any Holder
executes this Stockholders Agreement; provided, however, that Registrable
Shares shall not include any shares (i) the sale of which has been registered
pursuant to the Securities Act and which shares have been sold pursuant to such
registration, (ii) which have been sold to the public pursuant to Rule 144 of
the SEC under the Securities Act, or (iii) issued upon the exercise of any
options awarded under the Company's 1996 Stock Option Plan.
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"Registration Expenses" shall have the meaning provided in Section 3.5
hereof.
"Regulation D" means Regulation D promulgated under the Securities Act
by the SEC.
"Required Holders" means Holders who then own beneficially more than 66-
2/3% of the aggregate number of Registrable Shares.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Common Stock; provided, however, that Securities
shall not include any shares of Common Stock issued upon the exercise of any
options awarded under the Company's 1996 Stock Option Plan.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Seller Affiliates" shall have the meaning provided in Section 3.6.1
hereof.
"Significant Sale" shall have the meaning provided in Section 4.1
hereof.
"Stockholders Agreement" means this Stockholders Agreement, as such from
time to time may be amended.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting
power, under ordinary circumstances, to elect directors, is at the time,
directly or indirectly, owned by such Person, by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person, and
(ii) any other Person (other than a corporation) in which such Person, a
subsidiary of such Person or such Person and one or more subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, has (x)
at least a majority ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"Suspension Notice" shall have the meaning provided in Section 3.4
hereof.
"Transfer" means any disposition of any Security or any interest therein
that would constitute a "sale" thereof within the meaning of the Securities
Act.
"Transfer Notice" shall have the meaning provided in Section 5.3 hereof.
"Unaccredited Holder" shall have the meaning provided in Section 6.2.3
hereof.
Section 1.2 Rules of Construction. Unless the context otherwise
requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
and
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(5) "herein," "thereof" and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2
MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES
Section 2.1 Board of Directors.
2.1.1 Board Representation. Subject to Section 2.1.3, the Board of
Directors of the Company shall consist of such individuals as may be designated
from time to time by the HMC Group (an "HMC Group Designee"). Each Holder
shall vote his or its shares of Common Stock at any regular or special meeting
of stockholders of the Company or in any written consent executed in lieu of
such a meeting of stockholders and shall take all other actions necessary to
give effect to the agreements contained in this Agreement (including without
limitation the election of persons designated by the HMC Group to be elected as
directors as described in the preceding sentence) and to ensure that the
certificate of incorporation and bylaws as in effect immediately following the
date hereof do not, at any time thereafter, conflict in any respect with the
provisions of this Agreement.
2.1.2 Vacancies. If, prior to his election to the Board of Directors
of the Company pursuant to Section 2.1.1 hereof, any HMC Group Designee shall
be unable or unwilling to serve as a director of the Company, the HMC Group
shall be entitled to nominate a replacement who shall then be an HMC Group
Designee for purposes of this Section 2. If, following an election to the Board
of Directors of the Company pursuant to Section 2.1.1 hereof, any HMC Group
Designee shall resign or be removed or be unable to serve for any reason prior
to the expiration of his term as a director of the Company, the HMC Group
shall, within 30 days of such event, notify the Board of Directors of the
Company in writing of a replacement HMC Group Designee, and either (i) the
Holders shall vote their shares of Common Stock, at any regular or special
meeting called for the purpose of filling positions on the Board of Directors
of the Company or in any written consent executed in lieu of such a meeting of
stockholders, and shall take all such other actions necessary to ensure the
election to the Board of Directors of the Company of such replacement HMC Group
Designee to fill the unexpired term of the HMC Group Designee who such new HMC
Group Designee is replacing or (ii) the Board of Directors shall elect such
replacement HMC Group Designee to fill the unexpired term of the HMC Group
Designee who such new HMC Group Designee is replacing. If the HMC Group
requests that any HMC Group Designee be removed as a Director (with or without
cause) by written notice thereof to the Company, then the Company shall take
all actions necessary to effect, and each of the Holders shall vote all its or
his capital stock in favor of, such removal upon such request.
2.1.3 Termination of Rights. The right of the HMC Group to designate
directors under Section 2.1.1, and the obligation of the Holders to vote their
shares as provided herein, shall terminate upon the first to occur of (i) the
termination or expiration of this Stockholders Agreement or this Article 2,
(ii) such time as the HMC Group elects in writing to terminate its rights under
this Article 2, or (iii) such time as the HMC Group cease to own any shares of
Common Stock.
2.1.4 Costs and Expenses. The Company will pay all reasonable out-of-
pocket expenses incurred by the designees of the HMC Group in connection with
their participation in meetings of the Board of Directors (and committees
thereof) of the Company and the Boards of Directors (and committees thereof) of
the Subsidiaries of the Company.
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Section 2.2 Other Activities of the Holders; Fiduciary Duties. It is
understood and accepted that the Holders and their Affiliates have interests in
other business ventures which may be in conflict with the activities of the
Company and its Subsidiaries and that, subject to applicable law, nothing in
this Stockholders Agreement shall limit the current or future business
activities of the Holders whether or not such activities are competitive with
those of the Company and its Subsidiaries. Nothing in this Agreement, express
or implied, shall relieve any officer or director of the Company or any of its
Subsidiaries, or any Holder, of any fiduciary or other duties or obligations
they may have to the Company's stockholders.
Section 2.3 Grant of Proxy. Each Holder hereby constitutes and
appoints HMTF with full power of substitution, as its true and lawful proxy and
attorney-in-fact to vote any and all shares of any class or series of capital
stock of the Company or any Subsidiary of the Company held by such Holder in
accordance with the provisions of Section 2.1 of this Stockholders Agreement.
