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EXHIBIT 2.5.10
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "AGREEMENT"), dated as of July 1, 1996, is
made and entered into by and among XxXxxxx X. Xxxxxxxx, Xx., XxXxxxx X.
Xxxxxxxx, Xx., XxXxxxx X. Xxxxxxxx, Xx., as Custodian for Xxxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and Xxxx X. Xxxxxxx (collectively, the
"SHAREHOLDERS"), and for the purposes of Section 4 hereof only, Xxxxxxxx Media
System, Inc., a Texas corporation (the "CORPORATION").
RECITALS:
A. Each of the Shareholders owns shares of (a) common stock, par
value $1.00 per share, of the Corporation ("COMMON STOCK"), and/or (b) Junior
Preferred Stock, par value $10.00 per share, of the Corporation ("JUNIOR
PREFERRED STOCK") as set forth on the signature pages hereto.
C. The holders of Common Stock and the Junior Preferred Stock are
each entitled to certain voting rights with respect to matters submitted to the
shareholders of the Corporation.
B. The Shareholders desire to impose certain requirements on the
voting of the shares of Common Stock and Junior Preferred Stock owned by the
Shareholders (the "SHARES") as of the date hereof as set forth herein.
THEREFORE, in consideration of the premises, mutual covenants, and
agreements contained herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Shareholders hereby
agree as follows:
AGREEMENTS:
1. Notification and Determination Procedures; Voting. (a) From the
date hereof until such time as the Company and the Shareholders shall have
received any and all approvals required by the Federal Communications
Commission or under the Communications Act of 1934, as amended, to amend the
provisions of this Agreement pursuant to Section 1(b) (the "APPROVALS"), before
any proposal (a "PROPOSAL") is to be voted on by the holders of Common Stock
and/or Junior Preferred Stock, XxXxxxx X. Xxxxxxxx, Xx. or XxXxxxx X.
Xxxxxxxx, Xx. (the "CO-ADMINISTRATORS") shall, by written notice (the "VOTING
NOTICE"), instruct each of the other Shareholders whether all of the Shares
held by the Shareholders are to be (i) voted in favor of the Proposal, (ii)
voted against such Proposal, or (iii) not voted with respect to such Proposal.
The Shareholders agree that, until such time as this Agreement is
amended as provided in Section 1(b), the Shares shall be voted in such manner
as the Co-Administrators shall mutually agree and if, from time to time the
Co-Administrators shall be unable to reach agreement with respect to any
Proposal, NationsBank of Dallas, N.A., as successor to Interfirst Bank of
Harlingen, Harlingen, Texas, shall nominate a representative who shall be given
a vote for the purposes of breaking the deadlock with respect to any such
Proposal and determining the manner in which the Shares shall be voted pursuant
to this Agreement.
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Each Shareholder hereby agrees to attend each meeting of the
shareholders of the Corporation held during the term of this Agreement, in
person or by proxy, and to vote, or cause to be voted (or, if the shareholders
of the Corporation act by written consent, to consent in writing, or cause to
consent in writing, with respect to) all of the Shares owned by such
Shareholder or over which such Shareholder exercises voting control to be voted
in accordance with the instructions received from the Administrator in the
Voting Notice
(b) Upon receipt by the Company and the Shareholders of the Approvals
and with no further action on the part of the Company or the Shareholders , the
provisions of Section 1(a) shall be of no further force or effect and the
provisions of this Section 1(b) with respect to the voting of the Shares shall
become effective immediately .
