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EXHIBIT 10.9
STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Austin Ventures, L.P. (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
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written consent), to promptly vote all of his or its Equity Securities over
which he or it has voting control in favor of the transactions contemplated by
the Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated
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by the Investment Agreement (e.g. filing of documents necessary for regulatory
approval of the transactions contemplated by the Investment Agreement).
(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors'
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rights generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
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(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will have five days after receiving the Notice to notify the
Stockholder whether Brera will exercise its rights under this Section 3.3(b). If
Brera notifies the Stockholder that it will exercise its purchase rights within
such five (5) day period, the Stockholder will sell such shares to Brera
pursuant to the terms and conditions described in such bona fide offer and Brera
will be obligated to complete such purchase of the shares within the greater of
(i) 30 days after responding to the Notice or (ii) the period of time
contemplated by the bona fide offer for consummating the purchase of the shares.
Brera's failure to respond to the Notice within the five-day period will be
deemed to constitute a notification to the Stockholder of Brera's decision not
to exercise its right of first refusal to purchase the shares under this Section
3.3(b). If Brera notifies the Selling Holder within such five-day period of its
decision not to exercise its right of first refusal, then the relevant
provisions of that certain Amended and Restated Stockholder Agreement, dated as
of October 31, 1995, among the Company, the Stockholder and the other
stockholders described therein (the "1995 Stockholders Agreement") will apply to
such proposed transaction and such five-day period shall be deemed to run
concurrently with the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
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Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party
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hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other provision
hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent to the parties as closely as possible to the fullest
extent permitted by applicable law in a mutually acceptable manner in order that
the terms of this Agreement remain as originally contemplated to the fullest
extent possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
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and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
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Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN CONNECTION WITH
THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM
NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY SERVICE OF
PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE
RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY
FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS.
IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY AGREES
THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL CONSTITUTE
SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
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INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED
HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
AUSTIN VENTURES, L.P.
By: AV Partners, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
--------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
AUSTIN VENTURES, L.P.
By: AV Partners, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:
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-------------------------------
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Equity Securities beneficially owned:
323,832 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Austin Ventures III-A, L.P. (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY
SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO
THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY
AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER
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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
AUSTIN VENTURES III-A, L.P.
By: AV Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned.
Dated: May 24, 1999
AUSTIN VENTURES III-A, L.P.
By: AV Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Address:
------------------
--------------------------
--------------------------
Equity Securities beneficially owned:
223,422 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Austin Ventures III-B, L.P. (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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34
and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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35
CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY
SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO
THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY
AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER
A-11
36
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
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37
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
AUSTIN VENTURES III-B, L.P.
By: AV Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
A-13
38
EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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39
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
AUSTIN VENTURES III-B, L.P.
By: AV Partners III, L.P.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:
-----------------------------
-------------------------------------
-------------------------------------
Equity Securities beneficially owned:
188,733 shares of Company Common Stock
A-2
40
STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and J.
Xxxxxxx Xxxxxxx (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
A-3
41
or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
A-4
42
(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
A-5
43
Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will
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44
have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
A-7
45
Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or
A-8
46
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
A-9
47
and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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48
CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY
SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO
THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY
AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER
A-11
49
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
/s/ J. XXXXXXX XXXXXXX
------------------------------------------------
J. Xxxxxxx Xxxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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51
EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
/s/ J. XXXXXXX XXXXXXX
-----------------------------------
J. Xxxxxxx Xxxxxxx
Address:
---------------------------
-----------------------------------
-----------------------------------
Equity Securities beneficially owned:
244,862 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Xxxxxxx X. Seach (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY
SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO
THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY
AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER
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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
/s/ XXXXXXX X. SEACH
-------------------------------------------
Xxxxxxx X. Seach
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
/s/ XXXXXXX X. SEACH
----------------------------
Xxxxxxx X. Seach
Address:
--------------------
----------------------------
----------------------------
Equity Securities beneficially owned:
244,862 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and BT
Capital Partners (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of authorized
shares of voting Company Common Stock from 5,442,000 to 15,000,000. For purposes
of this Agreement, "Equity Securities" means any class of capital stock of the
Company and all securities convertible into or rights to purchase capital stock
of equity securities of the Company, including any warrants and options and any
and all other equity securities of the Company or securities convertible into or
exchangeable for such securities or issued as a distribution with respect to or
in exchange for such securities. The Stockholder acknowledges that it has
received and reviewed with counsel a copy of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A COPY OF ANY
SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED MAIL TO
THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE, EACH PARTY
AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL SHALL
CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER
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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
BT CAPITAL PARTNERS
By: /s/ XXXXXX XXXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
---------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the full extent
permitted by the General Corporation Law of the State of Delaware (the
"DGCL")), appoints Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned or owned of record by the undersigned, and
any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "Equity
Securities") in accordance with the terms of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned
with respect to any Equity Securities only with respect to the matters referred
to in the third paragraph of this proxy are hereby revoked and the undersigned
agrees not to grant any subsequent proxies only with respect to the matters
referred to in paragraph 3 of this proxy with respect to the Equity Securities
until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to promptly
vote (at every special or annual meeting of the stockholders, however called,
and each adjournment or postponement thereof, and by execution of a written
consent or in any other manner permitted by law and the certificate of
incorporation and/or bylaws of the Company) all of the undersigned
stockholder's Equity Securities in the Company over which the undersigned
stockholder has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of shares of
the voting common stock of the Company, par value $0.01 per share (the "Company
Common Stock"), from 5,442,000 to 15,000,000. The undersigned stockholder may
vote the Equity Securities on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
BT CAPITAL PARTNERS
By: /s/ XXXXXX XXXXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
---------------------------------
Address:
------------------------------
--------------------------------------
--------------------------------------
Equity Securities beneficially owned:
767,537 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Xxxxx X. Xxxxxxxx (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof
(as the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of
authorized shares of voting Company Common Stock from 5,442,000 to 15,000,000.
