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EXHIBIT 99(c)
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"Agreement"), dated as of July 19, 2000, by and among Xxxxx Advertising Company,
a Delaware corporation (the "Issuer"), AMFM Operating Inc. (f/k/a Chancellor
Media Corporation of Los Angeles), a Delaware corporation ("AMFM Operating"),
AMFM Holdings Inc. (f/k/a Chancellor Mezzanine Holdings Corporation), a Delaware
corporation ("AMFM Holdings") and Clear Channel Communications, Inc., a Texas
corporation ("Clear Channel").
WITNESSETH:
WHEREAS, the Issuer, AMFM Operating and AMFM Holdings are parties to
that certain Registration Rights Agreement dated as of September 15, 1999 (the
"Original Agreement");
WHEREAS, AMFM Holdings has transferred to AMFM Operating all of the
Issuer's Common Stock held by AMFM Holdings;
WHEREAS, AMFM Inc., a Delaware corporation ("AMFM"), is the indirect
parent company of AMFM Operating;
WHEREAS, pursuant to a certain Agreement and Plan of Merger dated
October 2, 1999 (the "Merger Agreement"), by and among Clear Channel, CCU Merger
Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Clear Channel
("Merger Sub"), and AMFM, Merger Sub will be merged with and into AMFM (the
"Merger") and AMFM Operating will become a wholly-owned indirect subsidiary of
Clear Channel;
WHEREAS, the Issuer, AMFM Operating, AMFM Holdings and Clear Channel
desire to amend and restate the Original Agreement in connection with and upon
the consummation of the Merger, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good, valuable and binding
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms, as used herein, shall
have the following respective meanings:
"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. For purposes of this definition, "control" when used with respect to any
Person means the power to direct the
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management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the State of
Texas and/or the State of Louisiana generally are authorized or required by law
or other government actions to close.
"Commission" means the Securities and Exchange Commission or any
successor governmental body or agency.
"Common Stock" means the Issuer's Class A Common Stock, par value
$0.001 per share, and any capital stock into which such Common Stock thereafter
may be changed.
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.4.
"Effectiveness Date" means the date on which the Commission declares
the Shelf Registration Statement to be effective under the Securities Act, which
date shall not occur prior to the consummation of the Merger.
"Effectiveness Period" has the meaning ascribed thereto in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Date" has the meaning ascribed thereto in Section 2.1.
"Holder" means (i) AMFM Operating, (ii) any Affiliate of AMFM Operating
to whom Registrable Securities shall be transferred and who shall agree to be
bound by the terms of this Agreement, and (iii) any successor to any such Person
described in clauses (i) and (ii).
"Majority Holders" means Holders owning Registrable Securities
representing a majority of the Registrable Securities then owned by all of the
Holders.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"Prospectus" means the prospectus included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Shelf Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
"Purchase Agreement" means the Second Amended and Restated Stock
Purchase Agreement dated as of August 11, 1999 among Xxxxx Media Corp. (a
wholly-owned subsidiary of the Issuer), AMFM Operating and AMFM Holdings.
"Register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement or
statements or similar documents in compliance with the
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Securities Act and pursuant to Rule 415 under the Securities Act or any
successor rule providing for offering securities on a continuous basis and the
declaration or ordering of effectiveness of such registration statement or
document by the Commission.
