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EXHIBIT 10.2
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of this 2nd day of
October, 1999, is entered into by and among CLEAR CHANNEL COMMUNICATIONS, INC.,
a Texas corporation ("Parent"), and XXXXXX X. XXXXX (the "Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, CCU Merger Sub, Inc., a Delaware corporation ("Merger
Sub"), and AMFM INC., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
pursuant to which the parties thereto have agreed, upon the terms and subject to
the conditions set forth therein, to merge Merger Sub with and into the Company
(the "Merger");
WHEREAS, as of the date hereof, the Stockholder is the record owner of
the number of shares (the "Shares") of common stock, par value $0.01 per share,
of the Company (the "Company Common Stock") set forth on Schedule I attached
hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
is willing to agree, to the matters set forth herein. Except as specified
herein, terms defined in the Merger Agreement are used herein as defined
therein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Voting of Shares.
1.1. Voting Agreement. The Stockholder hereby agrees to vote (or
cause to be voted) all of the Shares (and any and all securities issued or
issuable in respect thereof) which such Stockholder is entitled to vote (or to
provide his written consent thereto), at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments thereof,
or pursuant to any consent in lieu of a meeting or otherwise:
(a) in favor of the Merger and the approval and adoption of the
terms contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(b) against any action or agreement that is reasonably likely to
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of the Company under the Merger Agreement; and
(c) except for all such actions which may be permitted to the
Company under Section 5.1(a) of the Merger Agreement, against (a) any
extraordinary corporate transaction, such as a merger, rights offering,
reorganization, recapitalization or liquidation involving the Company or any of
its subsidiaries other than the Merger, (b) a sale or transfer of a material
amount of assets of the Company or any of its material subsidiaries or the
issuance of any securities of the Company or any subsidiary, (c) any change in
the Board of Directors of the Company other than in connection with an annual
meeting of the shareholders of the Company
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with respect to the slate of directors proposed by the incumbent Board of
Directors of the Company (in which case he agrees to vote for the slate proposed
by the incumbent Board) or (d) any action that is reasonably likely to
materially impede, interfere with, delay, postpone or adversely affect in any
material respect the Merger and the transaction contemplated by the Merger
Agreement.
2. Representations and Warranties of Stockholder. The Stockholder
represents and warrants to Parent as follows in each case as of the date hereof:
2.1. Binding Agreement. The Stockholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.2. No Conflict. Neither the execution and delivery of this
Agreement, nor the compliance with any of the provisions hereof in each case by
the Stockholder (a) requires any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) with, or notification to,
any governmental entity, (b) results in a default (or an event which, with
notice or lapse of time or both, would become a default) or gives rise to any
right of termination by any third party, cancellation, amendment or acceleration
under any material contract, agreement, instrument, commitment, arrangement or
understanding, or result in the creation of a security interest, lien, charge,
encumbrance, equity or claim with respect to any of the Shares, (c) requires any
material consent, authorization or approval of any person other than a
governmental entity which has not been obtained, or (d) violates or conflicts
with any order, writ, injunction, decree or law applicable to the Stockholder or
the Shares.
2.3. Ownership of Shares. Except as set forth in Schedule II, the
Stockholder is the record owner of the Shares free and clear of any security
interests, liens, charges, encumbrances, options or restriction on the right to
vote the Shares. The Stockholder holds exclusive power to vote the Shares,
subject to the limitations set forth in Section 1 of this Agreement and to the
rights of pledgees under pledge agreements. The Shares represent all of the
shares of capital stock of the Company owned of record by the Stockholder.
3. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder as follows in each case as of the date hereof:
3.1. Binding Agreement. Parent is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Texas and
has full corporate power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the Merger Agreement by Parent and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by the Board of Directors of Parent, and except for the approval of
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the issuance of shares of Parent Common Stock in the Merger by holders of a
majority of the outstanding shares of Parent Common Stock actually present and
voting at the Parent Special Meeting and obtaining all other Parent Stockholder
Approvals required by Section 5.3 of the Merger Agreement, no other corporate
proceedings on the part of Parent are necessary to authorize the execution,
delivery and performance of this Agreement and the Merger Agreement by Parent
and the consummation of the transactions contemplated hereby and thereby. Parent
has duly and validly executed this Agreement and this Agreement constitutes a
legal, valid and binding obligation of Parent, enforceable against Parent in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
3.2. No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Parent of the transactions contemplated hereby,
nor the compliance by Parent with any of the provisions hereof will (a) conflict
with or result in a breach of any provision of its Articles of Incorporation or
By-laws, (b) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Exchange Act)
with, or notification to, any governmental entity, (c) result in a default (or
an event which, with notice or lapse of time or both, would become a default) or
give rise to any right of termination by any third party, cancellation,
amendment or acceleration under any contract, agreement, instrument, commitment,
arrangement or understanding, (d) require any material consent, authorization or
approval of any person other than a governmental entity, or (e) violate or
conflict with any order, writ, injunction, decree or law applicable to Parent.
