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MANAGEMENT TENDER AGREEMENT
MANAGEMENT TENDER AGREEMENT, dated as of July 14, 1997 (this
"Agreement"), by and among the persons designated as Management Stockholders on
the signature pages hereto (each a "Management Stockholder" and collectively,
the "Management Stockholders"), Evergreen Media Corporation, a Delaware
corporation ("Evergreen Media"), Chancellor Broadcasting Company, a Delaware
corporation ("Chancellor"), (Evergreen Media and Chancellor, each a "Parent"
and collectively, the "Parents"), and Xxxxxx Acquisition Corporation, a
Delaware corporation ("Merger Sub"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them in the
Merger Agreement referred to below.
WHEREAS, the Management Stockholders collectively own of
record and beneficially certain shares of common stock, par value $.01 per
share (the "Company Common Stock"), of Xxxx Media Group, Inc., a Delaware
corporation (the "Company"), each Management Stockholder, respectively, owning
of record and/or beneficially the number of shares of Company Common Stock set
forth next to his name on Annex A attached hereto and incorporated by reference
herein (such Management Stockholder's shares, together with any other voting or
equity securities of the Company hereafter acquired by such Management
Stockholder prior to the termination of this Agreement, being referred to
collectively as the "Shares"); and
WHEREAS, concurrently with the execution of this Agreement,
each Parent, Merger Sub and the Company, are entering into a Merger Agreement,
dated as of the date hereof (as amended from time to time, the "Merger
Agreement"), which provides, among other things, that, upon the terms and
subject to the conditions therein, Merger Sub will make a cash tender offer
(the "Offer") for all outstanding shares of Company Common Stock and will merge
with and into the Company (the "Merger"); and
WHEREAS, as a condition to the willingness of the Parents and
Merger Sub to enter into the Merger Agreement, the Parents and Merger Sub have
requested that the Management Stockholders agree, and in order to induce the
Parents and Merger Sub to enter into the Merger Agreement, the Management
Stockholders have agreed, to enter into this Agreement; and
WHEREAS, prior to the execution and delivery of this Agreement
by the parties hereto, the disinterested directors of and the entire Board of
Directors of the Company have approved the execution and delivery of this
Agreement and the terms hereof pursuant to Section 203 of the DGCL.
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NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
Section 1. Representations and Warranties of the
Management Stockholders. Each Management Stockholder represents and warrants
to the Parents and Merger Sub, severally as to himself and with respect to his
Shares, as follows:
(a) Such Management Stockholder is the sole
record and beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which definition will
apply for all purposes of this Agreement) of, and has good title to, all of his
Shares, and there exist no liens, claims, security interests, options, proxies,
voting agreements, charges or encumbrances of whatever nature ("Liens")
affecting his Shares, except for Liens created pursuant to the Shareholders
Agreement, dated as of August 1, 1994, among the Management Stockholders and
certain other parties thereto (as amended, the "Management Stockholders
Agreement").
(b) Assuming that Merger Sub acquired its
interest in the Shares in good faith and without notice of any adverse claim
(within the meaning of Section 8-302 of the Uniform Commercial Code as in
effect in the State of New York), upon the transfer to Merger Sub by such
Management Stockholder of his Shares upon consummation of the Offer or the
Merger (whichever is earlier), Merger Sub will acquire all of such Management
Stockholder's rights in such Management Stockholder's Shares, free of any
adverse claim.
(c) The execution and delivery of this Agreement
by such Management Stockholder does not, and the performance by such Management
Stockholder of its obligations hereunder will not, constitute a violation of,
conflict with, result in a default (or an event which, with notice or lapse of
time or both, would result in a default) under, or result in the creation of
any Lien on any of such Management Stockholder's Shares under (i) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which such Management Stockholder is a party or by which such Management
Stockholder is bound, (ii) any judgment, writ, decree, order or ruling
applicable to such Management Stockholder, or (iii) the organizational
documents of such Management Stockholder.