At least five days before any Proposal is to be voted on by the
holders of Common Stock and/or the Junior Preferred Stock, each of the other
Shareholders shall notify XxXxxxx X. Xxxxxxxx, Xx. (who shall upon the receipt
of the Approvals become the sole Administrator) in writing whether such
Shareholder desires the Shares owned by such Shareholder to be voted for,
against, or not to be voted with respect to such Proposal. The Administrator
shall then calculate with respect to each Proposal whether the Shareholders
have indicated that a majority of the Shares should be voted for, against, or
should not be voted with respect to each Proposal. For the purposes of
determining how the Shares will be voted with respect to a Proposal, each share
of Common Stock shall be entitled to one vote and each share of Junior
Preferred Stock shall be entitled to .5555 of one vote (calculated as the
number of votes to which a share Junior Preferred Stock would be entitled if
such share were converted into Common Stock based upon a common stock value of
$180 per share). After such calculation, the Administrator shall notify each
of the other Shareholders in writing (the "VOTING NOTICE") whether the
Shareholders have indicated that a majority of the Shares should be voted for,
against, or should not be voted with respect to such Proposal or whether or not
there is not a majority in any of the three preceding categories.
Each Shareholder hereby agrees to attend each meeting of the
shareholders of the Corporation held during the term of this Agreement, in
person or by proxy, and to vote, or cause to be voted (or, if the shareholders
of the Corporation act by written consent, to consent in writing, or cause to
consent in writing, with respect to) all of the Shares owned by such
Shareholder or over which such Shareholder exercises voting control to be
voted. Each Shareholder hereby agrees, to the extent that any such vote is to
be made pursuant a proxy or written consent, to deliver such proxy or written
consent to the Administrator for further delivery to the Company or other
applicable party. Each Shareholder hereby agrees to vote or cause to be voted
all of the Shares owned by such Shareholder or over which such Shareholder
exercises voting control as follows:
(i) if the notice sent from the Administrator pursuant to this
Section 1(b) states that the Shareholders have indicated that a majority of the
Shares should be voted for a Proposal, each Shareholder shall cause all of the
Shares owned by the Shareholder or over which the Shareholder has voting
control to be voted for such Proposal;
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(ii) if the notice sent from the Administrator pursuant to this
Section 1(b) states that the Shareholders have indicated that a majority of the
Shares should be voted against a Proposal, each Shareholder shall cause all of
the Shares owned by the Shareholder or over which the Shareholder has voting
control to be voted against such Proposal;
(iii) if the notice sent from the Administrator pursuant to this
Section 1(b) states that the Shareholders have indicated that a majority of the
Shares should not be voted with respect to a Proposal, each Shareholder shall
cause all of the Shares owned by the Shareholder or over which the Shareholder
has voting control not to be voted with respect to such Proposal; and
(iv) if the notice sent from the Administrator pursuant to
Section 1(b) hereof states that the Shareholders have indicated that there is
not a majority of the Shares in any one of the three categories set forth in
clauses (i), (ii) or (iii) above, each Shareholder shall cause all of the
Shares owned by the Shareholder or over which the Shareholder has voting
control to be voted against such Proposal.
2. Conditional Irrevocable Proxies. To insure the performance of
each Shareholder's commitments set forth in Section 1 hereof, each Shareholder,
other than XxXxxxx X. Xxxxxxxx, Xx., hereby appoints XxXxxxx X. Xxxxxxxx, Xx.
or his designee, as his or her true and lawful proxy and attorney-in-fact, with
full power of substitution and resubstitution, to vote all Shares owned by such
Shareholder and subject to the provisions hereof upon any matter presented to
the shareholders of the Corporation, if (and only if) such Shareholder fails to
comply with the provisions of this Agreement. XxXxxxx X. Xxxxxxxx, Xx. hereby
agrees that he will vote such Shares in accordance with instructions contained
in the Voting Notice. The proxies and powers granted by each Shareholder
pursuant to this Section are coupled with an interest and are given to secure
the performance of such Shareholder's commitments under this Agreement. Such
proxies will be irrevocable for the term of this Agreement and will survive the
death, incompetency and disability of such Shareholder.
3. Proxies. Except as provided in Section 2 above, no Shareholder
shall grant a proxy with respect to, transfer any voting control over, or
create any right to vote any Shares without the prior written consent of a
majority of the other Shareholders.
4. Legends. The Company shall cause the certificates representing
the Shares, if any, to bear an appropriate legend to reflect the existence of
this Agreement.
