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VOTING AGREEMENT
This Voting Agreement (the "Agreement") is entered into as of
September 22, 1999 by and between Xxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx") and
Infinity Broadcasting Corporation, a Delaware corporation ("Infinity"), as
shareholders of Westwood One, Inc., a Delaware corporation (the "Company").
Xxxxxxxxxx and Infinity are sometimes referred to herein individually as a
"Stockholder" and collectively as the "Stockholders."
WHEREAS, the Company, Copter Acquisition Corp., a wholly owned
subsidiary of the Company ("Merger Sub"), and Metro Networks, Inc. ("Metro")
entered into an Agreement and Plan of Merger, dated as of June 1, 1999 (as
amended, the "Merger Agreement"; capitalized terms used without definition
herein have the meanings ascribed thereto in the Merger Agreement);
WHEREAS, the Merger Agreement provides, among other things,
for the merger of Merger Sub with and into Metro and, in connection with such
merger, the stockholders of Metro would receive shares of the Company in
exchange for their shares of Metro;
WHEREAS, pursuant to the terms of the Merger Agreement, the
Company agreed to take all necessary action to cause Xxxxxxxxxx and a designee
selected by Xxxxxxxxxx (the "Xxxxxxxxxx Designee") to serve on the Board of
Directors of the Company;
WHEREAS, Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx and
the Company have entered into the Company Stockholders Voting Agreement,
pursuant to which Xxxxxxxxxx has agreed, inter alia, to enter into this
Agreement; and
WHEREAS, Infinity and Metro have entered into the Parent
Stockholder Voting Agreement, pursuant to which Infinity has agreed, inter alia,
to enter into this Agreement.
NOW, THEREFORE, in consideration of the of the foregoing
recitals and the mutual covenants and agreement contained herein and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
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1. ELECTION OF DIRECTORS.
(a) To the extent not prohibited by applicable law and the
rules of any securities exchange on which the Company's voting capital stock is
then traded, at each annual or special meeting of the stockholders of the
Company occurring on or after the date of this Agreement at which directors of
the Company are to be elected, or by a consent in writing of such stockholders
in lieu thereof, Infinity agrees to vote (or cause to be voted) all shares of
capital stock of the Company then owned or the voting of which is controlled by
it or its Affiliates (as defined below) that are entitled to vote for the
election of directors of the Company, whether now owned or controlled or if
ownership or control is hereafter acquired, in favor of the election of
Xxxxxxxxxx and the Xxxxxxxxxx Designee, to the extent Xxxxxxxxxx and/or the
Xxxxxxxxxx Designee has been nominated by the Company's Board of Directors or a
committee thereof, as directors of the Company.
(b) To the extent not prohibited by applicable law and the
rules of any securities exchange on which the Company's voting capital stock is
then traded, at each annual or special meeting of the stockholders of the
Company occurring on or after the date of this Agreement at which directors of
the Company are to be elected, or by a consent in writing of such stockholders
in lieu thereof, Xxxxxxxxxx agrees to vote (or cause to be voted) all shares of
capital stock of the Company then owned or the voting of which is controlled by
him or his Affiliates that are entitled to vote for the election of directors of
the Company, whether now owned or controlled or if ownership or control is
hereafter acquired, in favor of the election of such persons Infinity shall have
selected as designees for election to the Board of Directors of the Company
(collectively, "Infinity Designees"), to the extent the Infinity Designees have
been nominated by the Company's Board of Directors or a committee thereof, as
directors of the Company.
(c) Each of the Stockholders agrees that he or it (as
applicable) shall vote (i) in favor of (A) the removal from the Company's Board
of Directors of the Xxxxxxxxxx Designee or an Infinity Designee, as the case may
be, when such removal is demanded by Xxxxxxxxxx or Infinity, as the case may be,
and (B) the election of a successor designee of Xxxxxxxxxx or Infinity, as the
case may be, to fill any vacancy caused by such removal or by the resignation,
death or disability of the applicable designee and (ii) in opposition to any
attempt to remove (other than for cause) Xxxxxxxxxx or the Xxxxxxxxxx Designee
or Infinity Designees, as the case may be, without the written consent of the
Stockholder who designated the director that is the subject of such attempt to
remove.
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(d) As used herein, "Affiliate" shall mean, with respect to a
Stockholder, any person or entity that such Stockholder directly or indirectly
controls.
2. OTHER MATTERS.
(a) Except as expressly provided in Section 1, this Agreement
shall not extend to voting upon questions and matters upon which stockholders of
the Company have a right to vote under the Certificate of Incorporation or
Bylaws of the Company, or otherwise.
(b) Nothing in this Voting Agreement, express or implied,
shall relieve any director of the Company of any fiduciary or other duties or
obligations he or she may have to the Company's stockholders.
(c) Nothing in this Voting Agreement shall be deemed to
restrict or limit in any manner whatsoever the right of a Stockholder to sell,
transfer or otherwise dispose of any shares of capital stock of the Company. For
greater certainty, except to the extent a Stockholder or its Affiliates own or
control the voting of any shares that are sold, transferred or otherwise
disposed of, the voting obligations set forth in Section 1 of this Agreement
shall not apply to any such shares after such sale, transfer or other
disposition.