(d) Such Management Stockholder has the requisite
capacity to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Management Stockholder and, assuming due
authorization, execution and delivery by the Parents and Merger Sub,
constitutes a valid and binding agreement of such Management Stockholder,
enforceable against such Management Stockholder in accordance with its terms,
except to the extent that enforceability may be limited by applicable law.
(e) Neither the execution and delivery of this
Agreement nor the performance by such Management Stockholder of its obligations
hereunder will (i) violate any
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order, writ, injunction or judgment applicable to such Management Stockholder,
or (ii) violate any law, decree, statute, rule or regulation applicable to such
Management Stockholder or require any consent, authorization or approval of,
filing with or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act")
or the federal securities laws.
Section 2. Representations and Warranties of the Parents.
Parents severally represent and warrant to the Management Stockholders as
follows:
(a) Each Parent is (i) duly organized and validly
existing and in good standing under the laws of the State of Delaware, (ii) has
the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and (iii) has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by each Parent and constitutes the legal, valid and
binding obligation of each Parent, enforceable against each Parent in
accordance with its terms, except to the extent that enforceability may be
limited by applicable law.
(b) The execution and delivery of this Agreement
by each Parent does not, and the performance by each Parent of its obligations
hereunder will not, constitute a violation of, conflict with, or result in a
default (or an event which, with notice or lapse of time or both, would result
in a default) under, its certificate of incorporation or bylaws or any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which each Parent is a party or by which each Parent is bound or
any judgment, writ, decree, order or ruling applicable to each Parent.
(c) Neither the execution and delivery of this
Agreement nor the performance by each Parent of its obligations hereunder will
violate any order, writ, injunction, judgment, law, decree, statute, rule or
regulation applicable to each Parent or require any consent, authorization or
approval of, filing with, or notice to, any court, administrative agency or
other governmental body or authority, other than any required notices or
filings pursuant to the HSR Act or the federal securities laws.
Section 3. Representations and Warranties of Merger Sub.
Merger Sub represents and warrants to the Management Stockholders as follows:
(a) Merger Sub is (i) duly organized and validly
existing and in good standing under the laws of the State of Delaware, (ii) has
the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and (iii) has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by Merger Sub and constitutes the legal, valid and
binding obligation of Merger Sub, enforceable against Merger Sub in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, organization, insolvency, moratorium or other
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laws affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(b) The execution and delivery of this Agreement
by Merger Sub does not, and the performance by Merger Sub of its obligations
hereunder will not, constitute a violation of, conflict with, or result in a
default (or an event which, with notice or lapse of time or both, would result
in a default) under, its certificate of incorporation or bylaws or any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which Merger Sub is a party or by which Merger Sub is bound or any
judgment, writ, decree, order or ruling applicable to Merger Sub.
(c) Neither the execution and delivery of this
Agreement nor the performance by Merger Sub of its obligations hereunder will
violate any order, writ, injunction, judgment, law, decree, statute, rule or
regulation applicable to Merger Sub or require any consent, authorization or
approval of, filing with, or notice to, any court, administrative agency or
other governmental body or authority, other than any required notices or
filings pursuant to the HSR Act or the federal securities laws.
Section 4. Tender of Shares.
(a) During the term of this Agreement, each
Management Stockholder hereby agrees to tender and sell (and not withdraw)
pursuant to and in accordance with the terms of the Offer all of such
Management Stockholder's Shares. Upon the purchase of all Shares owned by a
Management Stockholder pursuant to the Offer in accordance with this Section
4(a), this Agreement shall terminate solely with respect to such Management
Stockholder. Notwithstanding the provisions of this Section 4(a), in the event
any Management Stockholder withdraws such Management Stockholder's Shares from
the Offer for any reason or any such Shares are not purchased pursuant to the
Offer, such Shares shall remain subject to the terms of this Agreement. Each
Management Stockholder acknowledges that Merger Sub's obligation to accept for
payment and pay for the Shares in the Offer is subject to all the terms and
conditions of the Offer.
