1
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of January 4, 2001, is
entered into by and between VIACOM INC., a Delaware corporation ("Parent"), and
the individuals set forth on Schedule I attached hereto (each, a "Stockholder",
and together, the "Stockholders").
WHEREAS, Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), Parent and IBC Merger Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Merger dated as of October 30, 2000 (the "Merger Agreement"; capitalized
terms used and not defined herein shall have the respective meanings assigned to
them in the Merger Agreement), pursuant to which the parties thereto have
agreed, upon the terms and subject to the conditions set forth therein, to merge
the Company with and into Merger Sub (the "Merger");
WHEREAS, Parent and the Company have agreed that the Company will hold a
special meeting of its stockholders to seek the approval of the Merger and the
Merger Agreement by holders of two-thirds of the Company's outstanding voting
shares, other than shares owned by Parent or subject to this Agreement;
WHEREAS, as of the date hereof, each Stockholder is the record or
beneficial owner of, or has the right to vote, or direct the voting and
disposition of, the number of shares of Class A common stock, par value $.01 per
share (the "Class A Shares"), of the Company set forth opposite such
Stockholder's name on Schedule I attached hereto; and
WHEREAS, Parent has requested the Stockholders to agree, and in order to
facilitate the Merger, the Stockholders are willing to agree, to vote in favor
of adopting the Merger Agreement and approving the Merger, upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below and in the Merger Agreement, the
parties hereto agree as follows:
SECTION 1. Voting of Shares. (a) Voting Agreement. For so long as this
Agreement is in effect, each Stockholder hereby agrees to appear in person or by
proxy, or cause the holder of record on any applicable record date (the "Record
Holder") to appear in person or by proxy, for the purpose of obtaining a quorum
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 at which matters relating to the Merger, the Merger
Agreement or any transaction contemplated by the Merger Agreement are considered
and to vote (or cause a Record Holder to vote) all of the Class A Shares, 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, at which matters relating to the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement are
considered and which such Stockholder has the right to so vote:
2
2
(i) in favor of the Merger Agreement, the Merger and any actions
required in furtherance thereof;
(ii) against any action or agreement that would 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 or which would
result in any of the conditions to the Merger set forth in the Merger
Agreement not being fulfilled; and
(iii) 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 subsidiaries or (C) any action that is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or
adversely affect the Merger and the other transactions contemplated by the
Merger Agreement.
(b) Evaluation of Investment. Each Stockholder is capable of evaluating
the merits and risks of its investment in Parent as a result of the Merger
Agreement, and has the capacity to protect his own interest in making its
investment in Parent. Each Stockholder (i) is acquiring shares of Class B common
stock, par value $.01 per share, of Parent (the "Parent Shares") to be issued to
it under the Merger Agreement solely for its own account for investment
purposes, and not with a view to the distribution thereof, (ii) is a
sophisticated investor with knowledge and experience in business and financial
matters, (iii) has received all information concerning Parent and the Merger,
including, but not limited to, the Merger Agreement, as desired in order to
evaluate the merits and the risks inherent in holding Parent Shares, (iv) is
able to bear the economic risk inherent in holding Parent Shares and (v) is an
Accredited Investor (as defined in Regulation D promulgated under the Securities
Act).
(c) No Inconsistent Agreements. Each Stockholder hereby represents,
warrants and covenants that, except as contemplated by this Agreement and the
Merger Agreement, such Stockholder (i) has not entered, and will not enter into,
any agreement with respect to the voting of such Stockholder's Class A Shares
and (ii) has not granted, and will not grant, any proxy or power of attorney
which is inconsistent with this Agreement.
SECTION 2. Representations and Warranties of each Stockholder. Each
Stockholder represents and warrants, individually and not jointly, to Parent as
follows:
(a) Binding Agreement. Such Stockholder has the capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
Such Stockholder has duly and validly executed and delivered this Agreement and
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such 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.
(b) No Conflict. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, or the performance of such
Stockholder's obligations hereunder will not (i) require any consent, approval,
authorization or permit of, registration,
3
3
declaration or filing (except for such filings as may be required under the
federal securities laws) with, or notification to, any Governmental Entity, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under, any 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 such Stockholder's Class A Shares, (iii) require any material consent,
authorization or approval of any Governmental Entity, or (iv) assuming any
consents, approvals and authorizations necessary to enter into this Agreement
have been received, and any condition precedent to such consent, approval,
authorization, or waiver has been satisfied, violate or conflict with any Laws
applicable to such Stockholder, such Stockholder's Class A Shares or by which
any property or asset of such Stockholder is bound or affected, except for such
exceptions to the foregoing as (A) are not reasonably likely to have an adverse
effect on the valid performance by such Stockholder of its obligations hereunder
or (B) become applicable as a result of the business or activities in which
Parent or any of its respective affiliates is or proposes to be engaged or any
acts or omissions by, or facts pertaining to, Parent.