Each Holder acknowledges that the proxy granted hereby is irrevocable, being
coupled with an interest, and that such proxy will continue until the
termination of such Holder's obligation to vote any shares in accordance with
this Article 2.
ARTICLE 3
REGISTRATION RIGHTS
Section 3.1 Piggyback Registrations.
3.1.1 Right to Piggyback. Each time the Company proposes to register
any of its equity securities (other than pursuant to an Excluded Registration)
under the Securities Act for sale to the public (whether for the account of the
Company, pursuant to a Demand Registration, or otherwise for the account of any
securityholder of the Company) and the form of registration statement to be
used permits the registration of Registrable Shares, the Company shall give
prompt written notice to each Holder of Registrable Shares (which notice shall
be given not less than 30 days prior to the effective date of the Company's
registration statement), which notice shall offer each such Holder the
opportunity to include any or all of its or his Registrable Shares in such
registration statement, subject to the limitations contained in Section 3.1.2
hereof. Each Holder who desires to have its or his Registrable Shares included
in such registration statement shall so advise the Company in writing (stating
the number of shares desired to be registered) within 20 days after the date of
such notice from the Company. Any Holder shall have the right to withdraw such
Holder's request for inclusion of such Holder's Registrable Shares in any
registration statement pursuant to this Section 3.1.1 by giving written notice
to the Company of such withdrawal. Subject to Section 3.1.2 below, the Company
shall include in such registration statement all such Registrable Shares so
requested to be included therein; provided, however, that the Company may at
any time withdraw or cease proceeding with any such registration if it shall at
the same time withdraw or cease proceeding with the registration of all other
equity securities originally proposed to be registered.
3.1.2 Priority on Registrations. If the Registrable Shares requested
to be included in the registration statement by any Holder differ from the type
of securities proposed to be registered by the Company and the managing
underwriter advises the Company that due to such differences the inclusion of
such Registrable Shares would materially and adversely affect the price or
success of the offering (a "Material Adverse Effect"), then (i) the number of
such Holder's or Holders' Registrable Shares to be included in the registration
statement shall be reduced to an amount which, in the judgment of the managing
underwriter, would eliminate such Material Adverse Effect or (ii) if no such
reduction would, in the judgment of the managing underwriter, eliminate such
Material Adverse Effect, then the Company shall have the right to exclude all
such Registrable Shares from such registration statement provided no other
securities of such type are included and offered for the account of any other
Person in such registration statement. Any
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partial reduction in number of Registrable Shares to be included in the
registration statement pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Holder's
requested shares bears to the total number of shares requested to be included
in such registration statement by all Persons who have requested that their
shares be included in such registration statement. If the Registrable Shares
requested to be included in the registration statement are of the same type as
the securities being registered by the Company and the managing underwriter
advises the Company that the inclusion of such Registrable Shares would cause a
Material Adverse Effect, the Company will be obligated to include in such
registration statement, as to each Holder, only a portion of the shares such
Holder has requested be registered equal to the ratio which such Holder's
requested shares bears to the total number of shares requested to be included
in such registration statement by all Persons (other than (i) the Company, if
such registration has been initiated by the Company for securities to be
offered by the Company and (ii) by Persons exercising their right to cause a
Demand Registration) who have requested that their shares be included in such
registration statement. It is acknowledged by the Holders, that pursuant to
the foregoing provision, the securities to be included in such registration
shall be allocated (x) first, to the Company, if such registration has been
initiated by the Company for securities to be offered by the Company, (y)
second, to securities offered by Persons exercising their right to cause a
Demand Registration, if such registration is a Demand Registration and (z)
third, to the Holders and all other persons requesting securities to be
included therein in accordance with the above described ratio. If as a result
of the provisions of this Section 3.1.2 any Holder shall not be entitled to
include all Registrable Securities in a registration that such Holder has
requested to be so included, such Holder may withdraw such Holder's request to
include Registrable Shares in such registration statement. No Person may
participate in any registration statement hereunder unless such Person (x)
agrees to sell such person's Registrable Shares on the basis provided in any
underwriting arrangements approved by the Company and (y) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; provided, however, that no such Person shall be
required to make any representations or warranties in connection with any such
registration other than representations and warranties as to (i) such Person's
ownership of his or its Registrable Shares to be sold or transferred free and
clear of all liens, claims, and encumbrances, (ii) such Person's power and
authority to effect such transfer, and (iii) such matters pertaining to
compliance with securities laws as may be reasonably requested; provided
further, however, that the obligation of such Person to indemnify pursuant to
any such underwriting arrangements shall be several, not joint and several,
among such Persons selling Registrable Shares, and the liability of each such
Person will be in proportion to, and provided further that such liability will
be limited to, the net amount received by such Person from the sale of his or
its Registrable Shares pursuant to such registration.
3.2 Holdback Agreement. Unless the managing underwriter otherwise
agrees, each of the Company and the Holders agrees, and the Company agrees, in
connection with any underwritten registration, to use its reasonable efforts to
cause its Affiliates to agree, not to effect any public sale or private offer
or distribution of any Common Stock or Common Stock Equivalents during the ten
business days prior to the effectiveness under the Securities Act of any
underwritten registration and during such time period after the effectiveness
under the Securities Act of any underwritten registration (not to exceed 120
days) (except, if applicable, as part of such underwritten registration) as the
Company and the managing underwriter may agree.