"Registrable Securities" means, at any time, any shares of Common Stock
issued by the Issuer to AMFM Operating and AMFM Holdings pursuant to the
Purchase Agreement, and owned by the Holders (or any shares of stock or other
securities of the Issuer into which or for which such Common Stock may hereafter
be changed, converted or exchanged; any other shares or securities issued by the
Issuer to the Holders of such Common Stock; or any such shares of stock or other
securities of the Issuer into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transaction or event); provided, however, that Registrable Securities shall not
include any shares of Common Stock (i) the sale of which has been registered
pursuant to the Shelf Registration Statement and which shares have been sold
pursuant to the Shelf Registration Statement or (ii) which have been sold
pursuant to Rule 144 under the Securities Act.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article 2, including, without limitation, (i) all registration and filing fees,
(ii) 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 Rule 2720(b)(15) of the NASD
Conduct Rules, and of its counsel), as may be required by the rules and
regulations of the NASD, (iii) reasonable 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
Securities), (iv) rating agency fees, (v) printing expenses (including expenses
of printing certificates for the Registrable Securities in a form eligible for
deposit with the Depository Trust Company and of printing prospectuses or
prospectus supplements if the printing of prospectuses or prospectus supplements
is requested by a holder of Registrable Securities), (vi) messenger and delivery
expenses, (vii) the fees and expenses incurred in connection with any listing of
the Registrable Securities, (viii) reasonable fees and expenses of counsel for
the Issuer and its independent certified public accountants (including the
expenses for any required consents and opinions and of any special audit or
"cold comfort" letters required by or incident to such performance) and (ix)
out-of-pocket expenses of the Issuer incurred in connection with the
participation of officers of the Issuer in any marketing activities contemplated
by Section 2.6(j); provided, however, that in the event the Issuer registers
securities pursuant to Article 2 on Form S-1, Registration Expenses shall not
include the Issuer's costs of: (x) preparing and filing any post-effective
amendments to such Form S-1 that the Issuer would not otherwise have had to
prepare and file had the Issuer registered such securities on Form S-3, and (y)
converting the Form S-1 registration statement to a Form S-3 registration
statement pursuant to Section 2.9; provided, further, that Registration Expenses
shall not include Issuer's internal administration expenses and general overhead
incurred as a result of efforts by Issuer's employees in connection with any of
the foregoing.
"Registration Termination Date" means December 31, 2002.
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"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Affiliates" has the meaning ascribed thereto in Section 2.8.
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to the Shelf Registration Statement.
"Shelf Registration Statement" has the meaning ascribed thereto in
Section 2.1, and includes the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference in
such registration statement.
"Stockholders Agreement" means the Stockholders Agreement dated as of
September 15, 1999, by and among the Issuer, AMFM Operating, AMFM Holdings and
The Xxxxxx Family Limited Partnership, as amended by the First Amendment to
Stockholders Agreement dated July __, 2000, by and among the Issuer, AMFM
Operating, AMFM Holdings, Clear Channel and The Xxxxxx Family Limited
Partnership.
"Underwritten Offering" means any firmly underwritten offering in which
all or part of the Registrable Securities or securities convertible into,
exchangeable for, or exercisable for Registrable Securities are sold to an
underwriter for reoffering pursuant to the Shelf Registration Statement.
SECTION 1.2 INTERNAL REFERENCES. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 SHELF REGISTRATION.
(a) If the Issuer shall not have previously filed the Shelf
Registration Statement pursuant to the Original Agreement, then within ten (10)
Business Days after the effective date of this Agreement (the "Filing Date"),
the Issuer shall prepare and file with the Commission a Registration Statement
(the "Shelf Registration Statement") on Form S-3 (or if the Issuer is not then
eligible to use Form S-3, then Form S-1) (or any successor forms thereto) which
shall cover all of the Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act. The Issuer (i)
except as permitted by
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Section 3.1 of the Stockholders Agreement, shall not permit any securities other
than the Registrable Securities to be included in the Shelf Registration
Statement and (ii) shall use its best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, and to keep the Shelf Registration Statement
continuously effective under the Securities Act until the Registration
Termination Date, or such earlier date when all Registrable Securities cease to
be Registrable Securities for purposes of this Agreement (the "Effectiveness
Period").
