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EXHIBIT 10.30
EXECUTION COPY
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of
April 9, 1997, is entered into by and among Xxxxx Media Corporation, a Delaware
corporation (the "Company"), Clear Channel Communications, Inc., a Texas
corporation ("CCC"), and EM Holdings LLC, an Arizona limited liability company
("Holdings").
RECITALS
WHEREAS, the Company, CCC and the persons set forth on Exhibit
A thereto (the "Selling Stockholders") have entered into that certain Stock
Purchase Agreement, dated as of February 25, 1997, as amended (the "Stock
Purchase Agreement"), pursuant to which the Selling Stockholders have agreed to
sell to CCC, and CCC has agreed to purchase from the Selling Stockholders, an
aggregate of 1,793.504 shares of outstanding Common Stock, par value $.01 per
share ("Company Common Stock"), of the Company;
WHEREAS, as a result of the transactions contemplated by the
Stock Purchase Agreement, CCC will own 1,793.504 shares of Company Common Stock
and Holdings will own 140.450 shares of Company Common Stock; and
WHEREAS, Holdings, CCC and the Company desire to enter into
this Agreement to regulate certain aspects of their relationship and to provide
for, among other things, restrictions on the transfer or other disposition of
securities of the Company, and to agree with respect to certain other matters
as more fully set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Agreement" has the meaning specified in the heading of this
Agreement.
"Business Day" shall mean any weekday on which commercial
banks in New York City are open. Any action, notice or right which is to be
exercised or lapses on or by a given date which is not a Business Day may be
taken, given or exercised, and shall not lapse, until the end of the next
Business Day.
"CCC" has the meaning specified in the heading of this
Agreement.
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"CCC Common Stock" shall mean the Common Stock, par value $.10
per share, of CCC, as constituted on the date hereof. If the CCC Common Stock
is after the date hereof reclassified or changed into other shares of capital
stock or other securities or property, including by reason of a merger,
consolidation, reorganization or recapitalization, or if CCC pays a dividend or
makes a distribution on the CCC Common Stock in shares of capital stock or
other securities or property (excluding cash) or subdivides (or combines) its
outstanding shares of CCC Common Stock into a greater (or smaller) number of
shares of CCC Common Stock, a share of CCC Common Stock shall be deemed to be
such number of shares of stock and amount of other securities or property
(excluding cash) to which a holder of CCC Common Stock would be entitled if
such holder were a record holder of a share of CCC Common Stock on the date
hereof and continuously to the date of determination.
"CCC Stockholders" shall mean CCC and each of its direct and
indirect Permitted Transferees, so long as any such Person shall hold Company
Shares.
"Change of Control" shall mean (a) the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of the Company and its subsidiaries, taken as a whole, (b) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" or "group" (as such
terms are defined in Section 13(d)(3) of the Exchange Act) becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under
the Exchange Act), directly or indirectly through one or more intermediaries,
of more than 50% of the voting power of the outstanding voting stock of the
Company, or (c) the adoption of a plan relating to the liquidation or
dissolution of the Company; provided, however, that a transaction in which the
Company becomes a subsidiary of another entity shall not constitute a Change of
Control if (a) the stockholders of the Company immediately prior to such
transaction "beneficially own" (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act), directly or indirectly through one or more
intermediaries, at least a majority of the voting power of the outstanding
voting stock of the Company immediately following the consummation of such
transaction and (b) immediately following the consummation of such transaction,
no "person" or "group" (as such terms are defined above), other than such other
entity (but including holders of equity interests of such other entity),
"beneficially owns" (as such term is defined above), directly or indirectly
through one or more intermediaries, more than 50% of the voting power of the
outstanding voting stock of the Company.
"Company" has the meaning specified in the heading of this
Agreement.
"Company Common Stock" has the meaning specified in the first
recital of this Agreement.
"Company Shares" shall mean the Company Common Stock as
constituted on the date hereof. If the Company Common Stock is after the date
hereof reclassified or changed into other shares of capital stock or other
securities or property, including by reason of a merger, consolidation,
reorganization or recapitalization, or if the Company pays a dividend or makes
a distribution on the Company Common Stock in shares of capital stock or other
securities or
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property (excluding cash) or subdivides (or combines) its outstanding shares of
Company Common Stock into a greater (or smaller) number of shares of Company
Common Stock, a share of Company Common Stock shall be deemed to be such number
of shares of stock and amount of other securities or property (excluding cash)
to which a holder of Company Common Stock would be entitled if such holder were
a record holder of a share of Company Common Stock on the date hereof and
continuously to the date of determination.