3.3 Registration Procedures. Whenever any Holder has requested that
any Registrable Shares be registered pursuant to this Stockholders Agreement,
the Company will use its commercially reasonable efforts to effect the
registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
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(i) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(ii) prepare and file with the SEC such amendments, post-effective
amendments, and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days (or such lesser
period as is necessary for the underwriters in an underwritten offering to sell
unsold allotments) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(iii) furnish to each seller of Registrable Shares and the underwriters
of the securities being registered such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus), any
documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to Section
3.4 and the requirements of the Securities Act and applicable State securities
laws, the Company consents to the use of the prospectus and any amendment or
supplement thereto by each seller and the underwriters in connection with the
offering and sale of the Registrable Shares covered by the registration
statement of which such prospectus, amendment or supplement is a part);
(iv) use its commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the managing underwriter reasonably requests; use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or
which requires the making of any changes in such registration statement,
prospectus or documents so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and, as promptly as
practicable thereafter, prepare and file with the SEC and furnish a supplement
or amendment to such prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Shares, such prospectus will not contain any
untrue statement of a material fact or omit a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
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(vi) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act;
(vii) if requested by the managing underwriter or any seller promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests to be
included therein, including, without limitation, with respect to the
Registrable Shares being sold by such seller, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
underwritten offering of the Registrable Shares to be sold in such offering,
and promptly make all required filings of such prospectus supplement or post-
effective amendment;
(viii) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a registration statement (in
the form in which it was incorporated), deliver a copy of each such document to
each seller;
(ix) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall not
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available
to the Company's transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties
of the Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
that, unless the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes, after
consultation with counsel for the Company, that to do so would cause the
Company to forfeit an attorney-client privilege that was applicable to such
information or (B) if either (1) the Company has requested and been granted
from the SEC confidential treatment of such information contained in any filing
with the SEC or documents provided supplementally or otherwise or (2) the
Company reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing any such
information with respect to (A) or (B) such Holder of Registrable Securities
requesting such information agrees to enter into a confidentiality agreement in
customary form and subject to customary exceptions; and provided, further that
each Holder of Registrable Securities agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company at its expense, to undertake
appropriate action and to prevent disclosure of the Records deemed
confidential;
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(xi) furnish to each seller underwriter a signed counterpart of (A) an
opinion or opinions of counsel to the Company, and (B) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(xii) cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed, or (B) authorized to
be quoted and/or listed (to the extent applicable) on the National Association
of Securities Dealers, Inc. Automated Quotation ("NASDAQ") or the NASDAQ
National Market System if the Registrable Shares so qualify;
(xiii) provide a CUSIP number for the Registrable Shares included in any
registration statement not later than the effective date of such registration
statement;
(xiv) cooperate with each seller and each underwriter participating in
the disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. ("NASD");
(xv) during the period when the prospectus is required to be delivered
under the Securities Act, promptly file all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any request
by the SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(xvii) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
(xviii) enter into such agreements (including underwriting agreements in
the managing underwriter's customary form) as are customary in connection with
an underwritten registration; and
(xix) advise each seller of such Registrable Shares, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued.
3.4 Suspension of Dispositions. Each Holder agrees by acquisition of
any Registrable Shares that, upon receipt of any notice (a "Suspension Notice")
from the Company of the happening of any event of the kind described in Section
3.3(v)(C), such Holder will forthwith discontinue disposition of Registrable
Shares until such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "Advice") by the Company
that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 3.3(ii) hereof shall be extended by the number of days
during the period from and including the date of the giving of the
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Suspension Notice to and including the date when each seller of Registrable
Shares covered by such registration statement shall have received the copies of
the supplemented or amended prospectus or the Advice. The Company shall use
its commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable.
3.5 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 3 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD (including, if applicable, the fees and
expenses of any "qualified independent underwriter" as such term is defined in
Schedule E of the By-Laws of the NASD, and of its counsel), as may be required
by the rules and regulations of the NASD, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements of
counsel in connection with "blue sky" qualifications of the Registrable
Shares), rating agency fees, printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), messenger and
delivery expenses, the Company's internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the fees and expenses incurred in connection with
any listing of the Registrable Shares, fees and expenses of counsel for the
Company and its independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or incident
to such performance), securities acts liability insurance (if the Company
elects to obtain such insurance), the fees and expenses of any special experts
retained by the Company in connection with such registration, and the fees and
expenses of other persons retained by the Company and reasonable fees and
expenses of one firm of counsel for the sellers (which shall be selected by the
holders of a majority of the Registrable Shares being included in any
particular registration statement) (all such expenses being herein called
"Registration Expenses") will be borne by the Company whether or not any
registration statement becomes effective; provided that, except as expressly
otherwise provided above, in no event shall Registration Expenses include any
underwriting discounts, commissions, or fees attributable to the sale of the
Registrable Shares or any counsel, accountants, or other persons retained or
employed by the Holders.
