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EXHIBIT 2.64
ANNEX G
SECOND AMENDED AND RESTATED VOTING AGREEMENT
THIS SECOND AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement"),
dated as of August 11, 1999, among XXXXX ADVERTISING COMPANY, a Delaware
corporation (the "Company"), CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a
Delaware corporation ("Chancellor LA"), CHANCELLOR MEZZANINE HOLDINGS
CORPORATION, a Delaware corporation ("Chancellor Mezzanine"), and XXXXXX FAMILY
LIMITED PARTNERSHIP, a Louisiana limited partnership (the "Stockholder").
WHEREAS, Xxxxx Media Corp. (formerly known as Xxxxx Advertising
Company), a Delaware corporation and a wholly-owned subsidiary of the Company
("LMC"), and Chancellor LA entered into (i) that certain Stock Purchase
Agreement dated as of June 1, 1999 (the "Original Purchase Agreement") and (ii)
that certain Subscription Agreement, dated as of June 1, 1999 (the "Subscription
Agreement");
WHEREAS, LMC, Chancellor LA and Chancellor Mezzanine entered into that
certain Amended and Restated Stock Purchase Agreement, dated as of July 12, 1999
(the "Restated Purchase Agreement"), in order to (i) terminate the Subscription
Agreement and (ii) amend and restate the Original Purchase Agreement in its
entirety;
WHEREAS, the Company, LMC, Chancellor LA and Chancellor Mezzanine are
entering into that certain Second Amended and Restated Stock Purchase Agreement
of even date herewith (the "Purchase Agreement"), in order to amend and restate
the Restated Purchase Agreement;
WHEREAS, the Purchase Agreement contemplates the issuance and sale of
shares (collectively, the "Company Shares") of Class A Common Stock, par value
$0.001 per share, of the Company ("Class A Common Stock"), to Chancellor LA and
Chancellor Mezzanine upon the terms and subject to the conditions set forth in
the Purchase Agreement;
WHEREAS, all of the shares of Class A Common Stock and Class B Common
Stock, $0.001 par value per share, of the Company ("Class B Common Stock"), that
are held of record as of the date hereof by the Stockholder or over which the
Stockholder has the power to direct the vote, together with any shares of
capital stock of the Company acquired by the Stockholder after the date hereof
and during the term of this Agreement, including upon exercise of any option or
warrant, are collectively referred to herein as the "Subject Shares;" and
WHEREAS, as a condition to its willingness to enter into the Original
Purchase Agreement, Chancellor LA requested that the Stockholder enter into, and
the Stockholder agreed to enter into, that certain Voting Agreement dated as of
June 1, 1999 (the "Original Voting Agreement");
WHEREAS, the Original Voting Agreement was amended and restated as of
July 12, 1999 (the "Restated Voting Agreement"); and
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WHEREAS, the parties are entering into this Agreement in order to amend
and restate the Restated Voting Agreement to reflect changes that are
appropriate as a result of the parties' execution and delivery of the Purchase
Agreement;
NOW, THEREFORE, in consideration of Chancellor LA and Chancellor
Mezzanine entering into the Purchase Agreement, and in consideration of the
premises and the representations, warranties and agreements contained herein,
the parties agree as follows:
1. Representations and Warranties of the Stockholders. The Stockholder
hereby represents and warrants to Chancellor LA and Chancellor Mezzanine as of
the date hereof as follows:
(a) Authority; Noncontravention. The Stockholder has
all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Stockholder,
and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary partnership action
on the part of the Stockholder. This Agreement has been duly
authorized, executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder
enforceable in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms
hereof (including Section 3 of this Agreement) will not,
conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any
provision of, the certificate of limited partnership, the
partnership agreement or any other partnership organizational
documents of the Stockholder, or any trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law,
ordinance, rule or regulation applicable to the Stockholder or
to the Stockholder's property or assets.
(b) The Subject Shares. The Stockholder is the record
or beneficial owner of, and has good and marketable title to,
the Subject Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The
Stockholder has the sole right to vote the Subject Shares.
None of the Subject Shares is subject to any voting trust or
other agreement (other than the Stockholders Agreement, among
the parties hereto, of even date herewith (the "Stockholders
Agreement")), arrangement or restriction with respect to the
voting of the Subject Shares as required by this Agreement.