"Xxxxx Stockholders" shall mean Xxxxx Xxxxx, Xxxx Ranches,
Inc., Red River Resources, Inc., Xxxxx Family L.L.C., Xxxxxx Xxxxx Xxxxxxx,
Xxxx Xxxxx and Xxxx Xxxxx.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Holdings" has the meaning specified in the heading of this
Agreement.
"Holdings Stockholders" shall mean Holdings and each of its
direct and indirect Permitted Transferees, so long as any such Person shall
hold Company Shares.
"Permitted Transferee" shall mean:
(a) as to any Holdings Stockholder, (i) any Xxxxx
Stockholder; (ii) any person who is the spouse or former spouse of, or any
lineal descendent of, or any spouse of such lineal descendant of, or the
grandparent, parent, brother or sister of, or spouse of such brother or sister
of, an Xxxxx Stockholder or a Permitted Transferee of such person; (iii) upon
the death of any Xxxxx Stockholder or any Permitted Transferee of such person,
the executors of the estate of such Xxxxx Stockholder or Permitted Transferee,
any of such Xxxxx Stockholder's or such Permitted Transferee's heirs,
testamentary trustees, devisees, or legatees; (iv) any trust principally for
the benefit of one or more of the Xxxxx Stockholders or Permitted Transferees
(including a charitable lead or remainder trust); (v) upon the disability of
any Xxxxx Stockholder or Permitted Transferee, any guardian or conservator of
such Xxxxx Stockholder or Permitted Transferee or (vi) any other transferee
approved by CCC, provided that in each case such transferee assumes and agrees
to perform and becomes a party to this Agreement; and
(b) as to CCC, any transferee who assumes and agrees to
perform and becomes a party to this Agreement.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Put Date" has the meaning specified in Section 3(a)(ii) of
this Agreement.
"Put Notice" has the meaning specified in Section 3(a)(ii) of
this Agreement.
"Put Obligation" has the meaning specified in Section 3(a)(i)
of this Agreement.
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"Put Option Shares" has the meaning specified in Section
3(a)(i) of this Agreement.
"Put Right" has the meaning specified in Section 3(a)(i) of
this Agreement.
"Redemption Date" has the meaning specified in Section
3(b)(ii) of this Agreement.
"Redemption Notice" has the meaning specified in Section
3(b)(ii) of this Agreement.
"Redemption Right" has the meaning specified in Section
3(b)(i) of this Agreement.
"Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among CCC and the
persons listed on the signature pages thereof, as the same may be amended,
modified, supplemented or restated from time to time.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Selling Stockholders" has the meaning specified in the first
recital of this Agreement.
"Stockholders" shall mean each of the Holdings Stockholders
and the CCC Stockholders.
"Stock Purchase Agreement" has the meaning specified in the
first recital of this Agreement.
"Transfer" means, with respect to any security, any direct or
indirect, sale, assignment, hypothecation, pledge or other disposition of such
security or any interests therein.
"Transfer Price" shall mean, with respect to each Company
Share (or fraction thereof), the sum of (a) 7,700 shares of CCC Common Stock
(or the equivalent fraction thereof, as the case may be), subject to adjustment
as provided in the definition of CCC Common Stock and subject to the Escrow
Agreement (as defined in the Stock Purchase Agreement), plus, without
duplication, (b) any cash dividends or other cash distributions which would
have been payable to the holder of such Company Share (without interest
thereon), if, on the date hereof, he had become and remained until the date of
determination a record holder of such shares of CCC Common Stock, plus (c) any
cash payment in lieu of fractional shares that the holder of such Company Share
is entitled to receive pursuant to Section 3(c) hereof, less (d) any cash
dividends or other cash distributions paid to the holder of such Company Share
after the date hereof and until the date of determination (without interest
thereon).
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2. Transfers of Company Shares.
(a) Restrictions Generally; Securities Act.
