VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of this 28th day of
February, 2000, is entered into by and among CLEAR CHANNEL COMMUNICATIONS, INC.,
a Texas corporation ("Parent"), and XXXXXX X. XXXXXX (the "Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, CCU II Merger Sub, Inc., a Delaware corporation ("Merger
Sub"), and SFX Entertainment, Inc., a Delaware corporation (the "Company"), have
entered into an Agreement and Plan of Merger of even date herewith (as the same
may be amended from time to time, 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 Stockholder is the record or Beneficial
Owner of the number of shares (the "Shares") of Class A common stock, par value
$0.01 per share, of the Company (the "Company Class A Common Stock"), and of
Class B common stock, par value $0.01 per share, of the Company (the "Company
Class B Common Stock" and, together with the Company Class A Common Stock, the
"Company Common Stock"), set forth on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
is 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. Definitions. Capitalized terms not expressly defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
(a) "Affiliate" of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first Person.
(b) "Amendment Proposal" shall mean the proposal to amend the
Company's Amended and Restated Certificate of Incorporation as contemplated
in Section 3.3 of the Merger Agreement.
(c) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having voting power with respect to such securities
(as determined pursuant to Rule 13d-3(a)(1) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
(d) "Equity Hedging Transaction" shall mean any equity swap, collar or
other derivative instrument that xxxxxx the Stockholder's risk with respect
to the value of all or a portion of the Shares, provided that the term or
settlement date with respect to any such instrument is on or after January
31, 2001 and, prior to settlement, the Stockholder retains the right to
vote the Shares.
(e) "Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or other entity.
2. Voting Agreement. From the date of this Agreement and ending as of the
Termination Date, the Stockholder 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
the Company, and at any adjournment or adjournments thereof, or pursuant to any
consent in lieu of a meeting or otherwise:
(a) in favor of the Merger and the approval and adoption of the terms
contemplated by the Merger Agreement and the Amendment Proposal and any
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 the Company under the Merger
Agreement; and
(c) except for all such actions which the Company may undertake under
the Merger Agreement, against (i) 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, (ii) a sale or transfer (other than to a subsidiary of the
Company) of assets of the Company or any of its material subsidiaries
comprising more than 15% of the assets of the Company on a consolidated
basis, (iii) any change in a majority of the Board of Directors of the
Company other than in connection with an annual meeting of the shareholders
of the Company with respect to the slate of directors proposed by the
incumbent Board of Directors of the Company (in which case he agrees to
vote for the slate proposed by the incumbent Board) or (iv) 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.
3. Covenants, Representations and Warranties of the Stockholder and Parent.
(a) The Stockholder hereby represents, warrants and covenants to
Parent as follows:
(i) Ownership. As of the date of this Agreement, the Stockholder
is either (A) the record and Beneficial Owner of, or (B) the
Beneficial Owner but
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not the record holder of, the number of issued and outstanding Shares
set forth on Part A of Schedule I hereto and the Options and SARs set
forth on Part B of Schedule I hereto. As of the date of this
Agreement, the Shares set forth on Part A of Schedule I hereto
constitute all of the issued and outstanding Shares owned of record or
Beneficially Owned by the Stockholder. Except as otherwise set forth
in Part A to Schedule I, the Stockholder has the sole power to agree
to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares set forth on Part A of Schedule I hereto,
with no material limitations, qualifications or restrictions on such
rights, subject to applicable securities laws, the terms of this
Agreement and to the right of pledgees under pledge agreements entered
into in connection with bona fide lending transactions that are not
entered into in connection with an Acquisition Proposal.
(ii) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. This Agreement has
been duly and validly executed and delivered by the Stockholder and
constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms
(except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or 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)). There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the
Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of
the transactions contemplated hereby. If the Stockholder is married
and the Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's
spouse, enforceable against such person in accordance with its terms
(except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or 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)).
