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EXHIBIT 2.2
AMENDED AND RESTATED
VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement"), dated as of
April 29, 1999, among CHANCELLOR MEDIA CORPORATION, a Delaware corporation
("Chancellor"), and Xxxxxx X. Xxxxx ("Xxx Xxxxx"), R. Xxxxxx Xxxxx ("Xxxxx
Xxxxx"), CAPSTAR BROADCASTING PARTNERS, L.P., a Delaware limited partnership
("Capstar") and the other parties listed on the signature pages hereto
(collectively, "the "Stockholders").
WHEREAS, Chancellor, CAPSTAR BROADCASTING CORPORATION, a Delaware
corporation (the "Company"), CMC MERGER SUB, INC., a Delaware corporation and
wholly-owned subsidiary of Chancellor ("Merger Sub"), and CBC ACQUISITION
COMPANY, INC., a Delaware corporation and wholly-owned subsidiary of the
Company ("Old Merger Sub"), are entering into an Amended and Restated Agreement
and Plan of Merger, dated as of August 26, 1998 and amended and restated as of
April 29, 1999 (as the same may be further 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 Merger
Sub with and into Capstar (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, Chancellor and the Stockholders have previously entered into
that certain Voting Agreement, dated as of August 26, 1998 (the "Old Voting
Agreement") relating to the transactions contemplated by the Merger Agreement;
WHEREAS, in connection with the amendment and restatement of the Merger
Agreement, the parties hereto desire hereby to amend and restate the Old Voting
Agreement in its entirety;
WHEREAS, all of the shares of Class A Common Stock, $0.01 par value, of
the Company ("Capstar Class A Common Stock") and Class C Common Stock, $0.01
par value, of the Company ("Capstar Class C Common Stock") that are held of
record as of the date hereof by any of the Stockholders or over which any of
the Stockholders has the power to direct the vote, together with any shares of
capital stock of the Company acquired by such Stockholders after the date
hereof and during the term of this Agreement, including upon exercise of any
option or warrant, are 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);
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:
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1. Representations and Warranties of the Stockholders. Each of 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 or 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 have the sole right to vote the Subject Shares.
None of the Subject Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect to
the voting of the Subject Shares as required 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
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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 approval and adoption of 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) the Subject Shares in favor of such
proposals and any of the other transactions contemplated by
the Merger Agreement.
(b) At any meeting of the stockholders of the
Company or at any adjournment thereof or in any other
circumstances upon which the 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 the Company. 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
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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 they 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 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
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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 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, (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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9. Release of Certain Parties. Chancellor hereby generally releases and
forever discharges the parties (other than Chancellor) to those two certain
Instruments of Accession, dated as of September 23, 1998 and December 18, 1998,
respectively, and each such party's directors, officers, employees, agents,
trustees or other representatives from any and all restrictions, conditions,
obligations, claims or liabilities whatsoever arising out of the Old Voting
Agreement and the transactions contemplated thereby.
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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:
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Name:
Title:
(Signatures continued on following page)
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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:
--------------------------------
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)
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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)
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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.
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