4. Transfer; Additional Shares.
4.1. Transfers Permitted. The Stockholder may sell, transfer,
assign, pledge, or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer,
assignment or other disposition of, the Shares or any interest contained
therein, free from obligations on the transferee, assignee, or pledgee under
this Agreement; provided, however, the Stockholder shall not be released from
its obligations under Section 1 to the extent that the Stockholder retains
voting rights over such Shares.
4.2. Additional Shares. Without limiting the provisions of the
Merger Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting the Shares or (ii) the Stockholder
becoming the record owner of any additional shares of Company Common Stock or
other securities entitling the holder thereof to vote or give consent with
respect to the matters set forth in Section 1 hereof, then the terms of this
Agreement shall apply to the shares of capital stock or other securities of the
Company held by the Stockholder immediately following the effectiveness of the
events described in clause (i) or the Stockholder becoming the record owner
thereof, as described in clause (ii), as though they were Shares hereunder. The
Stockholder hereby agrees, while this Agreement is in effect, to promptly notify
Parent of the number of any new shares of Company Common Stock acquired by the
Stockholder, if any, after the date hereof.
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5. Specific Enforcement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with the terms hereof or were otherwise
breached and that each party shall be entitled to seek specific performance of
the terms hereof, in addition to any other remedy which may be available at law
or in equity.
6. Termination. Except for Section 7 hereof, which shall survive for
the period specified therein, this Agreement shall terminate on the earlier of
(i) the termination of the Merger Agreement, (ii) the agreement of the parties
hereto to terminate this Agreement, (iii) consummation of the Merger and (iv)
the date the Stockholder ceases to own any Shares.
7. Indemnification. Parent shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless the Stockholder against any costs or
expenses (including attorneys' fees as provided below), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation by the
Company or any stockholder of the Company asserting any breach by the
Stockholder of any fiduciary duty on his part to the Company or the other
stockholders of the Company by reason of the Stockholder entering into this
Agreement, for a period of six years after the date hereof. In the event the
Stockholder seeks indemnification from Parent for any such claim, action, suit,
proceeding or investigation (whether arising before or after the termination of
this Agreement), (a) Parent shall pay the fees and expenses of one counsel
selected by such Stockholder and reasonably acceptable to Parent to represent
such Stockholder in connection therewith promptly after statements therefor are
received, and (b)Parent and Merger Sub will cooperate in the defense of any
such matter; provided, however, that Parent shall not be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld); provided, further, that in the event that any claim or
claims for indemnification under this Section 7 are asserted or made within such
six-year period, all rights to indemnification in respect of any such claim or
claims shall continue until the final disposition of any and all such claims.
This Section 7 shall survive until the latest of the following: (i) six years
from the date hereof, (ii) the termination of this Agreement, and (iii) the
final disposition of all claims for indemnification asserted or made within the
six-year period following the date hereof.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
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If to the Parent, to:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: X. Xxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Facsimile No.: (000) 000-0000
If to the Stockholder, to:
Xxxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxx, Xx.
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
9. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
10. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by Parent.
11. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
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12. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto. This Agreement will be binding upon, inure to the benefit of and
be enforceable by each party and such party's respective heirs, beneficiaries,
executors, representatives and permitted assigns.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of Texas
(without giving effect to the provisions thereof relating to conflicts of law).
15. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
16. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Stockholder Capacity. Neither the Stockholder nor any designee of
the Stockholder who is or becomes during the term hereof a director or officer
of the Company makes any agreement or understanding herein in its capacity as
such director or officer. The Stockholder signs solely in his capacity as the
record owner of the Stockholder's Shares and nothing herein shall limit or
affect any actions taken by the Stockholder or any designee of the Stockholder
in his capacity as an officer or director of the Company. As used herein, the
term "record owner" or "record holder" shall mean ownership of Shares directly
or through a nominee.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the Stockholder and a duly authorized officer of Parent on the day and year
first written above.
PARENT:
CLEAR CHANNEL COMMUNICATIONS, INC., A TEXAS
CORPORATION
/s/ XXXXXXX X. XXXX
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By: Xxxxxxx X. Xxxx
Title: Executive Vice President and
Chief Executive Officer
STOCKHOLDER:
/S/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
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SCHEDULE I TO
VOTING AGREEMENT
Name of Stockholder Number of Shares
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Xxxxxx X. Xxxxx 3,606,624
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SCHEDULE II TO
VOTING AGREEMENT
None.