(b) The Issuer shall (i) not later than three (3) Business
Days prior to the filing of the Shelf Registration Statement or any related
Prospectus or any amendment or supplement thereto, furnish to the Holders, their
counsel and any managing underwriters, copies of all such documents proposed to
be filed (but excluding for such purpose any documents incorporated by reference
into the Shelf Registration Statement or the Prospectus), which documents will
be subject to the review of such Holders, their counsel and such managing
underwriters, and copies of all "comment letters" with respect to any such filed
documents received by the Issuer from the Commission and (ii) cause its officers
and directors, counsel and independent certified public accountants to respond
to such inquiries as shall be necessary, in the reasonable opinion of respective
counsel to such Holders and such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Issuer shall not
file the Shelf Registration Statement or any such Prospectus or any amendments
or supplements thereto (but excluding for such purpose documents incorporated by
reference therein) to which the Majority Holders, their counsel or any managing
underwriters shall reasonably object, and will not request acceleration of the
Shelf Registration Statement without prior notice to such counsel. The Issuer
shall furnish the Holders and their counsel and any managing underwriters with
copies of any documents incorporated by reference into the Shelf Registration
Statement or the Prospectus promptly after filing any such document with the
Commission. The sections of the Shelf Registration Statement covering
information with respect to the Holders, the Holders' beneficial ownership of
securities of the Issuer or the Holders' intended method of disposition of
Registrable Securities shall conform to the written information provided to the
Issuer by each of the Holders specifically for use therein. The provisions of
this Section 2.1(b) shall be effective upon the execution hereof
(notwithstanding anything contained in Section 3.13 to the contrary) and also
shall be applicable to the Required Shelf Registration to be prepared and filed
pursuant to Section 2.1 of the Original Agreement, if any.
SECTION 2.2 UNDERWRITTEN OFFERING. Upon the election of the Majority
Holders, one or more offerings of Registrable Securities pursuant to the Shelf
Registration Statement may be effected in the form of an Underwritten Offering.
In such event, the underwriters that will administer the offering will be
selected by the Holders of a majority of the Registrable Securities included in
such offering. No Holder (or the Issuer, as provided in Section 3.1 of the
Stockholders Agreement) may participate in any Underwritten Offering hereunder
unless such Holder (or the Issuer) (i) agrees to sell its Registrable Securities
(or other securities) on the basis provided in any underwriting agreements
approved by the Holders of a majority of the Registrable Securities included in
such offering and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such arrangements.
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SECTION 2.3 INCLUSION OF COMMON STOCK BY ISSUER. Except as provided in
Section 3.1 of the Stockholders Agreement, the Issuer shall not permit any
securities other than the Registrable Securities to be included in the Shelf
Registration Statement. If the Issuer elects to include additional shares of
Common Stock in an Underwritten Offering pursuant to Section 3.1 of the
Stockholders Agreement, then the Holders of the Registrable Securities to be
offered in an Underwritten Offering may require that any such additional shares
of Common Stock to be included by the Issuer in such offering be sold and issued
on the same terms and conditions as the Registrable Securities that are included
therein.
SECTION 2.4 CERTAIN DELAY RIGHTS. If at any time while the Shelf
Registration Statement is effective the Issuer provides written notice to each
Holder that in the good faith and reasonable judgment of the Issuer's Board of
Directors, it would be materially disadvantageous to the Issuer (because the
sale of Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or prospectus
supplement would materially interfere with (i) any acquisition or other material
third-party transaction in connection with which a registration of securities
under the Securities Act for the Issuer's account is then intended or (ii) the
public disclosure of which at the time would be materially prejudicial to the
Issuer (a "Disadvantageous Condition")) for sales of Registrable Securities
thereunder to then be permitted, and setting forth the general reasons for such
judgment, the Issuer may refrain from maintaining current the Prospectus
contained in the Shelf Registration Statement until such Disadvantageous
Condition no longer exists (notice of which the Issuer shall deliver in writing
to each Holder on the first date such Disadvantageous Condition no longer
exists). With respect to each Holder, upon the receipt by such Holder of any
such notice of a Disadvantageous Condition in connection with the Shelf
Registration Statement, (x) such Holder shall forthwith discontinue use of the
Prospectus under the Shelf Registration Statement and shall suspend sales of
Registrable Securities until such Disadvantageous Condition no longer exists and
(y) if so directed by the Issuer by notice as aforesaid, such Holder will
deliver to the Issuer all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus then covering such Registrable Securities
at the time of receipt of such notice as aforesaid. Notwithstanding anything
else contained in this Agreement, (X) neither the Filing Date nor the
Effectiveness Date of the Shelf Registration Statement may be delayed pursuant
to this Section 2.4 (Y) there shall be no suspension of sales of Registrable
Securities pursuant to this Section 2.4 at any time during the sixty (60) day
period commencing on the Effectiveness Date or at any time during the ninety
(90) day period preceding the Registration Termination Date, and (Z) the
suspension of sales of Registrable Securities pursuant to this Section 2.4 shall
not exceed a total of sixty (60) days in the aggregate in any twelve (12) month
period.