(iii) No Conflicts. As of the date of this Agreement, except for
filings under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), if applicable no filing with, and no permit,
authorization, consent or approval of, any state or federal public
body or authority is necessary for the execution of this Agreement by
the Stockholder and the consummation by the Stockholder of the
transactions contemplated hereby, except where the failure to obtain
such consent, permit, authorization, approval or filing would not
materially interfere with the Stockholder's ability to perform his
obligations hereunder, and none of the execution and delivery of this
Agreement by the Stockholder, the consummation by the Stockholder of
the transactions contemplated hereby or compliance by the Stockholder
with any of the provisions hereof shall (A) result in a violation or
breach of, or constitute (with or without notice or lapse of time or
both) a default
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(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any material note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Stockholder is a party or by which the Stockholder or any of his
properties or assets may be bound, or (B) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Shares, in each such case
except to the extent that any conflict, breach, default or violation
would not interfere with the ability of the Stockholder to perform its
obligations hereunder.
(iv) No Encumbrances. Except (A) as required by Section 2, (B)
for pledges or encumbrances created in compliance with Section
3(a)(vi), and (C) items listed in Schedule I, at all times during the
term hereof, all of the Shares will be held by the Stockholder, or by
a nominee or custodian for the benefit of the Stockholder, or by a
family member or Affiliate of the Stockholder (subject to the
conditions set forth in clause (vi) below) free and clear of all
liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any liens, claims, understandings or
arrangements that do not limit or impair Stockholder's ability to
perform his obligations under this Agreement.
(v) No Solicitation. The Stockholder shall comply with the terms
of Section 5.10 of the Merger Agreement to the extent such terms would
be applicable to him.
(vi) Restriction on Transfer, Proxies and Non-Interference.
Except as otherwise contemplated by the Merger Agreement or this
Agreement, from and after the date of this Agreement and ending on the
Termination Date, the Stockholder shall not, directly or indirectly
without the consent of Parent in respect of any Acquisition Proposal
or otherwise: (A) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of (each, a "Transfer"),
any or all of the Shares, or any interest therein, (B) grant any
proxies or powers of attorney, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares, (C) enter
into any agreement or arrangement providing for any of the actions
described in clause (A) or (B) above or (D) take any action that would
reasonably be expected to have the effect of preventing or disabling
the Stockholder from performing the Stockholder's obligations under
this Agreement; provided, however, the Stockholder may, without the
consent of Parent, (x) Transfer his Shares to members of his family
and/or Affiliates, further provided, however, that such transferees
agree to be bound by the terms of this Agreement; (y) pledge or
encumber all or any portion of the Shares in connection with a bona
fide lending
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transaction with any institutional lender that is not entered into in
connection with an Acquisition Proposal; and (z) engage in an Equity
Hedging Transaction.
(vii) Further Assurances. From time to time, at Parent's request
and without further consideration, the Stockholder shall execute and
deliver such additional documents as may be necessary or desirable to
consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(b) Parent hereby represents, warrants and covenants to the
Stockholder as follows:
(i) Organization, Standing and Corporate Power. Parent is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, with full
corporate power and authority to own its properties and carry on its
business as presently conducted. Parent has the corporate power and
authority to enter into and perform all of its obligations under this
Agreement and to consummate the transactions contemplated hereby.
(ii) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority
is necessary for the execution of this Agreement by either Parent and
the consummation by Parent of the transactions contemplated hereby,
except where the failure to obtain such consent, permit,
authorization, approval or filing would not interfere with its ability
to perform its obligations hereunder, and none of the execution and
delivery of this Agreement by Parent, the consummation by Parent of
the transactions contemplated hereby or compliance by Parent with any
of the provisions hereof shall (A) conflict with or result in any
breach of any applicable organizational documents applicable to
Parent, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Parent is a party or by which
Parent or any of Parent's properties or assets may be bound, (C)
require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the
Exchange Act) with, or notification to, any government entity, (D)
require any material consent, authorization or approval of any person
other than a governmental entity, or (E) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to Parent or any of Parent's properties or assets, in each
such case except to the extent that any conflict, breach, default or
violation would not interfere with the ability of Parent to perform
its obligations hereunder.