(c) Ownership of Shares. Such Stockholder is the record or beneficial
owner of the Class A Shares set forth opposite such Stockholder's name on
Schedule I attached hereto free of any limitation or restriction on the right to
vote or direct the vote of the Shares, and there are no outstanding options or
other rights to acquire from such Stockholder, or obligations of such
Stockholder to sell or to dispose of, any Class A Shares. Such Stockholder holds
exclusive power to vote the Class A Shares set forth opposite such Stockholder's
name on Schedule I attached hereto. As of the date of this Agreement, the Class
A Shares set forth opposite such Stockholder's name on Schedule I attached
hereto represent all of the shares of capital stock of the Company beneficially
owned by the Stockholder (except for 164,250 Class A Shares held by the Xxxxxxx
X. and Xxx Xxxxxx Foundation and 62,500 Class A Shares held by the Xxxxxx Family
Foundation and which Messrs. Xxxxxx and Xxxxxx, respectively, may have voting
power but as to which Messrs. Xxxxxx and Xxxxxx, respectively, disclaim
beneficial ownership and which shares are not made subject to this Agreement).
SECTION 3. Representations and Warranties of Parent. Parent represents and
warrants to each Stockholder as follows:
(a) No Conflict. None of the execution and delivery of this Agreement, the
consummation by Parent of the transactions contemplated hereby, or the
compliance by Parent with any of the provisions hereof will (i) conflict with or
result in a breach of any provision of its Restated Certificate of Incorporation
or Amended and Restated By-laws, (ii) require any consent, approval,
authorization or permit of, registration, declaration or filing (except for such
filings as may be required under the federal securities laws) with, or
notification to, any Governmental Entity, (iii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation, or
acceleration) under any contract, agreement, instrument, commitment, arrangement
or understanding, (iv) require any material consent, authorization or approval
of any person other than a Governmental Entity, or (v) violate or conflict with
any Laws applicable to Parent, except for such exceptions to each of the
foregoing as are not reasonably likely to have an adverse effect on the valid
performance by Parent of its obligations hereunder.
4
4
(b) Registration of Parent Shares. (i) The Parent Shares to be issued to
the Stockholders in the Merger have been registered under the Securities Act
pursuant to a Registration Statement on Form S-4 and, upon issuance thereof as
contemplated by the Merger Agreement, shall not be subject to any restriction on
transfer under or imposed by the Securities Act except for such limitations, if
any, as may be applicable to a Stockholder pursuant to Rule 144 (as a result of
such Stockholder being deemed to be an "affiliate", as defined in Rule 144(a)
under the Securities Act, of Parent following the Effective Time) or Rule 145
under the Securities Act.
(ii) If the Parent Shares issued to the Stockholders in the Merger
shall not have been registered under the Securities Act pursuant to a
Registration Statement on Form S-4, then Parent shall use all reasonable
efforts following the Effective Time and upon the written request of the
Stockholders, to register under the Securities Act the Parent Shares
issued to the Stockholders. Each Stockholder acknowledges and agrees that
Parent will not be deemed to be in breach of the representation and
warranty set forth in clause (i) of this Section 3(b) from and after the
effective time of a registration statement filed under the Securities Act
by Parent pursuant to the first sentence of this clause (ii).
SECTION 4. Covenants of the Stockholders. For so long as this Agreement is
in effect:
(a) Efforts. Each Stockholder agrees not to take any action which would
make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or take any action that would have the effect
of preventing, impairing or disabling such Stockholder from performing its
obligations under this Agreement, other than any action permitted to be taken
pursuant to the Merger Agreement.
(b) 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 any Stockholder's Class A Shares or
(ii) any Stockholder shall become the beneficial owner of any additional shares
of capital stock of the Company 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 such Stockholder immediately
following the effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Class A Shares of such Stockholder hereunder. Each
Stockholder hereby agrees, while this Agreement is in effect, to notify Parent
of the number of any new Class A Shares acquired by such Stockholder, if any,
after the date hereof.
SECTION 5. Termination. This Agreement shall terminate on the earlier of
(i) the termination of the Merger Agreement in accordance with its terms and
(ii) the Effective Time. Termination of this Agreement shall not relieve any
party from liability for any intentional breach of its obligations hereunder
committed prior to such termination.
SECTION 6. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly
5
5
given or made upon receipt) by delivery in person, by facsimile, by courier
service or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 6):
If to Parent, to:
Viacom Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxx O'X. Xxxxxx, Esq.