SECTION 2.5 EXPENSES. Except as provided herein, the Holders shall pay
all Registration Expenses with respect to the Shelf Registration Statement and
shall promptly reimburse the Issuer for any such expenses paid by the Issuer
upon presentation of reasonably detailed invoices therefor, provided such
registration statement becomes effective in accordance with the terms of this
Agreement. Notwithstanding the foregoing, if the Issuer shall include in an
Underwritten Offering additional shares of Common Stock for the account of the
Issuer in accordance with Section 3.1 of the Stockholders Agreement, then (i)
the Issuer shall pay (or reimburse the Holders, as applicable) a pro rata share
of the Registration Expenses (based on the ratio that the number of additional
shares of Common Stock actually sold for the Issuer's account bears to the
aggregate number of shares actually sold in the Underwritten Offering), and (ii)
the
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Issuer shall be responsible for all underwriting discounts and commissions,
selling or placement agent or broker fees and commissions, and transfer taxes,
if any, in connection with any sale of securities by the Issuer.
SECTION 2.6 REGISTRATION AND QUALIFICATION. If and whenever the Issuer
is required to effect the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Issuer shall as promptly as
practicable:
(a) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to the Shelf Registration
Statement and the Prospectus used in connection therewith as may be necessary to
keep the Shelf Registration Statement effective, including any amendment or
supplement with respect to an Underwritten Offering of Registrable Securities
and including any amendment or supplement to reflect any transfer of Registrable
Securities to any subsequent Holder (which will have the right to be named as a
selling shareholder in the Shelf Registration Statement), at all times during
the Effectiveness Period, and, during such period, comply with the provisions of
the Securities Act applicable to the Issuer in order to permit the disposition
by the Holders of all Registrable Securities;
(b) furnish to the Holders of Registrable Securities and to
any underwriter of such Registrable Securities (i) such number of conformed
copies of the Shelf Registration Statement and of each such amendment and
supplement thereto (in each case including financial statements and schedules,
and all exhibits), (ii) such number of copies of the Prospectus included in the
Shelf Registration Statement (including each preliminary prospectus), in
conformity with the requirements of the Securities Act, and (iii) such documents
incorporated by reference in the Shelf Registration Statement or Prospectus as
the Holders of Registrable Securities or such underwriter may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
such Holder or the sale of such securities by such underwriter (it being
understood that, subject to Section 2.4 of this Agreement and the requirements
of the Securities Act and applicable state securities laws, the Issuer consents
to the use of the Prospectus and any amendment or supplement thereto by each
Holder of Registrable Securities and any underwriter of such Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Shelf Registration Statement of which such Prospectus,
amendment or supplement is a part);
(c) in the case of any Underwritten Offering, furnish to each
Selling Holder and any underwriter of Registrable Securities an opinion of
counsel for the Issuer and "cold comfort" letters and updates thereof signed by
the independent public accountants who have audited the Issuer's financial
statements included in the Shelf Registration Statement, in each such case
covering substantially such matters with respect to such registration statement
(and the prospectus included therein) and the related offering as are
customarily covered in opinions of issuer's counsel with respect thereto and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities, together with any consents required in connection therewith;
(d) promptly notify each Holder and each underwriter of
Registrable Securities in writing (i) at any time when a prospectus relating to
a registration pursuant to this Agreement is required to be delivered under the
Securities Act, of the happening of any event as
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a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (ii) of any request by the Commission or any other
regulatory body having jurisdiction for any additional information or amendment