3.6 Indemnification.
3.6.1 The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller (within the meaning of the Securities
Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by 3.6.3) based
upon, arising out of, related to or resulting from any untrue or alleged untrue
statement of a material fact contained in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, (B)
against any and all loss, liability, claim, damage, and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, and (C) against any and all costs and expenses
(including reasonable fees and disbursements of counsel) as may be reasonably
incurred in investigating, preparing, or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon, arising out of, related to or
resulting from any such untrue statement or omission or alleged untrue
statement or omission, to the extent that any such expense or cost
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is not paid under subparagraph (A) or (B) above; except insofar as the same are
made in reliance upon and in strict conformity with information furnished in
writing to the Company by such seller or any Seller Affiliate for use therein
or arise from such seller's or any Seller Affiliate's failure to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 3.6.1 will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
3.6.2 In connection with any registration statement in which a seller
of Registrable Shares is participating, each such seller will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 3.6.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller
Affiliates specifically for inclusion in the registration statement; provided
that the obligation to indemnify will be several, not joint and several, among
such sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and provided further that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such seller of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
3.6.3 Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (x) the
indemnifying party has agreed to pay such fees or expenses, or (y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). If such defense is assumed by the indemnifying party
pursuant to the provisions hereof, such indemnifying party shall not settle or
otherwise compromise the applicable claim unless (1) such settlement or
compromise contains a full and unconditional release of the indemnified party
or (2) the indemnified party otherwise consents in writing. An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless
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in the reasonable judgment of any indemnified party, a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and disbursements of such additional
counsel or counsels.
3.6.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 3.6.1 or Section 3.6.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and
the parties, relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this
Section 3.6.4 were determined by pro rata allocation (even if the Holders or
any underwriters or all of them were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 3.6.4. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages, liabilities,
or expenses (or actions in respect thereof) referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 3.6.3, defending any such action or claim. Notwithstanding the
provisions of this Section 3.6.4, no Holder shall be required to contribute an
amount greater than the dollar amount by which the proceeds received by such
Holder with respect to the sale of any Registrable Shares exceeds the amount of
damages which such Holder has otherwise been required to pay by reason of such
statement or omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations in this Section 3.6.4 to
contribute shall be several in proportion to the amount of Registrable Shares
registered by them and not joint.
If indemnification is available under this Section 3.6, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 3.6.1 and Section 3.6.2 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 3.6.4.
3.6.5 The indemnification and contribution provided for under this
Stockholders Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of securities.
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ARTICLE 4
TRANSFERS OF SECURITIES
Section 4.1 Drag Along Rights.
4.1.1 Applicability. In connection with any Transfer by members of the
HMC Group of shares of Common Stock representing more than 50% of the shares of
Common Stock then held by the HMC Group (a "Significant Sale"), the HMC Group
shall have the right to require each non-selling Holder (each, a "Co-Seller")
to Transfer a portion of its Common Stock which represents the same percentage
of the Fully-Diluted Common Stock held by such Co-Seller as the shares being
disposed of by the HMC Group represent of the Fully-Diluted Common Stock held
by the HMC Group. (For example, if the HMC Group is selling 50% of their Fully-
Diluted Common Stock position, each Co-Seller shall be required to sell 50% of
its Fully-Diluted Common Stock position.) All Common Stock Transferred by
Holders pursuant to this Section 4.1 shall be sold at the same price and
otherwise treated identically with the Common Stock being sold by the HMC Group
in all respects; provided, that the Co-Seller shall not be required to make any
representations or warranties in connection with such Transfer other than
representations and warranties as to (i) such Co-Seller's ownership of his or
its Common Stock to be Transferred free and clear of all liens, claims and
encumbrances, (ii) such Co-Seller's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws
as the transferee may reasonably require except that the transferee may not
require that each Transferring Co-Seller be an Accredited Investor.
4.1.2 Notice of Significant Sale. HMTF, on behalf of the HMC Group,
shall give each Co-Seller at least 30 days' prior written notice of any
Significant Sale as to which the HMC Group intends to exercise its rights under
Section 4.1. If the HMC Group elects to exercise its rights under Section 4.1,
the Co-Sellers shall take such actions as may be reasonably required and
otherwise cooperate in good faith with the HMC Group in connection with
consummating the Significant Sale (including, without limitation, the voting of
any Common Stock or other voting capital stock of the Company to approve such
Significant Sale). At the closing of such Significant Sale, each Co-Seller
shall deliver certificates for all shares of Common Stock to be sold by such
Co-Seller, duly endorsed for transfer, with the signature guaranteed, to the
purchaser against payment of the appropriate purchase price.
Section 4.2 Tag Along Rights.
4.2.1 Applicability. If the HMC Group desires to effect a Significant
Sale and it does not elect to exercise its rights under Section 4.1 hereof,
then at least 30 days prior to the closing of such Significant Sale, HMTF and
the Company shall cause the HMC Group to make an offer (the "Participation
Offer") to each Co-Seller to include in the proposed Significant Sale a portion
of its Common Stock which represent the same percentage of such Co-Seller's
Fully Diluted Common Stock as the shares being sold by the HMC Group represent
of its Fully-Diluted Common Stock; provided that, if the consideration to be
received by the HMC Group includes any securities, then, unless HMTF and the
transferee both reasonably determine that an exemption is otherwise available
under the Securities Act and all applicable state securities laws for such
transaction, only Co-Sellers who have certified to the reasonable satisfaction
of HMTF that they are Accredited Investors shall be entitled to participate in
such transaction, unless the transferee consents otherwise.
