EXHIBIT 10.2
STOCKHOLDER
AGREEMENT
This Stockholder Agreement (this
“ Agreement ”), dated as of February 10,
2009, is by and among Live Nation, Inc., a Delaware corporation
(the “ Company ”), Liberty Media Corporation, a
Delaware corporation (as defined below), Liberty USA Holdings, LLC,
a Delaware limited liability company and wholly owned subsidiary of
Liberty (“ Liberty Holdings ”), and Ticketmaster
Entertainment, Inc., a Delaware corporation (“
Ticketmaster ”).
WHEREAS, simultaneously with the
execution of this Agreement, Live Nation and Ticketmaster are
entering into an Agreement and Plan of Merger dated of even date
herewith (the “ Merger Agreement ”) providing
for, among other matters, the merger of Ticketmaster with and into
an indirect wholly owned subsidiary of Live Nation pursuant to
which the shares of Common Stock, par value $0.01 per share, of
Ticketmaster (“ Ticketmaster Common Stock ”)
will, upon the terms and subject to the conditions set forth
therein, be converted into the right to receive shares of Common
Stock, par value $0.01 per share, of Live Nation (“ LN
Common Stock ”) (capitalized terms used but not defined
herein have the meanings given such terms in the Merger
Agreement);
WHEREAS, Ticketmaster, Liberty,
Liberty Holdings and IAC/InterActiveCorp are parties to that
certain Spinco Assignment and Assumption Agreement, dated as of
August 20, 2008 (the “ Spinco Agreement
Assumption ”), relating to the Spinco Agreement
referenced therein (the “ Spinco Agreement ”)
(the Spinco Agreement as and to the extent assigned to and assumed
by Ticketmaster pursuant to the Spinco Agreement Assumption is
herein referred to as the “ Ticketmaster Spinco
Agreement ”);
WHEREAS, (i) as of the date
hereof Liberty Holdings is the record and beneficial owner of
16,643,957 shares (the “ Liberty Share Number ”)
of Ticketmaster Common Stock and (ii) Live Nation and Liberty
Holdings are simultaneously with the execution of this Agreement
entering into a Voting Agreement with respect to the Merger
Agreement and the other transactions contemplated thereby;
and
WHEREAS, the parties desire to set
forth certain understandings and agreements with respect to
governance arrangements and other matters following the
consummation of the Merger.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto
agree as follows:
“ Affiliate ”
shall have the meaning given such term in Rule 12b-2 under the
Exchange Act. For purposes of this definition, (i) natural
persons shall not be deemed to be Affiliates of each other and
(ii) neither Ticketmaster nor Live Nation shall be deemed to
be an Affiliate of Liberty or its Affiliates.
“ Applicable Percentage
” means 35%; provided that if after the Effective
Time, any Liberty Party Transfers Beneficial Ownership of any
Equity Securities (other than a Transfer
to Liberty or Liberty Holdings or to another
Affiliate of Liberty that, in accordance with this Agreement,
becomes a Liberty Party in connection with such Transfer),
(i) if such Transfer is not a Qualified Block Transfer or an
Excluded Affiliate Transfer, the then-applicable Applicable
Percentage shall be reduced by the Ownership Percentage so
Transferred, (ii) in the case of a Qualified Block Transfer,
the Applicable Percentage applicable to the Qualified Block
Transferee shall be the Applicable Percentage applicable to the
transferor immediately prior to such Transfer, and (iii) that
upon the consummation of (x) a Qualified Block Transfer, this
Agreement will be terminated pursuant to Section 9(c)(iii) as
to the Person Transferring such Equity Securities, and (y) an
Excluded Affiliate Transfer, the Applicable Percentage applicable
to Liberty shall be 5% so long as the primary purpose for
Liberty’s acquisition of Equity Securities following such
Excluded Affiliate Transfer is not the circumvention of limits on
Ownership Percentage set forth herein.
“ Assignment and Assumption
Agreement ” means a New Holder Assignment and Assumption
Agreement or an Affiliate Assignment and Assumption
Agreement.
