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PARENT STOCKHOLDER VOTING AGREEMENT
PARENT STOCKHOLDER VOTING AGREEMENT, dated as of June 1, 1999 (this
"Agreement"), by and among METRO NETWORKS, INC., a Delaware corporation (the
"Company"), and INFINITY BROADCASTING CORPORATION, a Delaware corporation (the
"Stockholder").
WHEREAS, concurrently herewith, the Company, Copter Acquisition Corp.,
a Delaware corporation ("Merger Sub"), and Westwood One, Inc. a Delaware
corporation ("Parent"), are entering into an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used without definition herein having the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, among other things, the Merger Agreement provides for the
merger (the "Merger") of Merger Sub into the Company, and the Share Issuance
pursuant thereto;
WHEREAS, the Stockholder is the record and beneficial owner of the
number of shares ("Shares") of each class of capital stock of Parent entitled to
vote ("Voting Stock") set forth opposite its name in Schedule I hereto;
WHEREAS, approval of the Share Issuance by Parent's stockholders is
required in order to consummate the Merger;
WHEREAS, the Board of Directors of Parent has, prior to the execution
of this Agreement, duly and validly approved and adopted the Merger Agreement
and the Share Issuance, and has resolved and agreed to recommend to its
stockholders that they approve the Share Issuance, and such approval, adoption
and recommendation has not been withdrawn;
WHEREAS, the Stockholder is executing this Agreement (i) as an
inducement to the Company to enter into and execute the Merger Agreement and
(ii) in reliance upon the representations, warranties, agreements and covenants
of the Company set forth in the Merger Agreement; and
WHEREAS, certain holders of shares of the Company capital stock are
concurrently executing the Company Stockholder Voting Agreement agreeing to vote
for the Merger Agreement as an inducement to Parent to enter into and execute
the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. The Stockholder agrees that, during the
term of this Agreement, such Stockholder shall, from time to time, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of stockholders of Parent, however called, or in connection with any
written consent of the
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holders of any of the Voting Stock, in either case, prior to the earlier of the
Effective Time and the termination of this Agreement, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and such Stockholder shall vote or consent (or cause to
be voted or consented), in person or by proxy, all Shares, and any other voting
securities of Parent (whether acquired heretofore or hereafter), that are
beneficially owned by such Stockholder or its wholly-owned Affiliates or as to
which such Stockholder has, directly or indirectly, the right to vote or direct
the voting, in favor of the approval and adoption of the Share Issuance. The
Stockholder agrees, during the period commencing on the date hereof and ending
on the earlier of the Effective Time and the termination of this Agreement, not
to, and not to permit any of its wholly-owned Affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote of Parent, if such
consent or vote by the stockholders of Parent would be inconsistent with or
frustrate the purposes or terms of this Agreement or the Merger Agreement.
In furtherance and not in limitation of the foregoing, the Stockholder
hereby grants to, and appoints, the Company and each of Xxxxxxx X. Xxxxxxxx and
Xxxxx X. Xxxxxxx, in their respective capacities as officers of the Company, and
any individual who shall hereafter succeed to any such officer of the Company,
and any other designee of the Company, each of them individually, its
irrevocable proxy and attorney-in-fact (with full power of substitution) to vote
the Shares as indicated in this Section 1. The Stockholder intends this proxy to
be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy.
The Stockholder hereby revokes any and all previous proxies with
respect to its Shares or any other voting securities of Parent that may relate
to the voting of its Voting Stock in accordance with the provisions of this
Section 1.
