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EXHIBIT 10.21.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Stockholders Agreement") dated as of
October 16, 1996, is entered into by and among Capstar Broadcasting Partners,
Inc., a Delaware corporation (the "Company"), and 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.
"Additional Securities" shall have the meaning set forth in Section 7.1
hereof.
"Advice" shall have the meaning provided in Section 3.5 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 R. Xxxxxx
Xxxxx shall object to such determination within 10 days after being notified
thereof by HMTF, R. Xxxxxx Xxxxx shall within such ten-day period select an
Independent Financial Expert to determine the fair market value of such
Securities on behalf of R. Xxxxxx Xxxxx. In the event that the Independent
Financial Experts selected by each of HMTF and R. Xxxxxx Xxxxx 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 R.
Xxxxxx Xxxxx shall be paid by R. Xxxxxx Xxxxx, and the cost of the Independent
Financial Expert, if any, mutually selected by the two Independent Financial
Experts appointed by each of HMTF and R. Xxxxxx Xxxxx shall be paid one-half by
HMTF and one-half by R. Xxxxxx Xxxxx.
"Authorization Date" shall have the meaning set forth in Section 5.3
hereof.
"Business Day" means a day that is not a Legal Holiday.
"Capstar L.P." means Capstar Broadcasting Partners, L.P., a Delaware
limited partnership.
"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
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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, 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, other than the Warrant, 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.
"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" shall have the meaning set forth in Section 3.1.1
hereof.
"Demand Request" shall have the meaning set forth in Section 3.1.1.
hereof.
"Disqualifying Event" shall mean the removal of R. Xxxxxx Xxxxx as a
director of the Company or any of its Subsidiaries for cause under the General
Corporation Law of the State of Delaware.
"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 pursuant to one or more Demand Registrations pursuant to Section 3
hereof, (iii) securities registered on Form S-8 or any similar successor form
and (iv) 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
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passage of time or the occurrence of future events, upon the exercise,
conversion, or exchange of (i) all then outstanding Common Stock Equivalents
and (ii) the Warrant.
"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 (other than R. Xxxxxx Xxxxx) and trusts for the
primary benefit of such family members).
"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 3.4 hereof.
"Legal Holiday" shall have the meaning provided in Section 9.2 hereof.
"Material Adverse Effect" shall have the meaning provided in Section
3.1.4 hereof.
"NASD" shall have the meaning provided in Section 3.4 hereof.
"New Shares" shall have the meaning set forth in Section 8.1 hereof.
"New Warrant" shall have the meaning set forth in Section 8.1 hereof.
"Non-HMC Group Holder" means each Holder other than Capstar L.P.
"Offer Notice" shall have the meaning set forth in Section 7.1 hereof.
"Offered Securities" shall have the meaning provided in Section 5.3
hereof.
"Participation Offer" shall have the meaning provided in Section 4.2
hereof.
"Permitted Transfer" means (i) a transfer upon the death of a Holder to
such Holder's executors, administrators, testamentary trustees, legatees or
beneficiaries, (ii) a gift made by a Holder to the spouse or natural or
adoptive children or stepchildren of such Holder, or to a trust established for
the benefit of one or more of such persons, (iii) a transfer made by Holder to
a corporation at least 80% of the capital stock of which is owned by such
Holder, or (iv) a pledge or hypothecation of shares of Common Stock by a Holder
to a bank or other financial institution in connection with financing for the
Company; provided that in each case the proposed transferee (x) shall execute
and deliver to the Company and HMTF a written agreement pursuant to which such
transferee agrees to be bound by this Agreement and (y) except in the case of
clause (i) or (ii) above, certifies to the reasonable satisfaction of the
Company that such transferee is an Accredited Investor.
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"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.
"Preemptive Rights Offer" shall have the meaning set forth in Section
7.1 hereof.
"Preemptive Rights Transaction" shall have the meaning set forth in
Section 7.1 hereof.
"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 3.4 hereof.
"Registrable Shares" means at any time (i) the Common Stock of the
Company owned by the HMC Group or the Holders, whether owned on the date hereof
or acquired hereafter and (ii) the Warrant Shares; provided, however, that
Registrable Shares shall not include any shares (x) the sale of which has been
registered pursuant to the Securities Act and which shares have been sold
pursuant to such registration, or (y) which have been sold to the public
pursuant to Rule 144 of the SEC under the Securities Act.
"Registration Expenses" shall have the meaning provided in Section 3.6
hereof.