“ Beneficial Ownership
” or “ Beneficially Own ” shall have the
meaning given such term in Rule 13d-3 under the Exchange Act and a
Person’s Beneficial Ownership of securities shall be
calculated in accordance with the provisions of such Rule;
provided , however , that for purposes of determining
any Person’s Beneficial Ownership, such Person shall be
deemed to be the Beneficial Owner of any Equity Securities which
may be acquired by such Person (disregarding any legal impediments
to such Beneficial Ownership), whether within 60 days or
thereafter, upon the conversion, exchange, redemption or exercise
of any warrants, options, rights (excluding the Live Nation Rights)
or other securities issued by Live Nation or any subsidiary
thereof. Notwithstanding anything to the contrary set forth herein,
(x) (i) prior to the delivery to any counterparty of
Equity Securities in final settlement of a Qualified Hedging
Transaction and (ii) with respect to any Qualified Stock
Lending Transactions until such time as the lending Liberty Party
no longer has a right to the return of the securities lent
thereunder, Liberty will be deemed to Beneficially Own all Equity
Securities subject to such Qualified Hedging Transaction or
Qualified Stock Lending Transaction and (y) prior to the
pledgee commencing action to foreclose upon any Equity Securities
pledged in any Qualified Pledge, any such pledged Equity Securities
will be deemed Beneficially Owned by the pledging party.
“ Business Day ”
means any day other than a Saturday, Sunday or a day on which the
banks in New York, New York are authorized or required by law to
remain closed.
“ Code ” means
the Internal Revenue Code of 1986, as amended.
“ Distribution
Transaction ” involving any Person which Beneficially
Owns Equity Securities means any transaction pursuant to which the
equity interests of (i) such Person or (ii) any Person
that directly or indirectly owns a majority of the equity interests
of such Person are distributed (whether by redemption, dividend,
share distribution, merger or otherwise) (the Person the equity
interests of which are being distributed in the Distribution
Transaction, the “ Distributed Company ”) to all
the holders of one or more classes or series of the common stock of
Parent Company that are registered under Section 12(b) or
12(g) of the Exchange Act (all the holders of one or more such
classes or series, “ Parent Company Holders ”),
on a pro rata basis with respect to each such class or series, or
such equity interests of such Person are
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available to be acquired by Parent Company
Holders (including through any rights offering, exchange offer,
exercise of subscription rights or other offer made available to
Parent Company Holders), on a pro rata basis with respect to each
such class or series, whether voluntary or involuntary.
“ Equity Securities
” means the equity securities of Live Nation, including
shares of LN Common Stock and shares of LN Common Stock or other
equity securities of Live Nation issuable upon exercise,
conversion, exchange or redemption of any warrants, options, rights
(excluding the Live Nation Rights) or other securities issued by
Live Nation or any subsidiary thereof.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities Exchange Commission
promulgated thereunder (as in effect on the date of this
Agreement).
“ Excluded Affiliate
Transfer ” is defined within the definition of Qualified
Block Transfer.
“ Fall-Away Date
” means the first date on which the aggregate number of
shares of LN Common Stock Beneficially Owned by Liberty falls below
50% of the Initial Share Number or, if earlier, following the
second anniversary of the Effective Time, the first date on which
Liberty’s Ownership Percentage first falls below
5%.
“ Independent Director
” means a director of Live Nation that is, as to Live Nation,
“independent” within the meaning of the rules and
regulations of the NYSE, or, if the LN Common Stock is not at the
time of determination listed on the NYSE, the rules and regulations
of such other national securities exchange on which such securities
are primarily traded.
“ Initial Share Number
” means the aggregate number of shares of LN Common Stock
issuable to the Liberty Parties in the Merger, but in no event
greater than the product of the Liberty Share Number multiplied by
the Exchange Ratio; provided , that the Initial Share Number
(and such product) shall be appropriately adjusted to reflect any
stock split, reverse stock split, stock dividend, subdivision,
combination, reclassification or similar event in respect of the LN
Common Stock after the date of this Agreement.