5. Further Assurances. Each Shareholder agrees to take such further
action as the other Shareholders may reasonably request to carry out the intent
of this Agreement, including but not limited to executing and delivering from
time to time and at any time an irrevocable proxy or power of attorney with
respect to the Shares over which such Shareholder exercises voting control (it
being hereby acknowledged that such proxy or power shall be coupled with an
interest).
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6. Spouse's Consent. Each Shareholder who is married agrees to
obtain the signature on a counterpart hereof of such Shareholder's spouse for
the purpose of evidencing such spouse's knowledge of this Agreement,
acknowledging such spouse's agreement to be bound hereby, and binding that
spouse's community interest, if any, in the Shares covered by this Agreement
owned by such Shareholder; provided that the failure to obtain any such consent
shall not limit the effectiveness of this Agreement.
7. Specific Enforcement. It is agreed and understood that monetary
damages would not adequately compensate a Shareholder for the breach of this
Agreement by any party, that this Agreement shall be specifically enforceable,
and that any breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
8. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first-class
mail, postage prepaid, or delivered either by hand, messenger, nationally
recognized overnight courier service, or sent by electronic transmission
addressed, (a) if to a Shareholder, at such address as such Shareholder shall
have furnished the Administrator and the Corporation, and (b) if to the
Corporation or the Administrator, at 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000; Telecopy (000) 000-0000, or at such other address as the
Corporation or the Administrator shall have furnished to the Shareholders in
writing. Any such notice shall be deemed to have been duly given upon receipt.
Each Shareholder shall have the right to obtain a copy of any notice sent
pursuant to this Agreement.
9. Term. This Agreement shall remain in effect with respect to a
Shareholder until such time as the Shareholder ceases to hold Shares and shall
terminate in its entirety at such time as the Shares subject to this Agreement
shall represent in the aggregate less than 10% of the outstanding shares of
Common Stock and Junior Preferred Stock of the Corporation (or less than 10% of
the voting power of the outstanding capital stock of any successor
corporation).
10. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Texas.
11. Binding Effect. The provisions of this Agreement shall not be
binding upon a transferee of Shares other than a transferee in a "Permitted
Transfer". Except as provided in the preceding sentence, this Agreement shall
be binding upon the parties hereto and their respective heirs, successors,
representatives, and assigns. Each person who becomes a party to this
Agreement pursuant to this Section shall become a "Shareholder" as defined in
this Agreement. "PERMITTED TRANSFER" means any direct or indirect sale,
transfer, or other disposition (a) to a family member of the Shareholder or a
trust whose sole beneficiaries are family members of the Shareholder or (b)
with respect to a Shareholder that is a trust, to any beneficiary of the trust
or any family member of a beneficiary of the trust
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12. After Acquired Shares. The provisions of this Agreement shall
not apply to any subsequently acquired shares of Common Stock or Junior
Preferred Stock (or capital stock of any successor corporation), except for any
and all voting securities and instruments (a) received by a Shareholder as a
dividend or other distribution on the Common Stock or the Junior Preferred
Stock, (b) issued in connection with a combination, split, reclassification or
exchange of the Common Stock or the Junior Preferred Stock, or (c) received in
connection with a reorganization, recapitalization, consolidation or merger of
the Corporation. If at any time the Shares are converted into or exchanged for
a single class of stock, each Share shall be entitled to a single vote for the
purposes of the calculation described in Section 1 hereof.
13. Successor Administrators. (a) Until such time as the Approvals
have been received, the initial Co-Administrators (or any successor
Co-Administrator), may at any time appoint a successor Co-Administrator, who
may be a Shareholder or an officer of the Corporation (or any successor
corporation). Subject to the preceding provisions of this Section 13(a), if
both of the initial Co-Administrators die, resign, become incapacitated or
otherwise cease to act as Administrators, Xxxxxx X. Xxxxxxxx and the two most
senior officers of the Company (seniority to be determined by position or, if
equal in position, by tenure) shall become Administrators under this Agreement.