or supplement to the Shelf Registration Statement or Prospectus, and in either
such case, at the request of any Holder or underwriter, promptly prepare and
furnish to each Holder and underwriter a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading;
(e) cause all such Registrable Securities covered by such
registration to be listed on the Nasdaq National Market, or if other than the
Nasdaq National Market, on the principal securities exchange or automated
interdealer quotation system on which the Common Stock is then listed or
included for quotation;
(f) cooperate with each Selling Holder and each underwriter
participating in the disposition of Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(g) subject to Section 2.4 of this Agreement, timely file all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act during the period when a prospectus is
required to be delivered under the Securities Act;
(h) subject to Section 2.4 of this Agreement, promptly prepare
and file with the Commission any amendments or supplements to the Shelf
Registration Statement or Prospectus which, in the opinion of the Issuer's
counsel or the managing underwriter, are required in connection with the
distribution of the Registrable Securities;
(i) advise each Selling Holder, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of the Shelf Registration Statement
or the initiation or threatening of any proceeding for such purpose and promptly
use its reasonable 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;
(j) use reasonable best efforts to assist the Holders in the
marketing of the Registrable Securities in connection with any Underwritten
Offering hereunder (including but not limited to using reasonable best efforts
to have officers of the Issuer attend "road shows" and analyst or investor
presentations scheduled in connection with such registration);
(k) make generally available to its security holders as soon
as practicable, but not later than ninety (90) days after the close of the
period covered thereby, an earning statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve
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(12) month period beginning not later than the first day of the Issuer's fiscal
quarter next following the effective date of the Shelf Registration Statement;
(l) to the extent applicable, use its reasonable best efforts
to (i) register and qualify the Registrable Securities under the securities or
"blue sky" laws of such jurisdictions as any Holder may reasonably request, (ii)
prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Effectiveness Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications and as may be
necessary to maintain the effectiveness thereof at all times during the
Effectiveness Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale by the Holders in such
jurisdictions (provided that the Issuer shall not be required in connection
therewith or as a condition thereto to qualify generally to do business or file
a general consent to service of process in any jurisdiction where it would not
otherwise be required to qualify but for this Section 2.6(l));
(m) cooperate with each Holder and the managing underwriters
to facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legends) representing Registrable Securities sold pursuant to
the Shelf Registration Statement or in a transaction pursuant to Rule 144 and
enable such certificates to be in such denominations or amounts as any Holder
and the managing underwriters may reasonably request and registered in such
names as such Holder and the managing underwriters may reasonably request. The
Issuer shall give appropriate instructions to the Issuer's transfer agent to
cause the transfer agent to deliver certificates representing the Registrable
Securities without any restrictive legends upon receipt of the Holder's
certification that such Registrable Securities have been sold pursuant to the
Shelf Registration Statement or in a transaction pursuant to Rule 144 and shall
cause the Issuer's legal counsel to deliver to the transfer agent an opinion in
customary form as required to remove such restrictive legends provided that such
counsel may reasonably require such certifications from Holders; and
(n) within two (2) Business Days after the Shelf Registration
Statement is declared effective by the Commission, deliver, and shall cause the
Issuer's legal counsel to deliver, to the transfer agent for such Registrable
Securities, confirmation that the Shelf Registration Statement has been declared
effective by the Commission.