4.2.2 Terms of Participation Offer. The Participation Offer shall
describe the terms and conditions of the proposed Significant Sale and shall be
conditioned upon (i) the consummation of the transactions contemplated in the
Participation Offer with the transferee named therein, and (ii) each Co-
Seller's execution
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and delivery of all agreements and other documents as the members of the HMC
Group are required to execute and deliver in connection with such Significant
Sale (provided that the Co-Seller shall not be required to make any
representations or warranties in connection with such sale or transfer other
than representations and warranties as to (A) such Co-Seller's ownership of his
Common Stock to be sold or transferred free and clear of all liens, claims, and
encumbrances, (B) such Co-Seller's power and authority to effect such transfer
and (C) such matters pertaining to compliance with securities laws as the
transferee may reasonably require). If any Co-Seller shall accept the
Participation Offer, HMTF and the Company shall cause the HMC Group to reduce,
to the extent necessary, the number of shares of Common Stock it otherwise
would have sold in the proposed transfer so as to permit those Co-Sellers who
have accepted the Participation Offer to sell the number of shares of Common
Stock that they are entitled to sell under this Section 4.2, and HMTF shall
cause the HMC Group to transfer and such Co-Sellers shall transfer the number
of shares Common Stock specified in the Participation Offer to the proposed
transferee in accordance with the terms of such transfer as set forth in the
Participation Offer.
Section 4.3 Certain Events Not Deemed Transfers. In no event shall
any exchange, reclassification, or other conversion of shares into any cash,
securities, or other property pursuant to a merger or consolidation of the
Company or any Subsidiary with, or any sale or transfer by the Company or any
Subsidiary of all or substantially all its assets to, any Person constitute a
Significant Sale of shares of Common Stock by the HMC Group for purposes of
Section 4.1 or 4.2. In addition, Sections 4.1 and 4.2 hereof shall not apply
to any transfer, sale, or disposition of shares of Common Stock solely among
members of the HMC Group.
Section 4.4 Transfer and Exchange. When Securities are presented to
the Company with a request to register the transfer of such Securities or to
exchange such Securities for Securities of other authorized denominations, the
Company shall register the transfer or make the exchange as requested if the
requirements of this Stockholders Agreement for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company, duly executed by the Holder thereof or its
attorney and duly authorized in writing. No service charge shall be made for
any registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith.
Section 4.5 Replacement Securities. If a mutilated Security is
surrendered to the Company or if the Holder of a Security claims and submits an
affidavit or other evidence, satisfactory to the Company, to the effect that
the Security has been lost, destroyed or wrongfully taken, the Company shall
issue a replacement Security if the Company's requirements are met. If
required by the Company, such Securityholder must provide an indemnity bond, or
other form of indemnity, sufficient in the judgment of the Company to protect
the Company against any loss which may be suffered. The Company may charge
such Securityholder for its reasonable out-of-pocket expenses in replacing a
Security which has been mutilated, lost, destroyed or wrongfully taken.
ARTICLE 5
LIMITATION ON TRANSFERS
Section 5.1 Restrictions on Transfer. The Securities shall not be
Transferred or otherwise conveyed, assigned or hypothecated before satisfaction
of (i) the conditions specified in this Section 5.1 and Sections 5.2 through
5.3, which conditions are intended to ensure compliance with the provisions of
the Securities Act with respect to the Transfer of any Security and (ii) if
applicable, Article 4 hereof. Any
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purported Transfer in violation of this Article 5 and/or, if applicable,
Article 4 hereof shall be void ab initio and of no force or effect. Except for
Transfers made pursuant to Sections 4.1 or 4.2 hereof (it being understood that
transactions pursuant to such Sections are not subject to this Article 5) and
except for Transfers to the public pursuant to an effective registration
statement or sales to the public pursuant to Rule 144 under the Securities Act
otherwise permitted hereunder, each Holder will cause any proposed transferee
of any Security or any interest therein held by it to agree to take and hold
such securities subject to the provisions and upon the conditions specified in
this Stockholders Agreement. Each Holder shall not Transfer, convey, assign or
hypothecate any Securities to any Affiliate of such Holder or any member of
such Holder's family unless such Holder shall have and retain all voting rights
with respect to such Securities.
Section 5.2 Restrictive Legends.
5.2.1 Securities Act Legend. Except as otherwise provided in Section
5.4 hereof, each Security held by a Holder, and each Security issued to any
subsequent transferee of such Security, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR
OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO
THE ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR
OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
5.2.2 Other Legends. Each Security issued to each Holder or a
subsequent transferee shall include a legend in substantially the following
form:
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING AND OTHER
TERMS AND CONDITIONS SET FORTH IN THE STOCKHOLDERS AGREEMENT DATED AS OF
OCTOBER 16, 1996, A COPY OF WHICH MAY BE OBTAINED FROM CAPSTAR BROADCASTING
PARTNERS, INC. AT ITS PRINCIPAL EXECUTIVE OFFICES.
Section 5.3 Right of First Refusal.