3. TERMINATION.
This Agreement shall terminate and be of no further force or
effect upon the earliest to occur of the following: (a) the fourth anniversary
of the date of this Agreement; (b) the date as of which a Stockholder, including
his or its Affiliates, owns or controls less than 50% of the number of shares of
capital stock of the Company entitled to vote for the directors of the Company
owned by such Stockholders (and his or its Affiliates) on the date hereof (after
giving effect to the Merger), as adjusted for stock dividends, stock splits,
recapitalizations or similar type transactions; and (c) the written agreement of
each of the parties hereto agreeing to terminate this Agreement.
4. REPRESENTATIONS AND WARRANTIES.
Each Stockholder represents and warrants to the other Stockholder as
follows:
(a) Schedule I set forth, opposite such Stockholder's name,
the number and type of shares of each class of capital stock of the Company (the
"Shares") owned or the voting of which is controlled by such Stockholder. Such
Stockholder is the
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lawful owner of such Shares, free and clear of all liens, charges, options,
rights, encumbrances, stockholders agreements, voting agreements, agreements to
transfer or otherwise dispose of such Shares and commitments of every kind,
other than this Agreement and as disclosed in Schedule II and has the sole power
to vote (or cause to be voted) the Shares as set forth in this Agreement. Except
as set forth on such Schedule I, neither such Stockholder nor any of his or its
Affiliates owns or holds any rights to acquire any additional shares of any
class of capital stock or other securities of the Company or any interest
therein or any voting rights with respect to any additional shares of any class
of capital stock or any other securities of the Company.
(b) This Agreement has been duly executed and delivered by a
duly authorized officer of such Stockholder or, if the Stockholder is a natural
person, the Stockholder has the legal capacity to execute this Agreement.
(c) This Agreement constitutes the valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance with its
terms.
(d) The execution and delivery of this Agreement by such
Stockholder do not violate or breach, and will not give rise to any violation or
breach, of such Stockholder's charter or by-laws, to the extent applicable, or,
except as will not materially impair the ability of such Stockholder to
effectuate, carry out or comply with all of the terms of this Agreement, any
order, writ, injunction, decree, law, statute, rule or regulation, third party
consent, approval, filing, registration or similar requirement of any court or
tribunal or administrative, governmental or regulatory body, agency or authority
or any agreement or contract by which such Stockholder or his or its assets or
properties are bound.
5. SPECIFIC PERFORMANCE.
It is agreed and understood that monetary damages would not
adequately compensate an injured party 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. Each party hereto waives
any claim or defense that there is an inadequate remedy at law for such breach
or threatened breach.
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6. GOVERNING LAW.
This Agreement and all amendments hereof shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the conflict of laws rules or provisions.
7. AMENDMENTS AND WAIVERS.
Any term hereof may be amended and the observance of any term
hereof may be waived only with the written consent of each party hereto. Any
amendment or waivers so effected shall be binding upon the Stockholders and any
assignee or transferee thereof.
8. SEVERABILITY.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
9. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. MANNER OF VOTING.
The voting of shares pursuant to this Agreement may be
effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
11. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement contains the entire understanding of the
Stockholders, and there are no further or other agreements or understandings,
written or oral, in effect between the Stockholders relating to the subject
matter hereof. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
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12. NOTICES.
Any notice required or permitted by this Agreement shall be in
writing and shall be delivered personally or by facsimile or sent prepaid
registered or certified mail, return receipt requested, addressed to the other
party at the address set forth on the signature page to this Agreement or at
such other address for which such party gives notice hereunder. Notices sent by
mail shall be deemed to have been given three (3) days after deposit in the
mail.
13. HEADINGS.
The captions, headings and arrangements contained herein are
for convenience only and do not intend to limit or define the terms and
provisions hereof.
14. COOPERATION.
Each party hereto shall take such further action and shall
execute and deliver such further documents as may be reasonably requested by any
other party in order to carry out the provisions and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
INFINITY BROADCASTING CORPORATION
By:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Address:
c/o Weinstein, Spira & Company
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
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Schedule I
Ownership of Shares
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Name of Stockholder Class and Series Number of Shares
of Capital Stock Beneficially Owned
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Xxxxx X. Xxxxxxxxxx Common Stock 11,573,413
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Series A Convertible 3,824,625
Preferred Stock
---------------------------------------------------------------------------------------------
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Infinity Broadcasting Common Stock 8,000,000
Corporation (Shares are
owned by Infinity
Network, Inc., an indirect
wholly-owned subsidiary
of Infinity Broadcasting
Corporation)
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Schedule II
Liens on Shares
3,824,625 shares of Series A Convertible Preferred Stock and 1,575,375
shares of common stock are pledged under the stock loan agreements between Xxxxx
Xxxxxxxxxx and the Company (as assignee of Metro Networks, Inc.) or Xxxxx
Xxxxxxxxxx and certain trusts for the benefit of his children.
525,000 shares of common stock held by Xxxxxxx Sachs & Co. are pledged
to secure a loan of $5,000,000 made by Xxxxxxx Xxxxx & Co. to an entity
controlled by Xx. Xxxxxxxxxx.