"Regulation D" means Regulation D promulgated under the Securities Act
by the SEC.
"Requesting Holder" shall have the meaning provided in Section 3.1.5
hereof.
"Required Filing Date, shall have the meaning provided in Section
3.1.1(b) hereof.
"Required Holders" means Holders who then own beneficially more than 66-
2/3% of the aggregate number of Registrable Shares.
"Rights Holder" shall have the meaning set forth in Section 7.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Common Stock, the Warrant Shares, the Warrant and
any New Warrant.
"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 3.7.1
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.
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"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 3.5
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.
"Warrant" means that certain Warrant dated October 16, 1996, for
9,300,000 shares of Common Stock, issued by the Company to R. Xxxxxx Xxxxx.
"Warrant Shares" means shares of Common Stock issuable to a Holder upon
the exercise of the Warrant or any New Warrant.
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
(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"); provided,
however, that so long as (A) no Disqualifying Event shall have occurred and (3)
either (i) R. Xxxxxx Xxxxx shall be serving as President and Chief Executive
Officer of the Company or (ii) R. Xxxxxx Xxxxx and his Affiliates (provided
that R. Xxxxxx Xxxxx shall have all voting rights with respect to the shares of
Common Stock held by such Affiliates) shall own of record and beneficiary
Common Stock and Warrant Shares equal to not less than 3% of the Fully-Diluted
Common Stock, appropriately adjusted for stock splits, stock dividends and
stock combinations, one of the HMC Group Designees shall be R. Xxxxxx Xxxxx.
Each Holder shall vote his or its shares of Common Stock at any regular or
special meeting
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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. In order to effectuate the provisions of this
Section 2, each Holder hereby agrees that when any action or vote is required
to be taken by such Holder pursuant to this Agreement, such Holder shall use
his or its best efforts to call, or cause the appropriate officers and
directors of the Company to call, a special or annual meeting of stockholders
of the Company, as the case may be, or execute or cause to be executed a
consent in writing in lieu of any such meetings pursuant to Section 228(a) of
the General Corporation Law of the State of Delaware.
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; provided,
however, that R. Xxxxxx Xxxxx may not be removed as a Director without cause so
long as (i) the right of the HMC Group to designate directors under Section
2.1.1 shall not have been terminated pursuant to Section 2.1.3 and (ii) he is
entitled to be an HMC Group Designee under Section 2.1.1.
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.
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,
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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.
ARTICLE 3
REGISTRATION RIGHTS
Section 3.1 Demand Registration.
3.1.1 Request for Registration.
(a) At any time after the consummation of a Qualified IPO, any
Holder or Holders may request the Company, in writing (a "Demand
Request"), to effect the registration under the Securities Act of all or
part of its or their Registrable Shares (a "Demand Registration");
provided that the Registrable Shares proposed to be sold by the Holders
requesting a Demand Registration (the "Requesting Holders," which term
shall include parties deemed "Requesting Holders" pursuant to Section
3.1.5 hereof) represent, in the aggregate, more than 35% of the total
number of Registrable Shares held by all Holders.
(b) Each Demand Request shall specify the number of
Registrable Shares proposed to be sold. Subject to Section 3.1.6, the
Company shall file the Demand Registration within 90 days after
receiving a Demand Request (the "Required Filing Date") and shall use
all commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing;
provided, that the Company need effect only three Demand Registrations;
provided, further, that if any Registrable Shares requested to be
registered pursuant to a Demand Request under this Section 3.1 are
excluded from a registration pursuant to Section 3.1.4 below, the
Holders shall have the right, with respect to each such exclusion, to
one additional Demand Registration under this Section 3.1 with respect
to such excluded Registrable Shares.
3.1.2 Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case
such demand will count as a Demand Registration unless the Requesting Holders
pay all Registration Expenses, as hereinafter defined, in connection with such
withdrawn registration); provided, that if, after it has become effective, an
offering of Registrable Shares pursuant to a registration is interfered with by
any stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
3.1.3 Selection of Underwriters. The offering of Registrable Shares
pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holders of a majority of the Registrable
Shares to be registered in a Demand Registration shall select the investment
banking firm or firms to manage the underwritten offering; provided that such
selection shall be subject to the consent of the Company, which consent shall
not be unreasonably withheld.