(i) Each Stockholder agrees that it will not,
directly or indirectly, Transfer any Company Shares except in accordance with
the terms of this Agreement. In the event a Transfer of any Company Shares is
attempted in violation of the provisions of this Agreement, such Transfer shall
be void and of no effect, the Company shall not register or have any obligation
to register the Transfer of such shares, and no dividend of any kind whatsoever
nor any distribution pursuant to liquidation or otherwise shall be paid by the
Company to the transferee in respect to such shares (all such dividends and
distributions being deemed waived by the transferee), and the voting rights of
such shares, if any, on any matter whatsoever, and all other rights in
connection with such shares, shall remain vested in the transferor during the
period commencing with such party's initial failure of compliance and ending
when compliance shall have occurred.
(ii) Each Stockholder agrees that, in addition to
the other requirements herein relating to Transfer, it will not Transfer any
Company Shares except pursuant to an effective registration statement under the
Securities Act, or pursuant to an available exemption from registration under
the Securities Act.
(b) Legends.
(i) Each certificate representing Company Shares
shall be endorsed with the following legends and such other legends as may be
required by applicable state securities laws:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS, RIGHTS TO REPURCHASE AND RIGHTS TO REQUIRE
TRANSFERS CONTAINED IN A STOCKHOLDERS AGREEMENT, DATED AS OF
APRIL 9, 1997 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF THE ISSUER HEREOF)."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO
REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE."
(ii) Any certificate issued at any time in
exchange or substitution for any certificate bearing such legends shall also
bear such legends, as applicable, unless in the opinion of counsel for the
Company, the Company Shares represented thereby are no longer subject to the
provisions of this Agreement or the restrictions imposed under the Securities
Act or state securities laws, in which case the applicable legend (or legends)
may be removed.
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(c) Transfers by Stockholders. Each of the Stockholders
agrees that it will not Transfer any Company Shares except (i) pursuant to the
provisions of this Agreement or (ii) to a Permitted Transferee.
3. Put Right; Redemption Right.
(a) Put Right.
(i) At any time and from time to time commencing
on the date hereof and ending on the fifth anniversary of the date hereof, the
Holdings Stockholders, and each of them, shall have the right (a "Put Right"),
individually or together, to sell to CCC, in one or more transactions, in whole
or in part, any or all of the outstanding Company Shares then owned by such
Holdings Stockholders (the "Put Option Shares"), subject to the notice
provisions set forth in Section 3(a)(ii) hereof, and CCC shall be obligated to
purchase (a "Put Obligation") from such Holdings Stockholders the Put Option
Shares; provided, however, that the Holding Stockholders may only exercise the
Put Right on three occasions. The price per share of the Put Option Shares
shall equal the Transfer Price on the Put Date (as defined below).
(ii) In order to exercise the rights granted to
them pursuant to Section 3(a)(i) hereof, the Holdings Stockholder or Holdings
Stockholders who desire to exercise such rights (by action in accordance with
Section 8 hereof) shall notify CCC in writing (a "Put Notice") of the exercise
of their rights hereunder not less than ten (10) nor more than twenty (20) days
prior to the date fixed for such purchase. Such Put Notice shall state the
following:
(A) the purchase date (the "Put Date");
and
(B) the number of outstanding Company
Shares held by such Holdings Stockholder or Holdings Stockholders to be sold to
CCC.
(iii) In the event that as of any Put Date, CCC
shall not fully satisfy its Put Obligation on such Put Date, interest will
accrue from the date of default until the date that such Put Obligation and any
accrued interest thereon is satisfied in full, at the rate of 10% per annum (to
the extent permitted by law), compounded daily, on an amount equal to the
aggregate Transfer Price to be paid on the Put Date with respect to the Company
Shares to be purchased. Such interest will be payable in cash. All amounts
paid by CCC with respect to any outstanding Put Obligation shall be applied
first to any accrued but unpaid interest thereon.
(b) Redemption Right.
(i) At any time commencing on the seventh
anniversary of the date hereof and ending on the tenth anniversary of the date
hereof, CCC shall have the right (the "Redemption Right") to call for purchase
by CCC all, but not less than all, of the outstanding Company Shares then owned
by the Holdings Stockholders, subject to the notice provisions set forth in
Section 3(b)(ii) hereof; provided, however, that in the event that CCC or the
Company enters into any transaction or agreement which will result in a Change
of Control, such Redemption Right may be exercised by CCC immediately prior to
such Change of Control. The
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price for each Company Share called for purchase by CCC shall equal the
Transfer Price on the Redemption Date (as defined below).