5.3.1 Right of First Refusal. Prior to any Transfer or attempted
Transfer by any Holder of any Securities or Common Stock Equivalents (the
"Offered Securities") other than pursuant to a registration under the
Securities Act, the Holder of such Offered Securities shall (i) give prior
written notice (a "Transfer Notice") to HMTF of such Holder's intention to
effect such Transfer, describing the terms and conditions of the proposed
Transfer, including the identity of the prospective transferee(s), the number
of shares of Offered Securities such Holder desires to sell and the purchase
price. After receipt of the Transfer Notice, HMTF (or as provided in Section
5.3.3, an assignee of HMTF who is a member of the HMC Group) shall have the
option for 15 days from the date of receipt of the Transfer Notice to elect to
purchase all, but not less than all, of the Offered Securities upon the same
terms and conditions as those set forth in the Transfer Notice by delivering a
written notice (the "Election Notice") of such election to such Holder within
such 15-day period. The Holder shall not consummate such Transfer until the
earlier to occur of the lapse of the 15-day period or the date on which HMTF
(acting for itself or if applicable, its assignee) notifies such Holder in
writing that it will not exercise its rights under this Section 5.3 (the
"Authorization Date"). If neither HMTF (nor any assignee) has elected to
purchase all of the Offered Securities or has failed to make a timely
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election, such Holder may Transfer all, but not less than all, of the Offered
Securities to the prospective transferee(s) thereof specified in the Transfer
Notice, at a price and on terms no more favorable to such prospective
transferee(s) than as specified in the Transfer Notice, during the 30-day
period immediately following the Authorization Date, provided that, if required
by the Company, such Holder shall either (i) provide to the Company an opinion
reasonably satisfactory to the Company (or supply such other evidence
reasonably satisfactory to the Company) that the proposed Transfer may be
effected without registration under the Securities Act, or (ii) certify to the
Company that the Holder reasonably believes that each proposed transferee is a
"qualified institutional buyer" and that such Holder has taken reasonable steps
to make each proposed transferee aware that such Holder may rely on Rule 144A
under the Securities Act in effecting such Transfer. Each Security issued upon
such Transfer shall bear the restrictive legend set forth in Section 5.2,
unless in the reasonable judgment of counsel for the Company such legend is not
required in order to ensure compliance with the Securities Act. If the Offered
Securities are not so transferred within such 30-day period, such Offered
Securities must be reoffered to HMTF in accordance with the provisions of this
Section 5.3 if such Holder still desires to Transfer the Offered Securities.
5.3.2 Closing. If HMTF (or an assignee) exercises the right to
purchase the Offered Securities by timely delivery of the Election Notice,
unless otherwise agreed by the Holder of the Offered Securities and HMTF,
(acting for itself, or if applicable, its assignee) the closing will take place
at the offices of the Company in Dallas, Texas on the fifth business day after
the date of the Election Notice. At the closing, HMTF (or, if applicable, its
assignee) will pay the purchase price set forth in the Transfer Notice in cash
(by certified or cashier's check) solely upon such Holder's delivery to HMTF
(or, if applicable, its assignee), of valid certificates or agreements
evidencing all of the Offered Securities then being purchased pursuant to the
Election Notice. Certificates or agreements representing the Offered
Securities will be duly endorsed (with signature guaranteed) for transfer to
HMTF (or, if applicable, its assignee). By delivery of such certificates or
agreements to HMTF (or, if applicable, its assignee) such Holder will be deemed
to represent and warrant to HMTF (or, if applicable, its assignee) that the
transferred Offered Securities are owned by such Holder free and clear of all
liens, adverse claims, and other encumbrances other than as provided in this
Stockholders Agreement. The Holder will promptly perform, whether before or
after any such closing, such additional acts (including without limitation
executing and delivering additional documents) as are reasonably required by
either such party to effect more fully the transactions contemplated by this
Section 5.3.
5.3.3 Assignment. The rights of HMTF under this Section 5.3 may be
assigned or transferred in whole or in part by HMTF, without any consent or
other action on the part of any other party hereto, to any one or more members
of the HMC Group.
Section 5.4 Termination of Certain Restrictions. Notwithstanding the
foregoing provisions of this Section 5, the restrictions imposed by Section
5.3.1 upon the transferability of the Securities and the legend requirements of
Section 5.2.1 shall terminate as to any Security (i) when and so long as such
Security shall have been effectively registered under the Securities Act and
disposed of pursuant thereto or disposed pursuant to the provisions of Rule 144
or (ii) when the Company shall have received an opinion of counsel reasonably
satisfactory to it that such Security may be transferred without registration
thereof under the Securities Act and that such legend may be removed. Whenever
the restrictions imposed by Section 5.2 shall terminate as to any Security, the
Holder thereof shall be entitled to receive from the Company, at the Company's
expense, a new Security not bearing the restrictive legend set forth in Section
5.2.
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ARTICLE 6
PURCHASE OPTION
Section 6.1. Purchase Option.
6.1.1 Purchase Option. If (i), and at such time as, a Holder is no
longer a director, officer or employee of the Company or any Subsidiary of the
Company, for any reason at any time or (ii) a Change of Control occurs, the
Company shall have the option (the "Purchase Option") to purchase, and if the
Purchase Option is exercised, such Holder (or the executor or administrator of
such Holder's estate, in the event of such Holder's death, or such Holder's
legal representative in the event of his incapacity) (hereinafter, collectively
with such Holder, the "Grantor") shall sell to HMTF, (or as provided in Section
6.1.4 an assignee of HMTF) all or any portion (at the option of HMTF acting for
itself or, if applicable, its assignee) of the shares of Common Stock and/or
Common Stock Equivalents held by the Grantor (such shares of Common Stock
and/or Common Stock Equivalents collectively being referred to as the
"Purchasable Securities"), subject to HMTF's (or, if applicable, its assignee)
compliance with the conditions hereinafter set forth. HMTF (acting for itself
or, if applicable, its assignee) shall give notice (the "Purchase Notice") in
writing to the Grantor of the exercise of the Purchase Option within one year
from the date such Holder is no longer a director, officer or employee of the
Company or any Subsidiary of the Company or such Change of Control. Such
Purchase Notice shall state the number of Purchasable Securities to be
purchased and the exercise price for each Purchasable Security (on a per share
basis or, in the case of securities other than capital stock, other applicable
denomination). If no notice is given within the time limit specified above,
the Purchase Option shall terminate.