3.1.4 Priority on Demand Registrations. No securities to be sold for
the account of any Person (including the Company) other than a Requesting
Holder shall be included in a Demand Registration unless the managing
underwriter or underwriters shall advise the Company or the Requesting Holders
in writing
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that the inclusion of such securities will not materially and adversely affect
the price or success of the offering (a "Material Adverse Effect").
Furthermore, in the event the managing underwriter or underwriters shall advise
the Company or the Requesting Holders that even after exclusion of all
securities of other Persons pursuant to the immediately preceding sentence, the
amount of Registrable Shares proposed to be included in such Demand
Registration by Requesting Holders is sufficiently large to cause a Material
Adverse Effect, the Registrable Shares of the Requesting Holders to be included
in such Demand Registration shall equal the number of shares which the Company
is so advised can be sold in such offering without a Material Adverse Effect
and such shares shall be allocated pro rata among the Requesting Holders on the
basis of the number of Registrable Shares requested to be included in such
registration by each such Requesting Holder.
3.1.5 Rights of Nonrequesting Holders. Upon receipt of any Demand
Request, the Company shall promptly (but in any event within 10 days) give
written notice of such proposed Demand Registration to all other Holders, who
shall have the right, exercisable by written notice to the Company within 20
days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Securities as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed
to be "Requesting Holders" for purposes of this Section 3.1.
3.1.6 Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 3.1 until a
date not later than 180 days after the Required Filing Date (or, if longer, 180
days after the effective date of the registration statement contemplated by
clause (ii) below) if (i) at the time the Company receives the Demand Request,
the Company or any of its Subsidiaries are engaged in confidential negotiations
or other confidential business activities, disclosure of which would be
required in such registration statement (but would not be required if such
registration statement were not filed), and the Board of Directors of the
Company determines in good faith that such disclosure would be materially
detrimental to the Company and its stockholders or would have a material
adverse effect on any such confidential negotiations or other confidential
business activities, or (ii) prior to receiving the Demand Request, the Board
of Directors had determined to effect a registered underwritten public offering
of the Company's securities for the Company's account and the Company had taken
substantial steps (including, but not limited to, selecting a managing
underwriter for such offering) and is proceeding with reasonable diligence to
effect such offering. A deferral of the filing of a registration statement
pursuant to this Section 3.1.6 shall be lifted, and the requested registration
statement shall be filed forthwith, if, in the case of a deferral pursuant to
clause (i) of the preceding sentence, the negotiations or other activities are
disclosed or terminated, or, in the case of a deferral pursuant to clause (ii)
of the preceding sentence, the proposed registration for the Company's account
is abandoned. In order to defer the filing of a registration statement
pursuant to this Section 3.1.6, the Company shall promptly (but in any event
within 10 days), upon determining to seek such deferral, deliver to each
Requesting Holder a certificate signed by an executive officer of the Company
stating that the Company is deferring such filing pursuant to this Section
3.1.6 and a general statement of the reason for such deferral and an
approximation of the anticipated delay. Within 20 days after receiving such
certificate, the holders of a majority of the Registrable Shares held by the
Requesting Holders and for which registration was previously requested may
withdraw such Demand Request by giving notice to the Company; if withdrawn, the
Demand Request shall be deemed not to have been made for all purposes of this
Agreement. The Company may defer the filing of a particular registration
statement pursuant to this Section 3.1.6 only once.
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Section 3.2 Piggyback Registrations.
3.2.1 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 or 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 3.2.2 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 3.2.1 by giving written notice to the Company of such withdrawal.
Subject to Section 3.2.2 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.
3.2.2 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 cause 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 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 who have requested that their shares be
included in such registration statement. If as a result of the provisions of
this Section 3.2.2 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
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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.
3.3 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.
3.4 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:
(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
3.5 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
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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;
(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
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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;
(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;
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(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.
3.5 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
3.4(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 3.4(ii) hereof shall be extended by the number of days
during the period from and including the date of the giving of the 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.
3.6 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 expressed
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.
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3.7 Indemnification.
3.7.1 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 3.7.3) 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 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 3.7.1 will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
3.7.2 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 3.7.3) 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
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supplement thereto which corrected or made not misleading information
previously furnished to the Company.
3.7.3 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 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.
3.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 3.7.1 or Section 3.7.2 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 3.7.4 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 3.7.4. 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 3.7.3, defending any such action or claim. Notwithstanding the
provisions of this Section 3.7.4, 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
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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 3.7.4 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 3.7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 3.7.1 and Section 3.7.2 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 3.7.4.
3.7.5 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.