For purposes of this Agreement, "Equity Securities" means any class of capital
stock of the Company and all securities convertible into or rights to purchase
capital stock of equity securities of the Company, including any warrants and
options and any and all other equity securities of the Company or securities
convertible into or exchangeable for such securities or issued as a
distribution with respect to or in exchange for such securities. The
Stockholder acknowledges that it has received and reviewed with counsel a copy
of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy
in the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed
and intended to be irrevocable in accordance with the provisions of Section
212(e) of the Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary
duties, take such other reasonable actions, and to cause the Company to take
such other reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary
for regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any
other action, in each case, that would in anyway restrict, limit or interfere
with the performance of the Stockholder's obligations hereunder or the
transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder
that is not a natural person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Each such
Stockholder has all the requisite power and authority to execute, delivery and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate action on such Stockholder's part. Such Stockholder's board of
directors has approved the Stockholder's entry into this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by the Stockholder and, assuming the
due authorization, execution and delivery by Investor, constitutes a legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except that the enforcement hereof
may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each
other holder of Equity Securities (each a "Non-Selling Holder" and
collectively, the "Non-Selling Holders") in writing to such effect, enclosing a
copy of the bona fide offer (it being agreed that the Stockholder will cause
any such offer to be reduced to writing) and specifying the number of shares of
Equity Securities which the Stockholder desires to sell, the name of the person
or persons to whom the Stockholder desires to make the sale and the dollar
value of the consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are
proposed to be sold for cash at a purchase price equal to the dollar value of
such consideration (in the event such consideration includes non-cash
consideration, the dollar value of such non-cash consideration shall be its
Appraised Value (as defined in the Stockholders' Agreement, which is an exhibit
to the Investment Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms
and conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right
of first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is
accordingly agreed that Investor shall be entitled to an injunction or
injunctions to prevent breaches by the Stockholder of this Agreement and to
enforce specifically the terms and provisions of this Agreement, this being in
addition to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives and assigns. Neither this Agreement nor
any of the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Investor. If the Stockholder
acquires ownership of, or voting power with respect to, any additional Equity
Securities in any manner, whether by the exercise of any options or rights of
first offer or refusal or rights convertible into or exchangeable for Company
Common Stock, by operation of law or otherwise, such Equity Securities shall be
held subject to all of the terms of this Agreement. By taking and holding such
Equity Securities, the Stockholder shall be conclusively deemed to have agreed
to be bound by and to comply with all of the terms and provisions of this
Agreement. Without limiting the foregoing, the Stockholder specifically agrees
that its obligations hereunder shall not be terminated by operation of law,
whether by the death or incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any
other provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that any term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like changes of address) or sent by
electronic transmission (provided that a confirmation copy is sent by another
approved means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT
HEREBY CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A
COPY OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY
REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED
BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY
OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT
SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY
REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS,
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER
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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused
this Agreement to be duly executed on the date hereof.