6.1.2 Closing. Unless otherwise agreed by the Grantor and HMTF,
(acting for itself or, if applicable, its assignee) the closing of each
exercise of the Purchase Option will take place at the offices of the Company
in Dallas, Texas, on the fifth business day after the Purchase Notice is mailed
or delivered in accordance with this Section 6.1. At the closing, HMTF (of, if
applicable, its assignee) will pay the exercise price to the Grantor in cash
(by certified or cashier's check) solely upon such Grantor's delivering to HMTF
(or, if applicable, its assignee) valid certificates or agreements evidencing
all Purchasable Securities then being purchased pursuant to the exercise of the
Purchase Option. Certificates or agreements representing the Purchasable
Securities will be duly endorsed (with signature guaranteed) for transfer to
HMTF (or, if applicable, its assignee). Upon delivery of such certificates or
agreements to HMTF(or, if applicable, its assignee) , the Grantor will be
deemed to represent and warrant to HMTF (or, if applicable, its assignee) that
the transferred Purchasable Securities are owned by the Grantor free and clear
of all liens, adverse claims, and other encumbrances other than as provided in
this Stockholders Agreement. In the event that, notwithstanding the foregoing,
the Grantor shall have failed to obtain the release of any lien, adverse claim
or other encumbrance on any Purchasable Securities by the scheduled closing
date (at the option of HMTF acting for itself or, if applicable, its assignee)
the closing shall nevertheless occur on such scheduled closing date, with the
exercise price being reduced to the extent of all unpaid indebtedness for which
such Purchasable Securities are then encumbered. Payment of the exercise price
for the Purchasable Securities is not required in order to effect the timely
exercise of the Purchase Option. In order to ensure the transfer of the
Purchasable Securities purchased upon exercise of the Purchase Option, the
Grantor hereby appoints HMTF as his or its attorney in fact for the purpose of
effecting any such transfer, and the Grantor acknowledges and agrees that such
power of attorney is coupled with an interest and is irrevocable. Moreover,
HMTF (or, if applicable, its assignee) and the Grantor will promptly perform,
whether before or after any Purchase Option closing, such additional acts
(including without limitation executing and delivering additional documents) as
are reasonably required by either such party to effect more fully the
transactions contemplated hereby.
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6.1.3 Exercise Price. The exercise price for each Purchasable Security
will equal the Appraised Value per share (or, in the case of securities other
than capital stock, other applicable denomination) to be paid in connection
with the exercise of the Purchase Option.
6.1.4 Assignment of Purchase Option. The Purchase Option may be
assigned or transferred in whole or in part by HMTF to any one or more members
of the HMC Group without any consent or other action on the part of any other
party hereto.
Section 6.2 Option by Certain Unaccredited Holders.
6.2.1 Grant of Option. Upon the occurrence of an Option Transaction
(as defined in Section 6.2.2 hereof) with respect to the Company, each Holder
shall be deemed to have granted to HMTF, an option ("Option") to purchase, upon
the terms and conditions set forth herein, all Securities held by such Holder
and all shares, notes, or other securities now or hereafter issued or issuable
in respect of any such Securities (whether issued or issuable by the Company or
any other person or entity) (collectively, the "Option Securities").
6.2.2 Option Transaction. The Option may be exercised only if (a) the
Company is engaged in or proposes to engage in a transaction in which any
shares, notes, or other securities will be issued to such Holder in a
transaction constituting a "sale" within the meaning of Section 2(3) of the
Securities Act (whether through a merger, consolidation, exchange, or
purchase), (b) the Holder is not an Accredited Investor at the time of the
respective transaction (an "Unaccredited Holder"), (c) no security holder
(except for such Unaccredited Holder or any other person granting a similar
option to HMTF) of the Company involved in the respective transaction fails at
the time of such transaction to qualify as an Accredited Investor, and (d) the
issuer of the shares, notes, or other securities involved in such transaction
(as conclusively evidenced by any notice signed in good faith by an executive
officer or other authorized representative of HMTF) has not prepared and is not
expected to prepare in connection with such transaction appropriate disclosure
documents that are sufficient to register such shares, notes, or other
securities under the Securities Act or to exempt such registration in
accordance with Regulation D. Each transaction for which the Option may be
exercised as provided in this Section 6.2.2 is herein referred to as an "Option
Transaction."
6.2.3 Exercise of Option. HMTF may exercise the Option solely with
respect to all, but not less than all, of such Unaccredited Holder's Option
Securities involved in the respective Option Transaction. The Option may be
exercised with respect to such Option Securities at any time before the
consummation of the respective Option Transaction for which the Option is then
exercisable. The exercise of the Option will be timely and effectively made if
HMTF provides written notice of such exercise to such Unaccredited Holder
before such consummation of the respective Option Transaction. The earliest
date on which such notice is so mailed or delivered will constitute the
respective exercise date of the Option to which such notice relates.
6.2.4 Closing. Unless otherwise agreed by HMTF and such Unaccredited
Holder, the closing of each exercise of the Option will take place at the
offices of the Company in Dallas, Texas, on the fifth business day after notice
of the Option's exercise is mailed or delivered in accordance with Section
6.2.3. At the closing, HMTF will pay the exercise price to such Unaccredited
Holder in cash (by certified or cashier's check) solely upon such Unaccredited
Holder's delivering to HMTF valid certificates evidencing all Option Securities
then being purchased pursuant to the exercise of the Option. Such certificates
will be duly endorsed (with signature guaranteed) for transfer to HMTF, and
upon delivery of such certificates to HMTF, such Unaccredited Holder will be
deemed to represent and warrant to HMTF that the transferred Option Securities
are owned by such Unaccredited Holder free and clear of all liens, adverse
claims, and
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other encumbrances other than as provided in this Stockholders Agreement.