(b) Each Management Stockholder hereby agrees to
permit the Parents and Merger Sub to publish and disclose in the Offer
Documents and, if approval of the stockholders of the Company is required under
applicable law, in the Proxy Statement, including all documents and schedules
filed with the SEC, its identity and ownership of Company Common Stock and the
nature of its commitments, arrangements and understandings under this
Agreement.
Section 5. Transfer of the Shares. During the term of
this Agreement, except as otherwise provided herein, no Management Stockholder
shall (a) offer to sell, sell, pledge or otherwise dispose of or transfer any
interest in or encumber with any Lien any of such Management Stockholder's
Shares, except for transfer or sale to any affiliate of such Management
Stockholder who agrees to be bound by this Agreement, (b) deposit such
Management Stockholder's Shares into a voting trust, enter into a voting
agreement or arrangement with respect to such Shares or grant any proxy or
power of attorney with respect to
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such Shares, or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment or other disposition of or transfer of any interest in or the voting
of any shares of Company Common Stock or any other securities of the Company.
Section 6. No Solicitation. During the term of this
Agreement, each Management Stockholder agrees, in his capacity as such, not to
directly or indirectly, initiate, solicit (including by way of furnishing
information), encourage or respond to or take any other action knowingly to
facilitate, any inquiries or the making of any proposal by any person or entity
(other than either Parent or any affiliate of either Parent) with respect to
the Company that reasonably may be expected to lead to a Takeover Proposal, or
enter into or maintain or continue discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain any Takeover Proposal, or
agree to or endorse any Takeover Proposal, or authorize or permit any person or
entity acting on behalf of such Management Stockholder to do any of the
foregoing. If any Management Stockholder receives any Takeover Proposal, such
Management Stockholder agrees to promptly notify the Parents of that inquiry or
proposal and the details thereof.
Section 7. Waiver of Appraisal Rights. Each Management
Stockholder hereby irrevocably waives any rights of appraisal or rights to
dissent from the Merger that such Management Stockholder may have.
Section 8. Voting of Shares. During the term of this
Agreement, each Management Stockholder in his capacity as such hereby agrees to
vote each of his Shares at any annual, special or adjourned meeting of the
stockholders of the Company (a) in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval and adoption
of the terms thereof and hereof; and (b) against any action or agreement that
would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Merger Agreement; and (c)
against the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the company or its Subsidiaries; (ii) a sale, lease or transfer of a
material amount of assets of the Company or one of its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (iii) (A) any change in a majority of the persons who
constitute the board of directors of the Company as of the date hereof; (B) any
change in the present capitalization of the Company or any amendment of the
Company's certificate of incorporation or bylaws, as amended to date; (C) any
other material change in the Company's corporate structure or business; or (D),
is intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or adversely affect the Merger and the other transactions
contemplated by this Agreement and the Merger Agreement.
Section 9. Enforcement of the Agreement. Each Management
Stockholder acknowledges 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
Merger Sub will be entitled (i) to an injunction or injunctions to prevent
breaches of this Agreement, and (ii) to specifically enforce the terms and
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provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which it is
entitled at law or in equity.
Section 10. Adjustments. The number and type of
securities subject to this Agreement will be appropriately adjusted in the
event of any stock dividends, stock splits, recapitalizations, combinations,
exchanges of shares or the like or any other action that would have the effect
of changing any Management Stockholder's ownership of the Company's capital
stock or other securities.
Section 11. Termination. This Agreement will terminate on
the earlier of (a) the purchase of all the Shares pursuant to the Offer in
accordance with Section 4, and (b) the date on which the Merger Agreement is
terminated in accordance with its terms.
Section 12. Expenses. All fees and expenses incurred by
any of the parties hereto shall be borne by the party incurring such fees and
expenses.