The Issuer may require each Selling Holder to furnish to the Issuer
such information regarding the Selling Holder and the distribution of such
Registrable Securities as the Issuer may from time to time reasonably request in
writing and such other information as may be legally required in connection with
such registration. Each Selling Holder also agrees to notify the Issuer of any
event relating to the Selling Holder that occurs that would require the
preparation of a supplement or amendment to the Prospectus so that the
information furnished or required to be furnished by such Selling Holder that is
contained in the Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
In no event shall the Issuer be required to amend the Shelf
Registration Statement filed after it has become effective or to amend or
supplement the Prospectus to permit the continued
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disposition of shares of Common Stock owned by a Selling Holder registered under
the Shelf Registration Statement at any time after the Effectiveness Period.
Each Selling Holder agrees that, upon receipt of any notice from the
Issuer of the happening of any event of the kind described in paragraph (d)(i)
above, the Selling Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until the Selling
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (d) above, and, if so directed by the Issuer, the
Selling Holder will deliver to the Issuer (at the Issuer's expense) all copies,
other than permanent file copies then in the Selling Holder's possession, of the
prospectus covering such Registrable Securities at the time of receipt of such
notice.
SECTION 2.7 UNDERWRITING; DUE DILIGENCE.
(a) If requested by the underwriters for any Underwritten
Offering of Registrable Securities pursuant to this Article 2, the Issuer shall
enter into an underwriting agreement with such underwriters for such offering,
which agreement will contain such representations and warranties by the Issuer
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, and confirm the same if and
when requested in accordance with customary practice. If an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the Selling Holders and the underwriters than
those set forth in Section 2.8 of this Agreement (or such other provisions and
procedures acceptable to the managing underwriters and Holders of a majority of
Registrable Securities participating in such Underwritten Offering).
(b) In connection with the preparation and filing of the Shelf
Registration Statement pursuant to this Article 2, the Issuer shall give the
Holders of such Registrable Securities and the underwriters, if any, and their
respective counsel and accountants, such reasonable and customary access to its
books, records and properties and such opportunities to discuss the business and
affairs of the Issuer with its officers and the independent public accounts who
have certified the financial statements of the Issuer as shall be necessary, in
the reasonable opinion of such Holders and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act; provided that (i) each Holder and the underwriters and their
respective counsel and accountants shall have entered into a confidentiality
agreement reasonably acceptable to the Issuer and (ii) the Holders of such
Registrable Securities and the underwriters and their respective counsel and
accountants shall use their reasonable best efforts to minimize the disruption
to the Issuer's business and coordinate any such investigation of the books,
records and properties of the Issuer and any such discussions with the Issuer's
officers and accountants so that all such investigations occur at the same time
and all such discussions occur at the same time.
(c) The Issuer shall be subject to the lock-up provisions
contained in Section 3.2 of the Stockholders Agreement.
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SECTION 2.8 INDEMNIFICATION.
(a) The Issuer agrees to indemnify and reimburse, to the
fullest extent permitted by law, each Selling Holder, and each Selling Holder's
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls the Selling Holder (within the meaning of the
Securities Act or the Exchange Act) (collectively, the "Seller Affiliates"), and
each underwriter, if any, and each person who controls each such underwriter
(within the meaning of the Securities Act or the Exchange Act) against any and
all losses, claims, damages, liabilities, and expenses, joint or several
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.8(c) below) based upon, arising out of, related
to or resulting from any untrue or allegedly untrue statement of a material fact
contained in the Shelf 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, in light of the circumstances under which they
were made, not misleading, except insofar as the same are made in reliance upon
and in conformity with information furnished in writing to the Issuer by such
Selling Holder or any Seller Affiliate specifically for use therein or arise
from such Selling Holder's or any Seller Affiliate's failure to deliver a copy
of the Shelf Registration Statement or Prospectus or any amendments or
supplements thereto after the Issuer has furnished such Selling Holder or Seller
Affiliate with a sufficient number of copies of the same. The reimbursements
required by this Section 2.8(a) will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
(b) Each Selling Holder will jointly and severally indemnify
the Issuer and its directors and officers and each of its employees, advisors,
agents, representatives, partners, officers, and directors and each Person who
controls the Issuer (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 2.8(c) below) resulting from: (i) any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
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, in light of the circumstances under which they were made,
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 a Selling Holder or any of its Seller
Affiliates specifically for inclusion in the Shelf Registration Statement,
Prospectus, preliminary prospectus, amendments or supplements; or (ii) a Selling
Holder's or any Seller Affiliate's failure to deliver a copy of the Shelf
Registration Statement or Prospectus or any amendments or supplements thereto
after the Issuer has furnished the Selling Holder or Seller Affiliate with a
sufficient number of copies of the same; provided, however, that such liability
will be limited to the net amount received by the Selling Holders from the sale
of Registrable Securities pursuant to the Shelf Registration Statement;
provided, further, that the Selling Holders shall not be liable in any such case
to the extent that, prior to the filing of the Shelf Registration Statement or
Prospectus or amendment thereof or supplement thereto, the Selling Holders
furnished in writing to the Issuer 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 Issuer.