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.
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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 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, only Co-Sellers who have certified to the
reasonable satisfaction of HMTF that they are Accredited Investors shall be
entitled to participate in such transfer, 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 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 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.
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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 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 subject to Sections 4.1 or 4.2 (it
being understood that transactions pursuant to such Sections are not subject to
this Article 5) hereof 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. R. Xxxxxx Xxxxx shall not
Transfer, convey, assign or hypothecate any Securities to any Affiliate of R.
Xxxxxx Xxxxx or any member of R. Xxxxxx Xxxxx' family unless R. Xxxxxx Xxxxx
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 ___, 1996, A COPY OF WHICH MAY BE OBTAINED FROM CAPSTAR BROADCASTING
PARTNERS, INC. AT ITS PRINCIPAL EXECUTIVE OFFICES.
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Section 5.3 Right of First Refusal.
5.3.1 Right of First Refusal. Prior to any Transfer or attempted
Transfer by any Non-HMC Group Holder of any Securities or Common Stock
Equivalents (the "Offered Securities") other than pursuant to a registration
under the Securities Act or a Permitted Transfer, the Non-HMC Group Holder of
such Offered Securities shall (i) give prior written notice (a "Transfer
Notice") to HMTF of such Non-HMC Group 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 Non-HMC Group 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 Non-HMC Group
Holder within such 15-day period. The Non-HMC Group 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 Non-HMC Group 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 election, such Non-HMC Group 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 Non-HMC Group 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 Non-HMC Group Holder reasonably believes that each proposed
transferee is a "qualified institutional buyer" and that such Non-HMC Group
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 Non-HMC Group 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 Non-HMC Group 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 Non-
HMC Group Holder will be deemed to represent and warrant to HMTF (or, if
applicable, its assignee) that the transferred Offered Securities are owned by
such Non-HMC Group Holder free and clear of all liens, adverse claims, and
other encumbrances other than as provided in this Stockholders Agreement. The
Non-HMC Group Holder will promptly perform, whether before or after any such
closing, such additional acts (including without
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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 provision 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.
ARTICLE 6
PURCHASE OPTION
Section 6.1. Purchase Option.
6.1.1 Purchase Option. Unless Section 4.1 or 4.2 is otherwise
applicable, if (i), and at such time as, R. Xxxxxx Xxxxx' 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, R. Xxxxxx Xxxxx (or the executor or administrator of R.
Xxxxxx Xxxxx' estate, in the event of R. Xxxxxx Xxxxx' death, or R. Xxxxxx
Xxxxx' legal representative in the event of his incapacity) (hereinafter,
collectively with R. Xxxxxx Xxxxx, 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, Warrants and/or Common Stock Equivalents held by the Grantor
(such shares of Common Stock, Warrants 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 120 days from the date R. Xxxxxx
Xxxxx 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
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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.
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.
ARTICLE 7
PREEMPTIVE RIGHTS
7.1 Rights to Participate in Future Sales. In case the Company
proposes to issue or sell any shares of Common Stock to any member of the HMC
Group (the "Additional Securities"), the Company shall, no later than twenty
days prior to the consummation of such transaction (a "Preemptive Rights
Transaction"), give notice in writing (the "Offer Notice") to R. Xxxxxx Xxxxx
(the "Rights Holder") of such Preemptive Rights Transaction. The Offer Notice
shall describe the proposed Preemptive Rights Transaction and contain an offer
(the "Preemptive Rights Offer") to sell to Rights Holder if he certifies (to
the reasonable satisfaction of the Company) that the Rights Holder is an
Accredited Investor, at the same price and for the same consideration to be
paid by the proposed purchaser, all of the Rights Holder's pro rata portion of
the Additional Securities (which shall be based on the ratio that the
Fully-Diluted Common Stock held by the Rights Holder, excluding, for the
purposes of such calculation, any shares of Common Stock issuable upon exercise
of any Common Stock Equivalents granted pursuant to any employee, officer or
director benefit plan or arrangement, bears to the Fully-Diluted Common Stock
held by the HMC Group). If the Rights Holder fails to accept such offer by
written notice five days after his receipt of the Offer Notice, the Company may
proceed with the proposed issue or sale of the Additional Securities, free of
any right on the part of the Rights Holder under this Section 7.1 in respect
thereof. Notwithstanding any provision contained herein to the contrary, the
rights of the Rights Holder arising under this Section 7.1 shall not be
transferable and any attempted transfer or assignment shall render such right
void.