(ii) In order to exercise the rights granted to it
pursuant to Section 3(b)(i) hereof, CCC (by action in accordance with Section 8
hereof) shall notify the Holdings Stockholders in writing (the "Redemption
Notice") of the purchase of Company Shares hereunder not less than ten (10) nor
more than twenty (20) days prior to the date fixed for such redemption. The
Redemption Notice shall state the following:
(A) the redemption date (the "Redemption
Date");
(B) that all outstanding Company Shares
held by the Holdings Stockholders are to be purchased; and
(C) the requisite Transfer Price
deliverable upon redemption of each Company Share to be purchased.
(c) No Fractional Shares. No fractional shares of CCC
Common Stock shall be issued upon the purchase of any Company Shares. Instead
of any fractional interest in a share of CCC Common Stock which would otherwise
be deliverable upon the purchase of a Company Share, CCC shall pay the holder
of such share an amount in cash (computed to the nearest cent) equal to the
product of (i) the fraction of a share of CCC Common Stock to which such holder
would otherwise be entitled multiplied by (ii) the closing price of the CCC
Common Stock on the New York Stock Exchange (or such other securities exchange
or automated interdealer quotation system, if any, on which such securities are
then listed or quoted) on the trading date immediately prior to the Put Date or
the Redemption Date, as the case may be. If more than one share shall be
surrendered for purchase at one time, the number of full shares of CCC Common
Stock issuable upon purchase thereof shall be computed on the basis of the
aggregate number of Company Shares so surrendered.
(d) Deposit of Shares and Funds. CCC's obligation to
deliver the requisite Transfer Price in accordance with Section 3(a) and
Section 3(b) shall be deemed fulfilled if, on or before a Put Date or a
Redemption Date, as the case may be, CCC shall deposit, with a bank or trust
company, or an affiliate of a bank or trust company, having an office or agency
in New York City or Phoenix, Arizona and having a capital and surplus of at
least $500,000,000, the aggregate Transfer Price required to be delivered by
CCC pursuant to Section 3(a) or Section 3(b), upon the occurrence of the
related purchase or redemption, in trust for the account of the holders of the
shares to be purchased or redeemed (and so as to be and continue to be
available therefor), with irrevocable instructions and authority to such bank
or trust company that such shares and funds be delivered upon purchase or
redemption of the Company Shares to be purchased or called for redemption. Any
interest accrued on the Transfer Price shall be paid to CCC. Any amount of the
Transfer Price so deposited and unclaimed at the end of one year from such Put
Date or Redemption Date shall be repaid and released to CCC after which the
holder or holders of such Company Shares subject to purchase or called for
redemption shall look only to CCC for delivery of the requisite Transfer Price,
subject to escheat and similar abandoned property laws.
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(e) Surrender of Certificates. Each holder of Company
Shares to be purchased or redeemed shall surrender the certificates evidencing
such shares (properly endorsed or assigned for transfer) to the bank or trust
company or affiliate thereof where CCC has deposited the Transfer Price
pursuant to Section 3(d), or, in the event no such deposit has been made, to
CCC at the office of CCC, and shall thereupon be entitled to receive the
Transfer Price payable pursuant to this Section 3 following such surrender and
following the date of such purchase or redemption. In the case fewer than all
the shares represented by any such surrendered certificate are to be purchased
pursuant to Section 3(a), a new certificate shall be issued at the expense of
CCC representing the unpurchased shares. If such notice of purchase or
redemption shall have been given, and if on the date fixed for purchase or
redemption, the requisite Transfer Price necessary for the purchase or
redemption shall have been either set aside by CCC separate and apart from its
other funds or assets in trust for the account of the holders of the shares to
be purchased or redeemed (and so as to be and continue to be available
therefor) or deposited with a bank or trust company or affiliate thereof as
provided in Section 3(d) hereof, then, notwithstanding that the certificates
evidencing any Company Shares to be purchased or redeemed shall not have been
surrendered, the shares represented thereby subject to purchase or redemption
shall be deemed no longer outstanding and all rights with respect to such
shares shall forthwith after such date cease and terminate, except for the
right of the holders to the requisite Transfer Price payable pursuant to this
Section 3 without interest upon surrender of their certificates therefor.