(iii) Execution, Delivery and Performance by Parent. The
execution, delivery and performance of this Agreement and the
consummation of the
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transactions contemplated hereby have been duly and validly authorized
by the Board of Directors of Parent, and Parent has taken all other
actions required by law, its Amended and Restated Certificate of
Incorporation and its Bylaws to consummate the transactions
contemplated by this Agreement. This Agreement constitutes the valid
and binding obligations of Parent and is enforceable in accordance
with its terms, except as enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally.
4. Recapitalization; Option Exercise. In the event of a stock dividend or
distribution, or any change in the Shares (or any class thereof) by reason of
any split-up, recapitalization, combination, exchange of shares or the like, the
term "Shares" shall include, without limitation, all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
(or any class thereof) may be changed or exchanged as may be appropriate to
reflect such event. The term "Shares" shall also include any shares of Company
Common Stock acquired by the Stockholder after the date of this Agreement and
before the Termination Date.
5. Stockholder Capacity. The Stockholder does not make any agreement or
understanding herein in the Stockholder's capacity as a director or officer of
the Company. The Stockholder executes this Agreement solely in his capacity as a
record owner and/or Beneficial Owner of the Shares and nothing herein shall
limit or affect any actions taken by the Stockholder or any designee of the
Stockholder in his capacity as an officer or director of the Company or any of
its Subsidiaries.
6. Indemnification. Parent shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless the Stockholder 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 or on
behalf of the Company or any stockholder of the Company asserting any breach by
the Stockholder of any fiduciary duty on his part to the Company or the other
stockholders of the Company by reason of the Stockholder entering into this
Agreement, for a period of six years after the date hereof. In the event the
Stockholder seeks indemnification from Parent for any such claim, action, suit,
proceeding or investigation (whether arising before or after the termination of
this Agreement), (a) Parent shall pay the fees and expenses of one counsel
selected by such Stockholder and reasonably acceptable to Parent to represent
such Stockholder in connection therewith promptly after statements therefor are
received, and (b) Parent will 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 in the event that any claim or claims for
indemnification under this Section 6 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 6 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.
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7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses or the addresses set forth on the signature pages hereto:
If to Stockholder: Xxxxxx X. Xxxxxx
c/o SFX Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
If to Parent: Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Mount
Xxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
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(d) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(e) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by the Stockholder of any covenants or
agreements contained in this Agreement will cause the Parent to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event
of any such breach the Parent shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity.
(f) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(g) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity
who or which is not a party hereto; provided that, in the event of the
Stockholder's death, the benefits and obligations of the Stockholder
hereunder shall inure to his successors and heirs.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(j) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware in
any action, suit or proceeding arising in connection with this Agreement,
and agrees that any such action, suit or proceeding shall be brought only
in such court (and waives any objection based on
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forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose
referred to in this paragraph and shall not be deemed to be a general
submission to the jurisdiction of said Court or in the State of Delaware
other than for such purposes. Each party hereto hereby waives any right to
a trial by jury in connection with any such action, suit or proceeding.
(k) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement. This Agreement shall
not be effective as to any party hereto until such time as this Agreement
or a counterpart thereof has been executed and delivered by each party
hereto.
8. Termination. This Agreement shall terminate without any further action
on the part of any party hereto on the first to occur of the Effective Time or
the Termination Date.
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VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Stockholder and a duly authorized officer of Parent on the day and year
first written above.
PARENT:
CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
Executive Vice President
and Chief Financial Officer
Address: 000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
STOCKHOLDER:
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
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SCHEDULE I
Part A
Name of Owner Shares
------------- ------
Xxxxxx X. Xxxxxx 28,500 shares of Company Class A Common Stock
0 shares of Company Class B Common Stock
Part B
Name of Owner Other Securities
------------- ----------------
Xxxxxx X. Xxxxxx 240,000 Options and Warrants