2. Representations and Warranties of Chancellor LA and Chancellor
Mezzanine. Each of Chancellor LA and Chancellor Mezzanine hereby represents and
warrants to the Stockholder as of the date hereof that (i) such entity has all
requisite
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corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby; (ii) the execution and delivery of this
Agreement by such entity, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of such entity; (iii) this Agreement has been duly executed and delivered by
such entity and constitutes a valid and binding obligation of such entity
enforceable in accordance with its terms; and (iv) the execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time or
both) under any provision of, the certificate of incorporation or bylaws of such
entity, any trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to such entity or to such entity's property or assets.
3. Covenants of the Stockholder. Until the termination of this
Agreement in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company
called to vote upon the approval and authorization of the
issuance of the Company Shares, as contemplated by the
Purchase Agreement, or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other
approval (including by written consent) with respect to the
approval and authorization of the issuance of the Company
Shares, is sought, the Stockholder shall vote (or cause to be
voted) the Subject Shares in favor of such proposals and any
of the other transactions contemplated by the Purchase
Agreement. The Stockholder further agrees (i) not to convert
any Subject Shares that are shares of Class B Common Stock
into shares of Class A Common Stock and (ii) not to waive or
otherwise forfeit its right to have each Subject Share that is
a share of Class B Common Stock be entitled to ten (10) votes
per share.
(b) Except as provided in the immediately following
sentence of this Section 3(b), the Stockholder agrees not to
(i) sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, the "Transfer"), or enter
into any contract, option or other arrangement (including any
profit sharing agreement) with respect to the Transfer of the
Subject Shares to any person, or (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise
(other than the Amended and Restated Stockholders Agreement to
be entered into in connection with the closing of the
transactions contemplated by the Purchase Agreement (the
"Stockholders Agreement")), with respect to any capital stock
of the Company, and agrees not to commit or agree to take any
of the foregoing actions. Notwithstanding the foregoing, the
Stockholder shall have the right, for tax or estate planning
purposes, to Transfer the Subject Shares to a transferee
provided that, as a condition to any such Transfer, each such
transferee shall execute and deliver to Chancellor LA
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and Chancellor Mezzanine a counterpart of this Agreement and
expressly agree to be bound hereby.
(c) Until after the earlier of (i) the consummation
of the transactions contemplated by the Purchase Agreement and
(ii) the termination of the Purchase Agreement, the
Stockholder shall use all reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with Chancellor LA and Chancellor
Mezzanine in doing, all things necessary, proper or advisable
to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by the
Purchase Agreement.
(d) Immediately prior to the closing of the
transactions contemplated by the Purchase Agreement (the
"Purchase Closing"), the Stockholder shall execute and deliver
to each of the Company, Chancellor LA and Chancellor
Mezzanine, the Stockholders Agreement, dated as of the date of
the Purchase Closing, the form of which is attached to the
Purchase Agreement as Annex E, as required by Section 7.3(e)
of the Purchase Agreement.
4. Further Assurances. The Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Chancellor LA and Chancellor
Mezzanine may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
5. Assignment. Neither party hereto shall assign this Agreement or any
part hereof without the prior written consent of the other party. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
6. Termination. This Agreement shall terminate upon the earlier of (a)
the termination of the Purchase Agreement in accordance with the terms thereof,
or (b) the closing of the transactions contemplated thereby.
7. General Provisions.
(a) Amendments. This Agreement may not be amended
except by an instrument in writing signed by each of the
parties hereto.
(b) Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing
proof of delivery) to the Company, Chancellor LA and
Chancellor Mezzanine in accordance with Section 11.2 of the
Purchase Agreement and to the Stockholder at its address set
forth on the signature pages hereto (or at such other address
for a party as shall be specified by like written notice).
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(c) Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to
this Agreement unless otherwise indicated. 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. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or
more of the counterparts have been signed by each of the
parties and delivered to the other party, it being understood
that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents and instruments
referred to herein) (i) constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon
any person other than the parties hereto any rights or
remedies hereunder.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
8. Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any competent court of the United
States located in the State of Delaware or in a Delaware state court, this being
in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court in the event any dispute arises out
of this Agreement or any of the transactions contemplated hereby, (ii) agrees
that such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that such
party will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the state
of Delaware or a Delaware state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first written above.
XXXXX ADVERTISING COMPANY
By: /s/ XXXXX XXXXX
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Name:
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Title:
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CHANCELLOR MEZZANINE HOLDINGS CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: General Partner