Payment of the exercise price for the Option Securities is not required in
order to effect the timely exercise of the Option. In order to ensure the
transfer of the Option Securities purchased upon exercise of the Option, each
Unaccredited Holder hereby severally appoints HMTF as his or its attorney in
fact for the purpose of effecting any such transfer, and each Unaccredited
Holder acknowledges and agrees that such power of attorney is coupled with an
interest and is irrevocable. Moreover, HMTF and each Unaccredited Holder will
promptly perform, whether before or after any Option closing, such additional
acts (including without limitation executing and delivering additional
documents) as are reasonably required by either such party to effect more fully
the transactions contemplated hereby.
6.2.5 Exercise Price. The exercise price for each Option Security will
equal the Appraised Value per share (or, in the case of securities other than
capital stock, other applicable denomination) to be paid in connection with the
Option Transaction.
6.2.6 Assignment of Option. The Option may be assigned or transferred
in whole or in part by HMTF to any one or more members of the HMC Group without
any consent or other action on the part of any Holder, and all references
herein to "HMTF" will include without limitation each assignee or transferee of
all or any part of the Option.
ARTICLE 7
TERMINATION
The provisions of this Agreement shall terminate on the tenth
anniversary of the date of this Stockholders Agreement; provided, however, that
Sections 4.1 and 4.2 and Articles 2, 5 (other than Sections 5.2 and 5.4) and 6
of this Agreement shall terminate upon the consummation prior to the expiration
of such 10-year period of a Qualified IPO.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows (or at such
other address as may be substituted by notice given as herein provided):
If to the Company:
Capstar Broadcasting Partners, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxx Xxxxx
Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
-00-
00
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
If to HMTF:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx 0. Xxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Hicks, Muse, Xxxx & Xxxxx Incorporated
1325 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five
calendar days after mailing if sent by registered or certified mail (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 8.2 Legal Holidays. A "Legal Holiday" used with respect to a
particular place of payment is a Saturday, a Sunday or a day on which banking
institutions at such place are not required to be open. If a payment date is a
Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest on the amount of
such payment shall accrue for the intervening period.
Section 8.3 Governing Law; Jurisdiction. THIS STOCKHOLDERS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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Section 8.4 Successors and Assigns. Whether or not an express
assignment has been made pursuant to the provisions of this Stockholders
Agreement, provisions of this Stockholders Agreement that are for the Holders'
benefit as the holders of any Securities are also for the benefit of, and
enforceable by, all subsequent holders of Securities, except as otherwise
expressly provided herein. This Stockholders Agreement shall be binding upon
the Company, each Holder, and their respective successors and assigns.
Section 8.5 Duplicate Originals. All parties may sign any number of
copies of this Stockholders Agreement. Each signed copy shall be an original,
but all of them together shall represent the same agreement.
Section 8.6 Severability. In case any provision in this Stockholders
Agreement shall be held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and the remaining provisions shall not in any way be
affected or impaired thereby.
Section 8.7 No Waivers; Amendments.
8.7.1 No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
8.7.2 Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders; provided that no such amendment or waiver
shall, (i) unless signed by all of the Holders, amend the provisions of Section
2.1, (ii) unless signed by all of the Holders affected, (A) amend the
provisions of this Section 8.7.2 or (B) change the number of Holders which
shall be required for the Holders or any of them to take any action under this
Section 8.7.2 or any other provision of this Stockholders Agreement, and (iii)
unless signed by a majority in interest of the Holders who are not members of
the HMC Group, amend Article 3, Section 4.1, Section 4.2 or Articles 5 or 6, or
grant a waiver thereunder.
Section 8.8 Third Parties. Each member of the HMC Group is an
intended third party beneficiary of this Stockholders Agreement and, to the
extent applicable, bound by the provisions thereof including without limitation
Article III and Section 4.2 hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES TO STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed, all as of the date first written above.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ R. XXXXXX XXXXX
---------------------------------
Name: R. Xxxxxx Xxxxx
Title: Chief Executive Officer and President
HICKS, MUSE, XXXX & XXXXX INCORPORATED
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
24
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX XXXXXX
---------------------------------
Xxxxxxx XxXxxx
Address:
0000 XX Xxxxx Xxxxx Xxxxxx
Xxxx Xxxx, XX 00000
25
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX XXXXXXXX
---------------------------------
Xxxx Xxxxxxxx
Address:
00000 Xxxx Xxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
26
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX XXXXXXXXXX
---------------------------------
Xxxx Xxxxxxxxxx
Address:
0000 Xxxxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
27
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX XXXXX
---------------------------------
Xxxxx Xxxxx
Address:
00-00 00xx Xxxxxx
Xxxxxxx, XX 00000
28
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXX XXXXXXXX
---------------------------------
Xxxxxx Xxxxxxxx
Address:
00 Xxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
29
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXX XXXXXX
---------------------------------
Xxx Xxxxxx
Address:
00 Xxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
30
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX X. XXXX
---------------------------------
Xxxxx X. Xxxx
Address:
0000 Xxx Xxx Xxxxx
Xxxxxxxxx, XX 00000
31
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX XXXXX
---------------------------------
Xxxx Xxxxx
Address:
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
32
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX X. XXXXXXXX
---------------------------------
Xxxxx X. Xxxxxxxx
Address:
0 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
33
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX XXXXXXXXX
---------------------------------
Xxxxx Xxxxxxxxx
Address:
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
34
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX XXXXXX
---------------------------------
Xxxx Xxxxxx
Address:
00 Xxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