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(c) Any Person entitled to indemnification hereunder will 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 except to the extent such failure
prejudiced the indemnifying party) and permit such indemnifying party to assume
the defense of such claim; 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 (i) the indemnifying party
has agreed to pay such fees or expenses, (ii) the indemnifying party shall have
failed to assume the defense of such claim or (iii) in the reasonable opinion of
counsel to such indemnified party, a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim. 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 or delayed). The indemnifying party shall not settle or
otherwise compromise the applicable claim unless (A) such settlement or
compromise contains a full and unconditional release of the indemnified party or
(B) the indemnified party otherwise consents in writing. The indemnifying party
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 in the reasonable judgment of any indemnified party, a conflict of
interest may exist between the indemnifying party and any indemnified party with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the reasonable fees and disbursements of one counsel for such indemnified
party.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.8(a) or Section 2.8(b) 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 2.8(d) were determined by pro
rata allocation (even if the Selling 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 2.8(d). 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 2.8(c) above, defending any
such action or claim. Notwithstanding the provisions of this Section 2.8(d), no
Holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such Selling Holder with respect to the
sale of any Registrable Securities exceeds the amount of damages which such
Selling Holder has otherwise
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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 Selling Holders' obligations in
this Section 2.8(d) to contribute shall be joint and several in proportion to
the amount of Registrable Securities registered by them.
If indemnification is available under this Section 2.8, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.8(a) and Section 2.8(b) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.8(d) subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.8(b).
The indemnification and contribution provided for under this
Agreement shall be in addition to any liability which any party may otherwise
have to any other party and shall 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 the Common Stock and the termination of this Agreement.
SECTION 2.9 FORM S-3 ELIGIBILITY; CONVERSION. In the event that the
Shelf Registration Statement is filed on Form S-1 because the Issuer does not,
at the time of such registration, meet the registrant eligibility and
transaction requirements for the use of Form S-3 (for secondary offerings), the
Issuer shall convert such Form S-1 to a Form S-3 immediately upon its
satisfaction of the registrant eligibility and transaction requirements for the
use of Form S-3. Upon such conversion, the Issuer shall file all reports
required to be filed by the Company with the Commission in a timely manner so as
to maintain such eligibility for the use of Form S-3.
SECTION 2.10 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission that may permit the
sale of the Registrable Securities to the public without registration, the
Issuer agrees to use its reasonable best efforts to:
(a) make and keep public information regarding the Issuer
available as those terms are understood and defined in Rule 144 under the
Securities Act;
(b) file with the Commission in a timely manner all reports
and other documents required of the Issuer under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder forthwith upon written request a
written statement by the Issuer as to its compliance with the reporting
provisions contained in Rule 144(c) under the Securities Act, a copy of the most
recent annual or quarterly report of the Issuer, and such other reports and
documents so filed as any Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to sell any of the
Registrable Securities without registration.