“ Liberty ” means
Liberty Media Corporation, a Delaware corporation; provided
that from and after the date of an Excluded Affiliate Transfer, the
term “Liberty” will be deemed to refer to the
Distributed Company Beneficially Owning shares of LN Common
Stock.
“ Liberty Director
” means (x) any person designated by Liberty to serve on
the Board of Directors of Live Nation who is reasonably acceptable
to the Board of Directors of Ticketmaster (in the case of persons
designated by Liberty to so serve effective as of the Effective
Time) or (y) any person designated to serve on the Board of
Directors of Live Nation by Liberty who is reasonably acceptable to
a majority of those directors of Live Nation that are not Liberty
Directors (in all other cases); provided , that any Person
designated by Liberty pursuant to the Ticketmaster Spinco Agreement
and serving on the Board of Ticketmaster prior to the Effective
Time will be deemed reasonably acceptable to
Ticketmaster.
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“ Liberty Parties
” means (x) Liberty, (y) Liberty Holdings and
(z) each Affiliate of Liberty that acquires record ownership
of any Equity Securities, in the case of a Person described in
clause (y) or (z), until such time as such Person is not an
Affiliate of Liberty or ceases to have record ownership of any
Equity Securities.
“ New Holder Assignment and
Assumption Agreement ” means an agreement in the form of
Exhibit 1 hereto, which, for the avoidance of doubt, shall not
include any transfer of any right of the Liberty Parties set forth
in Section 2 except in the case of an Excluded Affiliate
Transfer.
“ NYSE ” means
the New York Stock Exchange, Inc., or, if the LN Common Stock is
not at the time of determination listed on the NYSE, the rules and
regulations of such other national securities exchange on which
such securities are primarily traded.
“ Ownership Percentage
” of any Person means, at any time, the ratio, expressed as a
percentage, of (i) the Total Voting Power of the Equity
Securities Beneficially Owned by such Person and its Affiliates to
(ii) the sum of (x) the Total Voting Power of the Total
Equity Securities and (y) with respect to such Person, the
Total Voting Power of the shares of LN Common Stock included in
clause (i) that are issuable upon conversion, exchange,
redemption or exercise of Equity Securities that are not included
in clause (x).
“ Parent Company
” means the publicly traded Person which Beneficially Owns,
through an unbroken chain of majority-owned subsidiaries, the
Person having record ownership of the Equity Securities. For
purposes of this definition, the term “publicly traded”
means that the Person in question (x) has a class or series of
equity securities registered under Section 12(b) or 12(g) of
the Exchange Act or (y) is required to file reports pursuant
to Section 15(d) of the Exchange Act.
“ Person ” means
any individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated organization, government
or department or agency of a government.
“ Qualified Block
Transfer ” means a Transfer, in a single transaction of
all the Equity Securities Beneficially Owned at such time by the
Liberty Parties or a Qualified Block Transferee or their respective
Affiliates to a Qualified Block Transferee; provided that in
no event shall (a) the first Excluded Affiliate Transfer be
deemed hereunder to be a Qualified Block Transfer or (b) more
than two Transfers to Qualified Block Transferees (other than the
first Transfer to a Qualified Block Transferee acquiring shares in
connection with an Excluded Affiliate Transfer) be deemed hereunder
to be a Qualified Block Transfer.
“ Qualified Block
Transferee ” means a Person (including, for the avoidance
of doubt, a Person that is, at the time of any Transfer to it, an
Affiliate of Liberty which thereafter by reason of a Distribution
Transaction (such Distribution Transaction, an “ Excluded
Affiliate Transfer ”) ceases to be an Affiliate of
Liberty) (i) whose Ownership Percentage, after giving effect
to such Transfer, would not exceed the Applicable Percentage and
(ii) that, prior to such Transfer, shall have (along with the
applicable Transferring Persons) executed and delivered to Live
Nation a New Holder Assignment and Assumption Agreement.