Notwithstanding what is stated above, if one or more successor
Co-Administrators (other than Xxxxxx X. Xxxxxxxx) appointed and serving
pursuant to the first or second sentence of this section dies, resigns, becomes
incapacitated or otherwise ceases to act as Co-Administrator, the next most
senior officer or officers (seniority to be determined in the same manner as in
the second sentence of this section) shall become a Co-Administrator or
Co-Administrator under this Agreement. If Xxxxxx X. Xxxxxxxx dies, resigns,
becomes incapacitated or otherwise ceases to act as a successor Co-
Administrator, the Shareholders by two-thirds vote shall elect an individual to
serve in his place. Unless another meaning is clearly indicated or required by
context or circumstances, the term "Administrator" shall mean and include the
initial Co-Administrator, and any successor Administrator or Co-Administrator.
(b) Upon receipt by the Company and the Shareholders of the
Approvals and with no further action on the part of the Company or the
Shareholders , the provisions of Section 13(a) shall be of no further force or
effect and the provisions of this Section 13(b) shall become effective
immediately. Upon the resignation, death or incapacity of XxXxxxx X. Xxxxxxxx,
Xx. (or any successor Administrator), the Shareholders by majority vote
(pursuant to provisions of Section 1(b)) shall select a successor
Administrator.
14. Invalid Provisions. If any provision of this Agreement is held
to be invalid or unenforceable, such provision shall automatically be severed
from this Agreement and there shall be automatically added to this Agreement a
provision as similar to such severed provision as may be valid and enforceable,
and the validity and enforceability of the other provisions of this Agreement
shall not be affected thereby.
15. Captions. The captions, headings, and arrangements used in this
agreement are for convenience only and do not in any way limit or amplify the
terms and provisions hereof.
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16. Amendments. This Agreement may be amended at any time by the
parties hereto only if such amendment is made in writing and signed by the
Company and Shareholders by a majority vote (calculated in accordance with the
provisions of Section 1(b)).
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EXECUTED in a number of multiple counterparts as of the date first
written above.
XXXXXXXX MEDIA SYSTEM, INC.
By: /s/ XxXXXXX X. XXXXXXXX, XX.
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Name: XxXxxxx X. Xxxxxxxx,Xx.
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Title: President
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/s/ XxXXXXX X. XXXXXXXX, XX.
28,833.54 shares of Junior Preferred Stock ---------------------------------
XxXxxxx X. Xxxxxxxx, Xx.
/s/ XxXXXXX X. XXXXXXXX, XX.
120,491.20 shares of Common Stock ---------------------------------
303 shares of Junior Preferred Stock XxXxxxx X. Xxxxxxxx, Xx.
/s/ XxXXXXX X. XXXXXXXX, XX.
51,519 shares of Common Stock ---------------------------------
303 shares of Junior Preferred Stock XxXxxxx X. Xxxxxxxx, Xx., as
Custodian for Xxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXXXX
142,462.40 shares of Common Stock ---------------------------------
303 shares of Junior Preferred Stock Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXXXX
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114,478.76 shares of Common Stock Xxxxxxx X. Xxxxxxxx
303 shares of Junior Preferred Stock
/s/ XXXX X. XXXXXXX
120,793.59 shares of Common Stock ---------------------------------
303 shares of Junior Preferred Stock Xxxx X. Xxxxxxx
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SPOUSAL CONSENT
By executing this Agreement, Xxxxxxx X. Xxxxxxxx'x spouse agrees (i) to
be bound in all respects by the terms hereof with respect to the same extent as
Xxxxxxx X. Xxxxxxxx and (ii) to bind his/her community property interest, if
any, in such Shares.
/s/ XXXXXXXX X. XXXXXXXX
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SPOUSAL CONSENT
By executing this Agreement, XxXxxxx X. Xxxxxxxx Xx.'s spouse agrees (i)
to be bound in all respects by the terms hereof with respect to the same
extent as XxXxxxx X. Xxxxxxxx, Xx. and (ii) to bind his/her community property
interest, if any, in such Shares.
/s/ XXXX X. XXXXXXXX
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