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EXHIBIT 99.1
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of this 2nd day of
October, 1999, is entered into by and among AMFM INC., a Delaware corporation
(the "Company"), and X. XXXXX XXXX and 4-M PARTNERS, LTD., A Texas limited
partnership (the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Company, CLEAR CHANNEL COMMUNICATIONS, INC., a Texas
corporation ("Parent"), and CCU Merger Sub, Inc., a Delaware corporation
("Merger Sub"), 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 Stockholders are the record owners
of the number of shares (the "Shares") of common stock, par value $0.10 per
share, of Parent ("Parent Common Stock") set forth on Schedule I attached
hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has required that the Stockholders agree, and the
Stockholders are 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. Each of the Stockholders 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 Parent, and at any adjournment or adjournments thereof,
or pursuant to any consent in lieu of a meeting or otherwise:
(a) in favor of the issuance of Parent Common Stock to the
stockholders of the Company in the Merger, any other matters required by Section
5.3 of the Merger Agreement as a Parent Stockholder Approval, and all 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 Parent under the Merger Agreement; and
(c) except for all such actions which may be permitted to Parent
under Section 5.1(b) of the Merger Agreement, against (a) any extraordinary
corporate transaction, such as a merger, rights offering, reorganization,
recapitalization or liquidation involving Parent or any of its subsidiaries
other than the Merger, (b) a sale or transfer of a material amount of assets
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of Parent or any of its material subsidiaries or the issuance of any securities
of Parent or any subsidiary, (c) any change in the Board of Directors of Parent
other than in connection with an annual meeting of the shareholders of Parent
with respect to the slate of directors proposed by the incumbent Board of
Directors of Parent or the Parent Stockholder Approval (as defined in the Merger
Agreement) (in which case they agree 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 the Stockholders. Each Stockholder
represents and warrants to the Company as follows in each case as of the date
hereof:
2.1. 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
(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
such 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 give 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 results 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 such Stockholder
or the Shares.
2.3. Ownership of Shares. Except as set forth in Schedule II and
except as may be provided in the organizational documents, if any, of any
Stockholder, the Stockholders are the record owners of the Shares free and clear
of any security interests, liens, charges, encumbrances, options or restriction
on the right to vote the Shares. The Stockholders holds exclusive power to vote
the Shares, subject to the limitations set forth in Section 1 of this Agreement.
The Shares represent all of the shares of capital stock of Parent owned of
record by the Stockholders.
3. Representations and Warranties the Company. The Company represents
and warrants to the Stockholders as follows in each case as of the date hereof:
3.1. Binding Agreement. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has full
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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 the Company and the consummation of
the transactions contemplated hereby and thereby have been duly and validly
authorized by the Board of Directors of the Company, and no other corporate
proceedings on the part of the Company except for the approval and adoptions of
the Merger Agreement and approval of the Merger by holders of a majority of the
shares of Company Common Stock are necessary to authorize the execution,
delivery and performance of this Agreement and the Merger Agreement by the
Company and the consummation of the transactions contemplated hereby and
thereby. The Company has duly and validly executed this Agreement and this
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company 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 the Company of the transactions contemplated
hereby, nor the compliance by the Company with any of the provisions hereof will
(a) conflict with or result in a breach of any provision of its Certificate 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 the Company.
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 Parent on, of or affecting the Shares or (ii) a Stockholder becomes the
record owner of any additional shares of Parent 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 Parent held by the
Stockholder immediately following the effectiveness of the events described in
clause (i) or a Stockholder becoming the record owner thereof, as described in
clause (ii), as though they were Shares hereunder. Each of the Stockholders
hereby agree, while this Agreement is in effect, to promptly notify the Company
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of the number of any new shares of Parent Common Stock acquired by such
Stockholder, if any, after the date hereof.
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, with respect to a
Stockholder to whom any of the following applies, as applicable, 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 such Stockholder ceases to own any Shares; provided, however, this
Agreement shall not terminate with respect to the other Stockholder to whom none
of the foregoing clauses (i) through (iv) applies.
7. Indemnification. The Company shall, to the fullest extent permitted
under applicable law, indemnify and hold harmless each of the Stockholders
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 Parent or any stockholder of Parent asserting any breach by the
Stockholder of any fiduciary duty on his part to Parent or the other
stockholders of Parent by reason of the Stockholder entering into this
Agreement, for a period of six years after the date hereof. In the event a
Stockholder seeks indemnification from the Company for any such claim, action,
suit, proceeding or investigation (whether arising before or after the
termination of this Agreement), (a) the Company shall pay the fees and expenses
of one counsel selected by such Stockholder and reasonably acceptable to the
Company to represent such Stockholder in connection therewith promptly after
statements therefor are received, and (b) the Company will cooperate in the
defense of any such matter; provided, however, that the Company 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 Company, to:
AMFM Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile No.: (000) 000-0000
with a copy to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
If to the Stockholders, to:
X. Xxxxx Xxxx
c/o Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000-0000
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
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 the Company.
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 of the Stockholders nor any designee
of the Stockholders who is or becomes during the term hereof a director or
officer of Parent makes any agreement or understanding herein in its capacity as
such director or officer. The Stockholder signs solely in his or her capacity as
the record holder and beneficial 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 or her capacity as an officer or director of
Parent. 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 the Company on the day and
year first written above.
THE COMPANY:
AMFM INC., A DELAWARE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDERS:
/s/ X. Xxxxx Xxxx
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X. XXXXX XXXX
4-M PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP
By: /s/ X. Xxxxx Xxxx
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X. Xxxxx Xxxx
General Partner
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SCHEDULE I TO
VOTING AGREEMENT
Name of Stockholder Number of Shares
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X. Xxxxx Xxxx 8,996,649
4-M PARTNERS, LTD., a Texas limited partnership 20,000,000
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SCHEDULE II TO
VOTING AGREEMENT
The Shares held by X. Xxxxx Xxxx are subject to that certain Buy-Sell Agreement,
dated May 31, 1977, by and among Parent, X. Xxxxx Xxxx and X.X. XxXxxxx.