(f) Notice of Adjustments. Whenever the Transfer Price
is adjusted as herein provided, CCC shall:
(i) forthwith compute the adjusted Transfer Price
and prepare a certificate signed by the Chief Executive Officer, the Chief
Financial Officer, any Vice President, the Treasurer or the Controller of CCC
setting forth the adjusted Transfer Price, the method of calculation thereof in
reasonable detail and the facts requiring such adjustment and upon which such
adjustment is based, and file such certificate forthwith with the transfer
agent or agents for the Company Shares and the CCC Common Stock; and
(ii) mail a notice stating that the Transfer Price
has been adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Transfer Price to the
Holdings Stockholders at or prior to the time CCC mails an interim statement to
its stockholders covering the fiscal quarter during which the facts requiring
such adjustment occurred, but in any event within forty-five (45) days of the
end of such fiscal quarter.
(g) Payment of Taxes. CCC will pay any and all
documentary, stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of CCC Common Stock on the purchase or redemption
of Company Shares pursuant to this Section 3; provided, however, that CCC shall
not be required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue or delivery of shares of CCC
Common Stock in a name other than that of the registered holder of Company
Shares purchased or redeemed or to be purchased or redeemed, and no such issue
or delivery shall be made unless
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and until the person requesting such issue has paid to CCC the amount of any
such tax or has established, to the satisfaction of CCC, that such tax has been
paid.
(h) Reservation of Shares. CCC shall at all times
reserve and keep available, free from preemptive rights, out of the aggregate
of its authorized but unissued CCC Common Stock and its issued CCC Common Stock
held in its treasury, for the purpose of satisfying Put Obligations pursuant to
Section 3(a) or purchasing the Company Shares pursuant to Section 3(b), the
full number of shares of CCC Common Stock (or other securities or property)
then deliverable upon the exercise in full of the Put Right or the Redemption
Right, as the case may be.
4. Notice of and Covenant Regarding Corporate Events. The
Company and CCC shall give written notice to the Holdings Stockholders at least
thirty (30) days prior to any merger or consolidation to which the Company is a
party and in which it is not the surviving corporation or the adoption of a
plan relating to the liquidation or dissolution of the Company. Furthermore,
the Company and CCC agree that, prior to the fifth anniversary of the date
hereof, and other than in connection with a Change of Control, the Company will
not be a party to any merger or consolidation in which it is not the surviving
corporation, or adopt a plan of liquidation or dissolution.
5. Investment. The Holdings Stockholders:
(a) understand that the shares of CCC Common Stock to be
issued upon exercise of the Put Right and the Redemption Right have not been,
and will not be, except as contemplated by the Registration Rights Agreement,
registered under the Securities Act, or under any state securities laws, and,
upon exercise of the Put Right or the Redemption Right, as the case may be,
will be offered and sold in reliance upon federal and state exemptions for
transactions not involving any public offering;
(b) acknowledge that shares of CCC Common Stock to be
issued upon exercise of the Put Right and the Redemption Right will be acquired
solely for their own account and not with a view to the distribution thereof,
except in accordance with the Securities Act or as contemplated by the
Registration Rights Agreement;
(c) are sophisticated investors with knowledge and
experience in business and financial matters;
(d) have received certain information concerning CCC and
have had the opportunity to obtain additional information as desired in order
to evaluate the merits and the risks inherent in holding shares of CCC Common
Stock issuable upon exercise of the Put Right and the Redemption Right; and
(e) are able to bear the economic risk and lack of
liquidity inherent in holding shares of CCC Common Stock issuable upon exercise
of the Put Right and the Redemption Right.
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6. Term. This Agreement shall terminate upon the earliest of (a)
the tenth anniversary of the date hereof, (b) the date on which the Holdings
Stockholders no longer own Company Shares, and (c) April 30, 1997, in the event
the transactions contemplated by the Stock Purchase Agreement have not been
consummated on or before such date.
7. Injunctive Relief. The parties acknowledge that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved person or entity will be
irreparably damaged and will not have an adequate remedy at law. Any such
person or entity shall, therefore, be entitled to injunctive relief, including
specific performance, to enforce such obligations, and if any action should be
brought in equity to enforce any of the provisions of this Agreement, none of
the parties shall raise the defense that there is an adequate remedy at law.
8. Notices. Any notices or other communications required or
permitted hereunder, shall be sufficiently given if in writing and personally
delivered or sent by pre-paid first class mail, overnight courier, telex or
facsimile, addressed as follows or to such other address as the parties shall
have given notice of pursuant hereto:
In the case of the Company:
Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
In the case of CCC or any CCC Stockholder:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
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With a copy to:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Piper & Marbury L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxx, Xx., Esq.