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7.2 Exceptions to Preemptive Rights. Section 7.2 shall not apply to
(i) issuances or sales of Common Stock to any member of the HMC Group who is an
employee, officer, and/or director of the Company and/or any of its
Subsidiaries pursuant to employee benefit or similar plans or arrangements of
the Company and/or its Subsidiaries, (ii) issuances or sales of Common Stock
upon exercise of any Common Stock Equivalent, (iii) securities distributed or
set aside ratably to all holders of Common Stock on a per share equivalent
basis, or (iv) issuances or sales of Common Stock pursuant to a registered
underwritten public offering, a merger of the Company or a subsidiary of the
Company into or with another entity or an acquisition by the Company of a
subsidiary of the Company or another business or corporation.
ARTICLE 8
ADDITIONAL WARRANTS
8.1 HMC Group Investment. If after the date of this Stockholders
Agreement, the HMC Group should purchase additional shares of Common Stock from
the Company, other than shares of Common Stock issued upon the exercise of any
Common Stock Equivalents granted pursuant to any employee, officer or director
benefit plan of arrangement ("New Shares"), then the Rights Holder shall be
entitled to receive from the Company for no additional consideration a warrant
(a "New Warrant") in the same form and substance as the Warrant except that
each New Warrant shall provide:
(a) for an initial Exercise Price (as such term is defined and
used in the Warrant) equal to the price per share of Common Stock paid
by the HMC Group in connection with such purchase, with such initial
Exercise Price being increased at the rate of interest provided for in
the Warrant;
(b) for a term of ten years from the date of grant;
(c) for a number of shares subject thereto equal to an amount
of (i) 10% of the New Shares so purchased by the HMC Group up to an
aggregate purchase price of $10,000,000 and (ii) 7.5% of the New Shares
so purchased by the HMC Group at an aggregate purchase price that is in
excess of that provided in clause (i) above; and
(d) that the number of shares of Common Stock subject to each
New Warrant shall be allocated 80% to the A Warrant and 20% to the B
Warrant (as such terms are defined and used in the Warrant).
Notwithstanding any provision contained herein to the contrary, the
rights of the Rights Holder arising under this Section 8.1 shall not be
transferable and any attempted transfer or assignment shall render such right
void.
ARTICLE 9
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 5 (other than Sections 5.2 and 5.4), 6, 7 and
8 of this Agreement shall terminate upon the consummation prior to the
expiration of such 10-year period of a Qualified IPO.
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ARTICLE 10
MISCELLANEOUS
Section 10.1 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 Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
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
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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 10.2 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 10.3 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.
Section 10.4 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 10.5 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 10.6 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 10.7 No Waivers; Amendments.
10.7.1 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.
10.7.2 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 10.7.2 or (B) change the number of Holders which
shall be required for the Holders or any of them to take any
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action under this Section 10.7.2 or any other provision of this Stockholders
Agreement, and (iii) unless signed by a majority of the Holders who are not
members of the HMC Group, amend Article 3, Section 4.1, Section 4.2 or Article
5, or grant a waiver thereunder, so as to (A) impose additional obligations on
or modify existing obligations in a manner adverse to such Holder who is not a
member of the HMC Group, Holders who are not members of the HMC Group that are
not imposed on Holders who are members of the HMC Group or (B) adversely affect
the rights granted to the Holders who are not members of the HMC Group where
such amendment or waiver does not apply to the same extent to the rights
granted thereunder to the Holders who are members of the HMC Group.
Section 10.8 Third Parties. Each member of the HMC Group is an
intended third party beneficiary of this Stockholders Agreement.
[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: President
------------------------
HICKS, MUSE, XXXX & XXXXX
INCORPORATED
By: /s/ XXXXXX X. XXXXX
---------------------------
Name: Xxxxxx X. Xxxxx
-------------------------
Title: President
------------------------
27
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
CAPSTAR BROADCASTING PARTNERS, L.P.
By: HM3/Capstar Partners, L.P.,
its General Partner
By: HM3/Capstar, Inc.,
its General Partner
By: /s/ XXXXXX X. XXXXX
-----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: President
--------------------------
28
SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ R. XXXXXX XXXXX
-------------------------------
R. Xxxxxx Xxxxx
Address:
000 Xxxxxxxx Xxx.
-------------------------------
Suite 1270
-------------------------------
Xxxxxx, XX 00000
-------------------------------
-------------------------------
