Exhibit 10.1
FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT dated as of December
19, 1997 (this "First Amendment") by and among Heftel Broadcasting Corporation,
a Delaware corporation (the "Company"), XxXxxxx X. Xxxxxxxx, Xx., XxXxxxx X.
Xxxxxxxx, Xx., Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, The
Xxxxx X. Xxxxxxxx Trust, Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxx.
RECITALS
A. The parties hereto are original parties to, or successors in interest
to original parties to, that certain Registration Rights Agreement dated as of
February 14, 1997 (the "Existing Agreement") and constitute all of the "Holders"
thereunder.
B. Prime II Management, L.P., PrimeComm, L.P., Alta Subordinated Debt
Partners and Xxxxxxx X. Del Xxxxxxxx were parties to the Existing Agreement but
no longer own any Registrable Securities (as defined in the Existing Agreement)
and are no longer "Original Holders" or "Holders" under the Existing Agreement.
C. Xxxxx X. Xxxxxxxx has transferred all of his Registrable Securities to
The Xxxxx X. Xxxxxxxx Trust, which remains subject to the Existing Agreement.
D. The Company has registered 700,000 shares of Registrable Securities in
a shelf Registration Statement (File No. 333-42171) filed pursuant to Rule 415
of the Securities Act with the Securities and Exchange Commission on December
12, 1997.
E. The Company and the Holders desire to amend the Existing Agreement to,
among other things, (i) shorten to 10 days the notice period for equity
offerings subject to piggyback registration rights and (ii) clarify that
piggyback rights apply to certain equity offerings relating to registration
statements filed pursuant to Rule 415 of the Securities Act (as defined in the
Existing Agreement), i.e., shelf registration statements.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this First Amendment
and not otherwise defined herein shall have the meanings assigned thereto in the
Existing Agreement.
SECTION 2. AMENDMENT OF THE DEFINITION OF "REGISTRABLE SECURITIES".
The definition of "Registrable Securities" is hereby amended as follows: (i) to
replace the word "or" immediately before the clause "(f)" with a comma, and (ii)
to insert a new clause (g) to read "or (g) the Holder of such Registrable
Securities shall have terminated in writing to the Company all registration
rights with respect to such securities."
SECTION 3. ADDITION OF THE DEFINITION OF "REGISTRATION STATEMENT". The
definition of "Registration Statement" is hereby added to read in its entirety
as follows:
"Registration Statement" means that certain Registration Statement
(Registration No. 333-42171) filed with the Commission on December 12,
1997, as it may be amended or supplemented from time-to-time.
SECTION 4. AMENDMENT OF SECTION 3(a) OF THE EXISTING AGREEMENT.
Section 3(a) of the Existing Agreement is hereby amended to read in its entirety
as follows:
3(a) Subject to the provisions of this Agreement, if the Company
proposes to file (i) a registration statement under the Securities Act or
(ii) a prospectus supplement under Rule 424(b) of the Securities Act
relating to a registration statement filed pursuant to Rule 415 of the
Securities Act, in either case relating solely to a specific offering of
any equity securities by the Company for its own account or for the account
of any of its equity holders (other than an Exempt Registration Statement),
then the Company shall give written notice of such proposed filing to the
Holders of the Registrable Securities as soon as practicable (but in no
event less than (a) 30 days before the anticipated effective date of such
registration statement relating to a specific offering of equity securities
or (b) 10 days prior to the first filing of a prospectus supplement under
Rule 424(b) of the Securities Act relating to a specific offering of equity
securities pursuant to a registration statement filed pursuant to Rule 415
of the Securities Act, as applicable), and such notice shall offer the
Piggyback Holders (hereinafter defined) the opportunity to register or
offer, as applicable, such number of Registrable Securities as each
Piggyback Holder may request (a "Piggyback Registration"). Subject to
Section 3(b), the Company shall include in each such Piggyback Registration
all Registrable Securities requested to be included in such offering by the
Holders receiving notice of the Piggyback Registration (the "Piggyback
Holders"). Each Piggyback Holder shall be permitted to withdraw all or
part of such Piggyback Holder's Piggyback Securities from a Piggyback
Registration at any time prior to (x) the effective date of any
registration statement relating solely to a specific offering of equity
securities or (y) the date on which an underwriting agreement, placement
agreement, selling agent agreement or similar agreement is entered into by
the Company for a specific offering of equity securities pursuant to a
registration statement filed pursuant to Rule 415 of the Securities Act, as
applicable.
SECTION 5. AMENDMENT OF SECTION 3(b) OF THE EXISTING AGREEMENT.
Section 3(b) of the Existing Agreement is amended to add the following sentence
at the end of such Section.
This Section 3(b) shall also apply to offerings of equity securities
pursuant to a registration statement filed pursuant to Rule 415 of the
Securities Act, and in such case any reference in this Section 3(b) to
including Registrable Securities in a "registration statement" or in such
"registration" or to such securities or similar securities being
"registered" shall mean, as the context requires, including such
Registrable Securities in the proposed offering, including in any
prospectus supplement relating to such offering filed pursuant to 424(b)
relating to such offering under such registration statement.
SECTION 6. AMENDMENT OF SECTION 4(a) OF THE EXISTING AGREEMENT.
Section 4(a) of the Existing Agreement is hereby amended to read in its entirety
as follows:
4(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE SECURITIES.