The Issuer shall give appropriate instructions to the Issuer's transfer
agent to cause the transfer agent to deliver certificates representing the
Registrable Securities without any restrictive legends upon receipt of the
Holder's certification that such Registrable Securities have been sold pursuant
to Rule 144 under the Securities Act. Each Holder shall cause its legal
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counsel to deliver to the transfer agent for the Registrable Securities an
opinion in customary form as may be required to remove such restrictive legends
following a sale pursuant to Rule 144.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and upon
the effectiveness of this Agreement in accordance with Section 3.13, this
Agreement shall supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof,
including, without limitation, the Original Agreement and the letter agreement
dated as of June 1, 2000 among the Issuer, AMFM and Clear Channel.
SECTION 3.2 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
are not assignable to any Person other than another Holder. Whether or not an
express assignment has been made, provisions of this Agreement that are for the
Holders' benefit as the Holders of any Common Stock are, except as otherwise
expressly provided herein, also for the benefit of, and enforceable by, all
subsequent Holders of such Common Stock, except as otherwise expressly provided
herein. This Agreement shall be binding upon the Issuer, each Holder, and,
except as otherwise expressly provided herein, their respective heirs, devisees,
successors and permitted assigns.
SECTION 3.3 AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
Issuer and Holders representing a majority of the Registrable Securities then
held by all Holders.
SECTION 3.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated by written notice from
the affected Holder to the Issuer).
SECTION 3.5 REMEDIES. The Issuer recognizes and agrees that the Holders
of Registrable Securities shall not have an adequate remedy at law if the Issuer
fails to comply with the provisions of this Agreement, and that damages will not
be readily ascertainable, and the Issuer expressly agrees that in the event of
such failure any Holder of Registrable Securities shall be entitled to seek
specific performance of the Issuer's obligations hereunder.
SECTION 3.6 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or
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portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
SECTION 3.7 NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 3.8 NO THIRD PARTY BENEFICIARIES. Except as expressly provided
in Sections 2.8 and 3.2, this Agreement is not intended to be for the benefit
of, and shall not be enforceable by, any Person who or which is not a party
hereto; provided, that, this Agreement is also intended to be for the benefit of
and is enforceable by each Holder.
SECTION 3.9 SEVERAL OBLIGATIONS. Except as set forth in Section 2.8,
the obligations of the Holders herein are several and not joint. No Holder shall
be responsible for the performance or failure on the part of any other Holder to
perform its obligations.
SECTION 3.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 3.11 DESCRIPTIVE HEADINGS. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
SECTION 3.12 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same agreement.
SECTION 3.13 EFFECTIVE DATE; CONSUMMATION OF MERGER. The terms and
conditions of this Agreement shall become effective and enforceable only upon
the consummation of the Merger. In the event that the Merger has not been
consummated on or before March 31, 2001, or if the Merger Agreement is
terminated prior to March 31, 2001 then, unless the parties hereto mutually
agree to an extension hereof, this Agreement shall be null and void and the
Original Agreement shall continue in accordance with its terms as if this
Agreement had not been executed and delivered.
SECTION 3.14 GUARANTY BY CLEAR CHANNEL. Clear Channel agrees to
guaranty the performance of all obligations of the Holders and the Selling
Holders hereunder.
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IN WITNESS WHEREOF, the Issuer and the Holders have caused this
Agreement to be duly executed as of the day and year first above written.
ISSUER:
XXXXX ADVERTISING COMPANY
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
With copies to:
Xxxxxx Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
HOLDERS:
AMFM OPERATING INC.
(f/k/a CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES)
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
000 Xxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
AMFM HOLDINGS INC.
(f/k/a CHANCELLOR MEZZANINE HOLDINGS
CORPORATION)
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
000 Xxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
CLEAR CHANNEL COMMUNICATIONS, INC.
By:
--------------------------------------
Name:
------------------------------
Title:
-----------------------------
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Address:
With copies to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Mount
Fax: (000) 000-0000
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