Section 2. Exercise of Warrants. Not later than the second business day
immediately prior to the date established by the Parent Board as the record date
(the "Record Date") for the Parent Stockholders Meeting, the Stockholder shall
confer with the Company with respect to the anticipated voting of shares of
Parent Common Stock with respect to the Share Issuance. If the Company has not
received irrevocable written commitments from stockholders or other evidence
satisfactory to the Company that an adequate number of shares of Parent Common
Stock to approve the Share Issuance at the Parent Stockholders Meeting, the
Company shall so advise the Stockholders in writing not later than the first
business day prior to the Record Date and the Stockholder shall, not later than
the Record Date, exercise such number of warrants to acquire Parent Common Stock
equal to the lesser of (a) such number as shall be reasonably requested by the
Company, in its good faith judgment, in order to make it reasonably likely that
the Parent Requisite Vote will be obtained and (b) the excess of 3 million minus
the number of shares of Parent Common Stock acquired by the Stockholder or its
affiliates between the date hereof and the day immediately preceding the Record
Date. The provisions of this Section 2 shall automatically be of no further
force or effect if holders of shares of Parent Common Stock or Parent Class B
Stock enter into one or more voting agreements in favor of the Company
substantially to the effect of this Agreement (other than this
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Section 2) such that the aggregate number of votes represented by such
agreements and this Agreement is adequate to achieve the Parent Requisite Vote.
Section 3. Restriction on Transfer, Proxies and Non-Interference.
Except as contemplated by this Agreement, the Stockholder agrees not to,
directly or indirectly, (i) 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, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Shares or any interest therein; (ii) 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; or (iii) take any action that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect, or have the effect of preventing or disabling the Stockholder from
performing the Stockholder's obligations pursuant to this Agreement or the
Company's obligations under the Merger Agreement.
Section 4. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of its obligations under this Agreement.
Section 5. Representations and Warranties of the Company. The Company
represents and warrants to the Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of the
Company, representing all necessary corporate action on the part of the Company
for the execution and performance hereof and thereof by the Company (no action
by the stockholders of the Company being required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of the Company.
(c) This Agreement constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(d) The execution and delivery of this Agreement by the Company does
not violate or breach, and will not give rise to any violation or breach, of the
Company's charter or bylaws, or, except as will not materially impair its
ability to effectuate, carry out or comply with all of the terms of this
Agreement or the Merger Agreement, any Law, Governmental Entity approval or
contract by which the Company or its subsidiaries or their respective assets or
properties may be bound.
Section 6. Representations and Warranties of the Stockholders. The
Stockholder represents and warrants to the Company as follows:
(a) Schedule I sets forth, opposite the Stockholder's name, the number
and type of Shares of which such Stockholder is the record or beneficial owner
and the
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number of votes per share that the Stockholder is entitled to with respect to
the Merger Agreement. The Stockholder is the 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 the Stockholder nor any of its Affiliates owns or holds any rights to
acquire any additional shares of any class of Voting Stock or other securities
of Parent or any interest therein or any voting rights with respect to any
additional shares of Voting Stock or any other securities of Parent.
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of the Stockholder.
(c) This Agreement constitutes the valid and binding agreement of the
Stockholder, enforceable against such Stockholder in accordance with its terms.
(d) The execution and delivery of this Agreement by the Stockholder
does not violate or breach, and will not give rise to any violation or breach,
of such Stockholder's charter, by-laws, trust instrument or partnership
agreement, 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 Law, third party consent, approval, filing,
registration or similar requirement of any Governmental Entity or any agreement
or contract by which such Stockholder or its assets or properties may be bound.
Section 7. Effectiveness and Termination. In the event the Merger
Agreement is terminated in accordance with its terms or immediately upon the
Effective Time, this Agreement shall automatically terminate and be of no
further force or effect. Upon such termination, except for any rights any party
may have in respect of any breach by any other party of its obligations
hereunder, none of the parties hereto shall have any further obligation or
liability hereunder. This Agreement shall continue in full force and effect
despite any amendment or other modification of, or any consent or waiver under,
the Merger Agreement; provided, however, (A) that any amendment by the parties
to the Merger Agreement to (x) the Exchange Ratio or the Merger Consideration
(each as defined in Section 2.1(b) of the Merger Agreement), or (y) Article 7 of
the Merger Agreement entitled "Termination; Amendment; Waiver" or (B) the waiver
on or prior to the Closing Date by Parent of any material condition precedent
set forth in Article 6 of the Merger Agreement, shall require the written
consent of the Stockholder, failing which this Agreement may be terminated in
writing by the Stockholder. In any event, if the Effective Time shall not have
occurred on or before the Termination Date, this Agreement may be terminated in
writing by the Stockholder and it shall be of no further force or effect as to
such Stockholder.