Each Holder of Registrable Securities (whether or not such Registrable
Saturates are included in a registration statement pursuant hereto) agrees
not to effect any public sale or distribution of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock, including
a sale pursuant to Rule 144 under the Securities Act, during the 10 days
prior to, and during the 180-day period beginning on the date the
Underwriting Agreement is executed by the Underwriters, the Company and any
selling shareholders relating to a firm commitment underwritten public
offering of Common Stock or securities convertible into, or exchangeable or
exercisable for Common Stock, except as part of such registration, if and
to the extent requested by the Company in the case of a nonunderwritten
public offering or if and to the extent requested by the managing
Underwriter or Underwriters in the case of an underwritten public offering.
SECTION 7. AMENDMENT OF SECTION 4(b) OF THE EXISTING AGREEMENT.
Section 4(b) of the Existing Agreement is hereby amended to read in its entirety
as follows:
4(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees (i) other than pursuant to an Exempt Registration Statement,
not to effect any public sale or distribution of any securities similar to
those being registered or any securities convertible into or exchangeable
or exercisable for such securities, during the 10 days prior to, and during
180-day period (or such lesser period as agreed to by the managing
Underwriter or Underwriters of such offering) beginning on the date the
Underwriting Agreement, placement agreement, selling agent agreement or
similar agreement is executed by the Underwriters or placement agent, as
the case may be, the Company and any selling shareholders, unless the sale
or distribution is pursuant to such registration statement pursuant to
Section 3(b) or the Holders are participating in such registration
statement pursuant to Section 3, and such offering was initiated by the
Company with respect to the sale of securities by the Company and (ii) that
any agreement entered into after the date of this Agreement pursuant to
which the Company issues or agrees to issue any privately placed securities
shall contain a provision under which holders of such securities agree not
to effect any public sale or distribution of any such securities during the
period described in (i) above, including a sale pursuant to Rule 144 under
the Securities Act (except as part of any such registration, if permitted);
PROVIDED, HOWEVER, that the provisions of this paragraph (b) shall not
prevent the conversion or exchange of any securities pursuant to their
terms into or for other securities.
SECTION 8. NEW SECTION 15. A new Section 15 is hereby added to read in
its entirety as follows:
15. HOLDER SHELF REGISTRATION STATEMENT. Subject to the terms of
this Agreement, each Holder who has registered Registrable Securities under
the Registration Statement may offer or sell Registrable Securities under
the Registration Statement (or any other registration statement filed under
Rule 415 of the Securities Act under which Registrable Securities of
such holder are registered) only with the prior written approval of the
Company. Each Holder who has not registered Registrable Securities in the
Registration Statement hereby waives any and all piggyback registration
rights under Section 3 of the Agreement that such Holder may have with
respect to (i) the filing of the Registration Statement and (ii) the first
firmly underwritten public offering of Common Stock pursuant to the
Registration Statement (as to which such Holder also waives notice under
the Agreement), provided that such waiver will not apply to any such
offering commencing after December 31, 1998. Each Holder who has
registered Registrable Securities in the Registration Statement hereby
agrees that the number of shares of Common Stock that such Holder may
request that the Company include in the first firmly underwritten public
offering of Common Stock pursuant to the Registration Statement will not
exceed the number of shares of Registrable Securities owned by such Holder
which are registered in the Registration Statement, provided that such
limitation will not apply to any such offering commencing after December
31, 1998.
SECTION 9. EFFECTIVENESS. This First Amendment is effective as of the
date first above written.
SECTION 10. MISCELLANEOUS. This First Amendment may be executed in
counterparts, each of which shall be deemed to be an original First Amendment.
This First Amendment shall be governed, and construed in accordance with, the
internal laws of the State of Texas, without regard to its principles of
conflicts. Each reference to the Registration Rights Agreement from and after
the date hereof shall be deemed to refer to the Existing Agreement as amended
hereby, unless otherwise specifically stated. Except as otherwise expressly
amended by this First Amendment, the Existing Agreement is and shall continue to
be in full force and effect in accordance with its terms.
SECTION 11. CONSENT TO FIRST AMENDMENT TO CLEAR CHANNEL REGISTRATION
RIGHTS AGREEMENT; VOTING AGREEMENT. Each of the undersigned consents to the
First Amendment to the Clear Channel Registration Rights Agreement in
substantially the form attached hereto as Exhibit A. In consideration for Clear
Channel consenting to this First Amendment, each of the undersigned stockholders
of the Company who is a party to that certain Voting Agreement dated as of July
1, 1996 hereby agrees to vote all shares of Common Stock then owned by such
stockholder in favor of a proposal in increase the Company's authorized capital
to 150,000,000 shares of Class A (or such other amount as is acceptable to Clear
Channel and the Company), both pursuant to the Voting Agreement and at the next
stockholders meeting of the Company at which such proposal is presented to the
stockholders of the Company for a vote.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
HEFTEL BROADCASTING CORPORATION
By: /s/ XxXxxxx X. Xxxxxxxx, Xx.
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Name: XxXxxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
/s/ XxXxxxx X. Xxxxxxxx, Xx.
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XxXxxxx X. Xxxxxxxx, Xx.
/s/ XxXxxxx X. Xxxxxxxx, Xx.
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XxXxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
THE XXXXX X. XXXXXXXX TRUST
By: Colorado National Bank, Trustee
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