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“ Qualified Director
” means any member of the Board of Directors of Live Nation
other than a director who (i) is a Liberty Director,
(ii) is an officer or employee of Live Nation or
(iii) was not nominated by the Nominating and/or Governance
Committee of the Board of Directors of Live Nation in his or her
initial election to such Board of Directors following the Effective
Time and for whose election any Liberty Party voted shares. In the
event that no person who would otherwise be a Qualified Director is
serving on the Board of Directors of Live Nation (unless the
failure to have a Qualified Director is a result of action taken by
directors who are not Qualified Directors), the Board of Directors
of Live Nation shall appoint a new director who qualifies as an
Independent Director and such person shall be considered a
Qualified Director for all purposes under this Agreement. For the
avoidance of doubt, wherever this Agreement requires the approval
or consent of, or other action by, a majority of the Qualified
Directors with respect to any matter, no such approval, consent or
other action may be obtained or taken at any such time as there are
no Qualified Directors.
“ Qualified Hedging
Transaction ” means any transaction involving a Liberty
Party, a Qualified Block Transferee or any Affiliate thereof
whereby the counterparty engages in a (i) short sale,
(ii) purchase, sale or grant of any right (including any put
or call option), or (iii) forward sale (whether for a fixed or
variable number of shares or at a fixed or variable price) of or
with respect to, or any loan secured by, any LN Common Stock or any
security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value
from any LN Common Stock, and such term includes (a) the
pledge by any Liberty Party, a Qualified Block Transferee or any
Affiliate thereof of any LN Common Stock in connection with any of
the foregoing to secure the obligations of the pledgor under a
Qualified Hedging Transaction and (b) the pledge of a
Qualified Hedging Transaction itself to secure any extension of
credit to a party based, in whole or part, on the value thereof,
provided in all cases that the counterparty to such transaction is
a financial institution in the business of engaging in such
transactions.
“ Qualified Pledge
” means a pledge of Equity Securities in connection with a
secured borrowing transaction and not otherwise within the meaning
of the definition of Qualified Hedging Transaction, the pledgee
with respect to which is a financial institution in the business of
engaging in secured lending and similar transactions.
“ Qualified Stock Lending
Transaction ” means a transaction whereby the Liberty
Parties and their Affiliates lend shares of LN Common Stock to a
third party or permit a third party to sell, pledge, rehypothecate,
assign, invest, use, commingle or otherwise dispose of, or
otherwise use in its business, such shares of LN Common Stock,
provided in all cases that the counterparty to such transaction is
a financial institution in the business of engaging in such
transactions.
“ Rights Offering
” means the issuance by Live Nation to existing holders of LN
Common Stock of rights to buy, within a fixed time period, a
proportional number of newly issued shares of LN Common Stock or
other Equity Securities.
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“ Second Qualified Block
Transfer ” means the second Qualified Block Transfer
following the Effective Time.
“ Total Equity
Securities ” at any time shall mean, subject to the next
sentence, the total number of Live Nation’s outstanding
Equity Securities. Any Equity Securities Beneficially Owned by a
Person that are not outstanding Voting Securities but that, upon
exercise, conversion or exchange, would become Voting Securities,
shall be deemed to be outstanding for the purpose of computing
Total Equity Securities and the percentage of Equity Securities
owned by such Person but shall not be deemed to be outstanding for
the purpose of computing Total Equity Securities and the percentage
of the Equity Securities owned by any other Person.
“ Total Voting Power
” of any Equity Securities at any time shall mean, subject to
the next sentence, the aggregate number of votes entitled to be
cast generally in the election of directors by the holders of such
securities. Any Equity Securities Beneficially Owned by a Person
that are not outstanding Voting Securities but that, upon exercise,
conversion or exchange, would become Voting Securities, shall be
deemed to be outstanding and to have full voting power for the
purpose of computing Total Voting Power of the Equity Securities
Beneficially Owned by such Person but shall not be deemed to be
outstanding or have such voting power for the purpose of computing
Total Voting Power of the Equity Securities Beneficially Owned by
any other Person or (except in calculating the Total Voting Power
of a Person who Beneficially Owns Voting Securities that are not
outstanding) Total Voting Power of the Total Equity
Securities.
“ Transfer ” by
any Person means directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, either
voluntarily or involuntarily, or to enter into any contract,
option