Section 8. Voting Agreement. Stockholder agrees that it shall enter
into a voting agreement with Xxxxx Xxxxxxxxxx at the Effective Time pursuant to
which the Stockholder shall agree, subject to any applicable laws or regulations
of the exchange
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where the Company's securities are listed, to vote all shares of capital stock
of the Company entitled to vote at meetings of the stockholders of the Company
for the election of Xxxxx Xxxxxxxxxx'x designees to the Company's Board of
Directors, to the extent such designees have been nominated by the Board of
Directors or a committee thereof, for election at such meeting.
Section 9. Reasonable Best Efforts. To the extent consistent with
applicable law, Stockholder agrees to use its reasonable best efforts to
cooperate with Parent to cause the Share Issuance to be approved by the
stockholders of Parent.
Section 10. Miscellaneous.
(a) 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 given upon receipt) by delivery in person, by cable,
telegram, confirmed facsimile or telex, or by first class mail (postage prepaid,
return receipt requested), to the other party as follows:
if to the Company, to
Metro Networks, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
if to Stockholder, to
Infinity Broadcasting Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
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(b) Descriptive Headings. The descriptive headings 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.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
(d) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect 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.
(e) Waiver of Jury Trial. Each party hereto waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to contracts made,
executed, delivered and performed wholly within such state and, in any case,
without regard to the principles of conflicts of laws of such state.
(g) Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this Agreement shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party.
(h) Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto, in
whole or in part (whether by operation of law or otherwise), without the prior
written consent of the other parties hereto and the written undertaking of the
assignee to be bound by the terms of this Agreement, and any attempt to make any
such assignment without such consent shall be null and void. 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 permitted
assigns.
(i) Submission to Jurisdiction; Waivers. Each of the Company and the
Stockholder irrevocably agrees that any legal action or proceeding with respect
to this Agreement or for recognition and enforcement of any judgment in respect
hereof brought by the other party hereto or its successors or assigns may be
brought and determined in the Chancery or other Courts of the State of Delaware,
and each of the Company and the Stockholder hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of the Company and the Stockholder hereby
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irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to serve process
in accordance with this Section 10(i), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement may be enforced by a decree of specific performance
issued by a court of competent jurisdiction. Such remedy shall, however, not be
exclusive and, shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
(k) Expenses. Each of the Company and the Stockholder shall bear its
own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Action in Stockholder Capacity Only. The Stockholder makes no
agreement or understanding herein as a director or officer of Parent or in any
capacity other than as a stockholder of Parent. The Stockholder signs solely in
its capacity as a record holder and beneficial owner of Shares and nothing
herein shall limit or affect any actions taken by a representative of such
Stockholder in such representative's capacity as an officer or director of
Parent.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO PARENT STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Parent
Stockholder Voting Agreement as of the date first above written.
METRO NETWORKS, INC.
By: /s/ XXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
INFINITY BROADCASTING CORPORATION
By: /s/ XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
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Schedule I
Ownership of Voting Stock
Name and Address Class and Series Number of Shares Number of
of Stockholder of Voting Stock Owned Votes per Share
---------------- ---------------- ---------------- ---------------
Infinity Broadcasting common stock 8,000,0001 1
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------
(1) Includes 3,000,000 shares issuable upon the exercise of warrants to purchase
Voting Stock if required pursuant to Section 2 of this Agreement.
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Schedule II
Liens on Shares
None