If to any Stockholder, to:
The address set forth opposite such
Stockholder's name on Schedule I hereto,
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
16th Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
SECTION 7. Amendment; Release. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties hereto, provided that, with respect to the obligations of any
Stockholder under this Agreement, this Agreement may be amended with the
approval of such Stockholder and Parent notwithstanding the failure to obtain
the approval of any other Stockholder.
SECTION 8. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect as long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in
6
6
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
SECTION 9. Entire Agreement; Assignment. This Agreement (including
Schedule I) constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, between the parties, with respect to the subject matter
hereof. This Agreement shall not be assigned by operation of law or otherwise,
except that Parent may assign all or any of its rights and obligations hereunder
to any direct wholly owned subsidiary of Parent, provided that no such
assignment shall relieve Parent of its obligations hereunder.
SECTION 10. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without giving
effect to conflicts of law principles) as to all matters, including validity,
construction, effect, performance and remedies.
SECTION 12. Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 13. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by each
party hereto in separate counterparts, each of which when executed and delivered
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 14. Consent to Jurisdiction. (a) Each party hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of Delaware
sitting in the County of New Castle and the United States District Court for the
State of Delaware, and the appellate courts having jurisdiction of appeals in
such courts, for the purpose of any action or proceeding arising out of or
relating to this Agreement and each party hereto hereby irrevocably agrees that
all claims in respect to such action or proceeding may be heard and determined
exclusively in any such court. Each party hereto agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each party hereto irrevocably consents to the service of the summons
and complaint and any other process in any other action or proceeding relating
to the transactions contemplated by this Agreement, on behalf of itself or its
property, by personal delivery of copies of such process to such party. Nothing
in this Section 14 shall affect the right of either party to serve legal process
in any other manner permitted by law.
7
7
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
SECTION 16. Expenses. Except as otherwise specified in this Agreement, all
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
SECTION 17. Further Assurances. Parent and each Stockholder will execute
and deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
SECTION 18. Indemnification. Parent hereby agrees, to the fullest extent
permitted under applicable law, to indemnify and hold harmless each Stockholder
against all costs and expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and settlement amounts paid by such
Stockholder (a) in connection with any claim, action, suit, proceeding or
investigation based upon such Stockholder being a party to this Agreement or
performing his obligations hereunder and (b) arising out of the breach of any
representation or warranty made by Parent in this Agreement (and shall reimburse
each Stockholder for all reasonable and documented out-of-pocket expenses
incurred in connection with any matter which Parent is obligated to indemnify
the Stockholders pursuant hereto). In the event a Stockholder seeks
indemnification from Parent for any such claim, action, suit, proceeding or
investigation, (i) Parent shall pay the reasonable fees and expenses of counsel
selected by the Stockholders in connection therewith, which counsel shall be
reasonably satisfactory to Parent, promptly after statements therefor are
received and (ii) Parent shall 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 the Stockholders may, collectively, retain only one
counsel with respect to any matter subject to the indemnification provided for
in this Section 18 except to the extent, as determined by counsel to the
Stockholders, that the two Stockholders shall have conflicting interests in the
outcome of such matter.
[Remainder of this page left intentionally blank]
8
8
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
each of the parties hereto on the day and year first written above.
VIACOM INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX
9
SCHEDULE I
NAME AND ADDRESS OF STOCKHOLDER NUMBER OF CLASS A SHARES
Xxxxxxx X. Xxxxxx 37,244,806 (1)
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxx 39,843,848 (2)
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
--------
(1) Includes the following Class A Shares: (a) 1,923,077 shares held in a Rabbi
Trust for the benefit of Xx. Xxxxxx, as to which Xx. Xxxxxx has sole voting
power but not investment power and as to which he disclaims beneficial
ownership; and (b) 35,319,948 Class A Shares held by Xxxxxx Investments Limited
Partnership as to which Xx. Xxxxxx disclaims beneficial ownership except to the
extent of his partnership interest. Excludes 164,250 Class A Shares owned by the
Xxxxxxx X. and Xxx Xxxxxx Foundation, as to which Xx. Xxxxxx has shared voting
and investment power and as to which he disclaims beneficial ownership, which
shares are not covered by this Agreement.
(2) Includes the following Class A Shares: (a) 4,291,745 Class A Shares which
Xx. Xxxxxx holds jointly with his spouse; and (b) 5,151,582 Class A Shares held
by BRN Properties Limited Partnership as to which Xx. Xxxxxx disclaims
beneficial ownership except to the extent of his interest in the Partnership.
Excludes (a) 62,500 Class A Shares held by the Xxxxxx Family Foundation as to
which Xx. Xxxxxx disclaims beneficial ownership, which shares are not covered by
this Agreement and (b) 1,923,077 Class A Shares held in the Rabbi Trust referred
to in footnote (1) above.