Section 13. Brokerage. Except as disclosed in the Merger
Agreement (including the Schedules thereto), each party represents and warrants
to the others that there are no claims for finder's fees or brokerage
commissions or other like payments in connection with this Agreement or the
transactions contemplated hereby, and each party agrees to indemnify and hold
harmless the other parties from and against any and all claims or liabilities
for finder's fees or brokerage commissions or other like payments incurred in
connection with the transactions contemplated hereby.
Section 14. Miscellaneous.
(a) All representations and warranties contained
herein shall survive for one (1) year after the termination hereof.
(b) Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits thereof. No such
waiver, amendment or supplement shall be effective unless in writing signed by
the party or parties sought to be bound thereby. Any waiver by any party of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision or of any breach of any
other provision of this Agreement. The failure of a party to insist upon
strict adherence to any term of this Agreement or one or more sections hereof
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
(c) This Agreement contains the entire agreement
among the Parents, Merger Sub and the Management Stockholders with respect to
the subject matter hereof, and supersedes all prior agreements among the
Parents, Merger Sub and the Management Stockholders with respect to such
matters. This Agreement may not be amended, changed, supplemented, waived or
otherwise modified, except upon the delivery of a written agreement executed by
the parties hereto.
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(d) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and performed in that state.
(e) Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of any federal or state court located within the
State of Delaware over any dispute arising out of or relating to this Agreement
and waives any objections which it may now or hereafter have to the laying of
the venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any state or federal court of competent jurisdiction in
the State of Delaware, and hereby further irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
any inconvenient forum. No suit, action or proceeding against a party hereto
with respect to this Agreement may be brought in any court, domestic or
foreign, or before any similar domestic or foreign authority other than in a
court of competent jurisdiction in the State of Delaware, and each party hereto
hereby irrevocably waives any right which it may otherwise have had to bring
such an action in any other court, domestic or foreign, or before any similar
domestic or foreign authority. Each of the parties hereto consents to process
being served by any party to this Agreement in any suit, action or proceeding
by the mailing of a copy thereof in accordance with the provisions of Section
14(g) hereof.
(f) The descriptive headings contained herein are
for convenience and reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) All notices and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by telecopy, or by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to a Management Stockholder to such Management Stockholder
at the address listed below such Management Stockholder's name on Annex A
hereto.
If to the Parents or Merger Sub, to:
Evergreen Media Corporation
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
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and to
Chancellor Broadcasting Company
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as any party may have furnished to the other parties
in writing in accordance herewith.
(h) Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement.
(i) Agreement is binding upon and is solely for
the benefit of the parties hereto and their respective successors, legal
representatives and assigns. Except as provided herein, neither this Agreement
nor any of the rights, interests or obligations under this Agreement may be
assigned by any of the parties hereto without the prior written consent of the
other parties, except that Merger Sub shall have the right to assign to the
Parents [or any other direct or indirect wholly owned Subsidiary of either
Parent] any and all rights and obligations of Merger Sub under this Agreement,
including the right to purchase Shares tendered by any Management Stockholder
pursuant to the terms hereof and the Offer, provided that any such assignment
shall not relieve Merger Sub from any of its obligations hereunder.
(j) 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 either party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
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IN WITNESS WHEREOF, each of the parties hereto as caused this
Agreement to be duly executed as of the date first written above.
STOCKHOLDERS:
By:/s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
By:/s/ XXXXX X. XXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
By:/s/ XXXXXX X. XXXX
---------------------------------
Name: Xxxxxx X. Xxxx
PARENTS: CHANCELLOR BROADCASTING COMPANY
By:/s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
EVERGREEN MEDIA CORPORATION
By:/s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
MERGER SUB: XXXXXX ACQUISITION CORPORATION
By:/s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
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ANNEX A
Management Stockholder Number of Shares
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Xxxxxx X. Xxxxx 140,569
Xxxx Media Group., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxxxxxxx 124,334
Xxxx Media Group., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx X. Xxxx 123,834
Xxxx Media Group., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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