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EXHIBIT 10.10
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of August 26, 1998,
among CHANCELLOR MEDIA CORPORATION, a Delaware corporation ("Chancellor"), and
Xxxxxx X. Xxxxx ("Xxx Xxxxx"), R. Xxxxxx Xxxxx ("Xxxxx Xxxxx"), and CAPSTAR
BROADCASTING PARTNERS, L.P., a Delaware limited partnership ("Capstar" and,
collectively with Xxx Xxxxx and Xxxxx Xxxxx, "the "Stockholders").
WHEREAS, Chancellor, CAPSTAR BROADCASTING CORPORATION, a Delaware
corporation (the "Company") and CBC ACQUISITION COMPANY, INC., a Delaware
corporation and wholly-owned subsidiary of the Company ("Merger Sub"), propose
to enter into an Agreement and Plan of Merger dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement"; capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement) providing for the merger of Chancellor with and into Merger
Sub (the "Merger"), upon the terms and subject to the conditions set forth in
the Merger Agreement;
WHEREAS, the Stockholders collectively own of record or have to power
to direct the vote of (i) 67,589,121 shares of Class C Common Stock, $0.01 par
value, of the Company (the "Capstar Class C Common Stock"), (ii) 2,196,408
shares of Class C Common Stock issuable upon the exercise of certain warrants
(the "Warrant Shares"), (iii) 273,227 shares of Class A Common Stock, $0.01 par
value, of the Company ("Capstar Class A Common Stock"), and (iv) 22,667 shares
of Class A Common Stock issuable upon the exercise of certain stock options
(the "Option Shares") (such shares of Capstar Class C Common Stock and Capstar
Class A Common Stock, together with the Warrant Shares and Option Shares (in
each case, if issued and outstanding at the time of the Capstar Stockholders
Meeting (as defined in the Merger Agreement)) and any other shares of capital
stock of the Company acquired by such Stockholders after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
"Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Chancellor has requested that the Stockholders enter into this
Agreement in order to ensure that the Company obtain the Capstar Stockholders
Approval (as defined in the Merger Agreement);
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NOW, THEREFORE, to induce Chancellor to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Stockholders.
The Stockholders hereby represents and warrants to Chancellor as of the date
hereof as follows:
(a) Authority; Noncontravention. (i)
Capstar has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Capstar, and the
consummation of the transactions contemplated hereby, have been duly
authorized by all necessary partnership action on the part of Capstar.
This Agreement has been duly authorized, executed and delivered by
Capstar and constitutes a valid and binding obligation of Capstar
enforceable in accordance with its terms. The execution and delivery
of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof (including
Section 3 of this Agreement) will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time or
both) under any provision of, the limited partnership agreement of
Capstar, any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to Capstar or
to Capstar's property or assets.
(ii) Each of Xxx Xxxxx and Xxxxx Xxxxx has full
power and authority to enter into this Agreement. Each of Xxx
Xxxxx and Xxxxx Xxxxx has legal capacity to enter into this
Agreement and to assume and perform his obligations hereunder.
(b) The Subject Shares. The Stockholders are the
record and beneficial owner of, and have good and marketable title to,
the Subject Shares, free and clear of any claims, liens, encumbrances
and security interests whatsoever. The Stockholders do not own, of
record or beneficially, any shares of capital stock of the Company
other than the Subject Shares. The Stockholders have the sole right
to vote the Subject Shares. None of the Subject Shares is subject to
any voting trust or other agreement, arrangement
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or restriction with respect to the voting of the Subject Shares,
except as contemplated by this Agreement.
2. Representations and Warranties of Chancellor. Chancellor
hereby represents and warrants to the Stockholders as of the date hereof that
Chancellor has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Chancellor, and the consummation of
the transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of Chancellor. This Agreement has been
duly executed and delivered by Chancellor and constitutes a valid and binding
obligation of Chancellor enforceable in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, the certificate of
incorporation or bylaws of Chancellor, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to Chancellor or
to Chancellor's property or assets.
3. Covenants of the Stockholders. Until the termination of this
Agreement in accordance with Section 6, the Stockholders each agree as follows:
(a) At any meeting of stockholders of the Company
called to vote upon the Capstar Stockholder Proposals (as defined in
the Merger Agreement) or the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote,
consent or other approval (including by written consent) with respect
to the Merger and the Merger Agreement is sought, the Stockholders
shall vote (or cause to be voted) in favor of such proposals and any
of the other transactions contemplated by the Merger Agreement, the
number of Subject Shares that equals the percentage of total Subject
Shares held by the Stockholder as the percentage of shares of Class A
Common Stock (other than shares held by Xxx Xxxxx, Xxxxx Xxxxx or
their respective affiliates) that vote (in person or by proxy) in
favor of the Merger.