Telecopy: (000) 000-0000
In the case of any Holdings Stockholder:
Xxxx Xxxxx
c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxx
c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
With a copy to:
Xxxx X. Xxxxx, Esq.
c/x Xxxxx Media Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
All such notices and communications shall be deemed to have been duly given:
when personally delivered; three Business Days after being deposited in the
mail, as aforesaid; next day, if by overnight courier with guaranteed delivery;
when answered back, if telexed; and when receipt is acknowledged, if
transmitted by facsimile.
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9. Entire Agreement. This Agreement and the other agreements
referred to herein represent the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof and thereof and
supersedes all prior understandings and agreements, whether written or oral.
10. Amendments and Waivers. No modification, amendment or waiver
of any provision of this Agreement will be effective unless approved in writing
by the Company, CCC and the Holdings Stockholders owning a majority of the
Company Shares then subject to this Agreement. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as
a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
11. Successors and Assigns. This Agreement will bind and inure to
the benefit of and be enforceable by the Company and its successors and
assigns, and the Stockholders and the respective successors and assigns of each
of them so long as they hold Company Shares; provided, however, that nothing
contained herein shall be construed as granting any Stockholder the right to
Transfer any of its Company Shares except in accordance with this Agreement.
12. No Inconsistent Agreements. Neither the Company nor CCC will
hereafter enter into any agreement, arrangement or understanding with any
Person which expressly restricts the performance by the Company or CCC, as the
case may be, of their respective obligations hereunder, including, without
limitation, the respective obligations of the Company and CCC under Section 3
hereof.
13. Choice of Law.
(a) This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State
of Delaware (without reference to the choice of law provisions of Delaware law)
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as to those matters the law of the jurisdiction under which the respective
entity derives its powers shall govern.
(b) Each of the parties hereto irrevocably consents to
the service of any process, pleading, notices or other papers by the mailing of
copies thereof by registered, certified or first class mail, postage prepaid,
to such party at such party's address set forth herein, or by any other method
provided or permitted under Delaware law. Additionally, each party hereby
appoints RL&F Service Corp., Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as
agent for service of process in Delaware.
(c) Each party irrevocably and unconditionally agrees and
consents that any suit, action or other legal proceeding arising out of or
related to this Agreement shall be brought and heard in New Castle County,
State of Delaware, and each party irrevocably consents to personal jurisdiction
in any and all tribunals in said County.
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14. Severability. Each party agrees that, should any court or
other competent authority hold any provision of this Agreement or part hereof
to be null, void or unenforceable, or order any party to take any action
inconsistent herewith or not to take an action consistent herewith or required
hereby, the validity, legality and enforceability of the remaining provisions
and obligations contained or set forth herein shall not in any way be affected
or impaired thereby. Upon any such holding that any provision of this
Agreement is null, void or unenforceable, the parties will negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated by this Agreement are consummated to the extent
possible. Except as otherwise contemplated by this Agreement, to the extent
that a party hereto took an action inconsistent herewith or failed to take
action consistent herewith or required hereby pursuant to an order or judgment
of a court or other competent authority, such party shall incur no liability or
obligation unless such party did not in good faith seek to resist or object to
the imposition or entering of such order or judgment.
15. Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." This Agreement shall not be construed for or against any
party by reason of the authorship or alleged authorship of any provision hereof
or by reason of the status of the respective parties. All terms defined in
this Agreement in the singular shall have the same comparable meanings when
used in the plural and vice versa, unless otherwise specified.
16. Attorneys' Fees. If any party to this Agreement brings an
action to enforce its rights under this Agreement, the prevailing party shall
be entitled to recover its costs and expenses, including without limitation
reasonable attorneys' fees, incurred in connection with such action, including
any appeal of such action.
17. Cumulative Remedies. All rights and remedies of any party
hereto are cumulative of each other and of every other right or remedy such
party may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXX MEDIA CORPORATION
By
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Xxxx Xxxxx
Chief Executive Officer
CLEAR CHANNEL COMMUNICATIONS, INC.
By
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Xxxxxxx X. Xxxx
Executive Vice President
EM HOLDINGS LLC
By
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Xxxx Xxxxx
Managing Member