(b) At any meeting of the stockholders of the
Company or at any adjournment thereof or in any other circumstances
upon which the
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Stockholders' vote, consent or other approval is sought, the
Stockholders shall vote (or cause to be voted) the Subject Shares
against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other takeover
proposal or Acquisition Proposal as such term is defined in Section
5.5(c) of the Merger Agreement (an "Acquisition Proposal") or (ii) any
amendment of the Company's certificate of incorporation or bylaws or
other proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would
in any manner impede, frustrate, prevent or nullify the Merger, the
Merger Agreement or any of the other transactions contemplated by the
Merger Agreement or change in any manner the voting rights of the
Capstar Class A Common Stock, Capstar Class C Common Stock, or the
Class B Common Stock, $0.01 par value, of Capstar. The Stockholders
further agree not to commit or agree to take any action inconsistent
with the foregoing.
(c) Except as provided in the immediately succeeding
sentence of this Section 3(c), the Stockholders agree not to (i) sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, the "Transfer"), or enter into any contract, option or
other arrangement (including any profit sharing agreement) with
respect to the Transfer of the Subject Shares to any person other than
pursuant to the terms of the Merger, or (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, in
connection with, directly or indirectly, any Acquisition Proposal, and
agrees not to commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, the Stockholders shall have the right,
for tax or estate planning purposes, to Transfer the Subject Shares to
a transferee provided that, as a condition to any such Transfer, each
such transferee shall execute and deliver to Chancellor a counterpart
of this Agreement and expressly agree to be bound hereby;
(d) During the term of this Agreement, the
Stockholders shall not, nor shall it permit any affiliate, investment
banker, attorney or other adviser or representative of the
Stockholders to, (i) directly or indirectly solicit, initiate or
encourage the submission of, any Acquisition Proposal or (ii) except
as permitted under the terms of the Merger Agreement, directly or
indirectly participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to, or take any
other action to
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facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal.
(e) Until after the Merger is consummated or the
Merger Agreement is terminated, the Stockholders shall use all
reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with Chancellor
in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the Merger
and the other transactions contemplated by the Merger Agreement.
4. Further Assurances. The Stockholders will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Chancellor may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
5. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
without the prior written consent of the other parties, except that Chancellor
may assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Chancellor. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
6. Termination. This Agreement shall terminate upon the earlier
of (a) the termination of the Merger Agreement in accordance with Section 8.1
thereof, or (b) the Effective Time of the Merger.
7. General Provisions.
(a) Amendments. This Agreement may not be
amended except by an instrument in writing signed by each of the
parties hereto.
(b) Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery)
to Chancellor in accordance with Section 10.1 of the Merger Agreement
and to the Stockholders at their
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respective addresses set forth on the signature pages hereto (or at
such other address for a party as shall be specified by like written
notice).
(c) Interpretation. When a reference is made in
this Agreement to Sections, such reference shall be to a Section to
this Agreement unless otherwise indicated. 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. Wherever the
words "include," "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more of the
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that each party need not sign the
same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents and instruments referred to
herein) (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and (ii) is not
intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
(f) Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State
of Delaware regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.
8. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to
the personal jurisdiction of any Federal court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby,
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(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such party will not bring any action relating to this Agreement or
the transactions contemplated hereby in any court other than a Federal court
sitting in the state of Delaware or a Delaware state court and (iv) waives any
right to trial by jury with respect to any claim or proceeding related to or
arising out of this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Chancellor has caused this Agreement to be signed
by its officer thereunto duly authorized and the Stockholders have duly signed
this Agreement, all as of the date first written above.
CHANCELLOR MEDIA CORPORATION
By: /s/ XXXX X. XXXXXX
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Name:
Title:
(Signatures continued on following page)
(Signature Page to Voting Agreement)
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CAPSTAR BROADCASTING PARTNERS, L.P.,
a Delaware limited partnership
By: HM3/CAPSTAR PARTNERS, L.P.,
a Texas limited partnership, its
general partner
By: HM3/CAPSTAR, INC.,
a Texas corporation, its general
partner
By: /s/ XXXXXX X. XXXXX
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Name:
Title:
Address:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(Signatures continued on following page)
(Signature Page to Voting Agreement)
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/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Address:
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(Signatures continued on following page)
(Signature Page to Voting Agreement)
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/s/ R. XXXXXX XXXXX
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R. Xxxxxx Xxxxx
Address:
c/o Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(Signature Page to Voting Agreement)