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the full extent
permitted by the General Corporation Law of the State of Delaware (the
"DGCL")), appoints Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole
and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned or owned of record by the undersigned, and
any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "Equity
Securities") in accordance with the terms of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned
with respect to any Equity Securities only with respect to the matters referred
to in the third paragraph of this proxy are hereby revoked and the undersigned
agrees not to grant any subsequent proxies only with respect to the matters
referred to in paragraph 3 of this proxy with respect to the Equity Securities
until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to promptly
vote (at every special or annual meeting of the stockholders, however called,
and each adjournment or postponement thereof, and by execution of a written
consent or in any other manner permitted by law and the certificate of
incorporation and/or bylaws of the Company) all of the undersigned
stockholder's Equity Securities in the Company over which the undersigned
stockholder has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of shares of
the voting common stock of the Company, par value $0.01 per share (the "Company
Common Stock"), from 5,442,000 to 15,000,000. The undersigned stockholder may
vote the Equity Securities on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
/s/ XXXXX X. XXXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxxx
Address:
------------------------------
--------------------------------------
--------------------------------------
Equity Securities beneficially owned:
15,536 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and
Texas Growth Fund (the "Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof
(as the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
Section 1.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any action by
written consent), to promptly vote all of his or its Equity Securities over
which he
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or it has voting control in favor of the transactions contemplated by the
Investment Agreement and all actions reasonably necessary to consummate such
transactions, including, without limitation, increasing the number of
authorized shares of voting Company Common Stock from 5,442,000 to 15,000,000.
For purposes of this Agreement, "Equity Securities" means any class of capital
stock of the Company and all securities convertible into or rights to purchase
capital stock of equity securities of the Company, including any warrants and
options and any and all other equity securities of the Company or securities
convertible into or exchangeable for such securities or issued as a
distribution with respect to or in exchange for such securities. The
Stockholder acknowledges that it has received and reviewed with counsel a copy
of the Investment Agreement.
Section 1.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy
in the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS
IRREVOCABLE AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed
and intended to be irrevocable in accordance with the provisions of Section
212(e) of the Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers
of attorney with respect to the Equity Securities which the Stockholder may
have heretofore appointed or granted only with respect to the matters referred
to in Section 1.1 hereof, and no subsequent proxy or power of attorney shall be
given or written consent executed only with respect to the matters referred to
in Section 1.1 hereof (and if given or executed, such proxy or power of
attorney shall not be effective) by such Stockholder with respect thereto. All
authority conferred by this Section 1.2 or agreed to be conferred shall survive
the death or incapacity of the Stockholder and any obligation of the
Stockholder under this Agreement shall be binding upon the heirs, personal
representatives, assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary
duties, take such other reasonable actions, and to cause the Company to take
such other reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary
for regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 1.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any
other action, in each case, that would in anyway restrict, limit or interfere
with the performance of the Stockholder's obligations hereunder or the
transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 2.1 Authority Relative to This Agreement. Each Stockholder
that is not a natural person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Each such
Stockholder has all the requisite power and authority to execute, delivery and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement have been duly authorized by all necessary
corporate action on such Stockholder's part. Such Stockholder's board of
directors has approved the Stockholder's entry into this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by the Stockholder and, assuming the
due authorization, execution and delivery by Investor, constitutes a legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except that the enforcement hereof
may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
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Section 2.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 2.3 Title to the Shares. Except as provided in this Agreement,
the Stockholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to the Equity Securities.
ARTICLE III
RIGHT OF FIRST REFUSAL
Section 3.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each
other holder of Equity Securities (each a "Non-Selling Holder" and
collectively, the "Non-Selling Holders") in writing to such effect, enclosing a
copy of the bona fide offer (it being agreed that the Stockholder will cause
any such offer to be reduced to writing) and specifying the number of shares of
Equity Securities which the Stockholder desires to sell, the name of the person
or persons to whom the Stockholder desires to make the sale and the dollar
value of the consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are
proposed to be sold for cash at a purchase price equal to the dollar value of
such consideration (in the event such consideration includes non-cash
consideration, the dollar value of such non-cash consideration shall be its
Appraised Value (as defined in the Stockholders' Agreement, which is an exhibit
to the Investment Agreement). Brera will
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have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms
and conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right
of first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 4.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is
accordingly agreed that Investor shall be entitled to an injunction or
injunctions to prevent breaches by the Stockholder of this Agreement and to
enforce specifically the terms and provisions of this Agreement, this being in
addition to any other remedy to which Investor is entitled at law or in equity.
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Section 4.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their
respective heirs, legal representatives and assigns. Neither this Agreement nor
any of the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise, by the
Stockholder without the prior written consent of Investor. If the Stockholder
acquires ownership of, or voting power with respect to, any additional Equity
Securities in any manner, whether by the exercise of any options or rights of
first offer or refusal or rights convertible into or exchangeable for Company
Common Stock, by operation of law or otherwise, such Equity Securities shall be
held subject to all of the terms of this Agreement. By taking and holding such
Equity Securities, the Stockholder shall be conclusively deemed to have agreed
to be bound by and to comply with all of the terms and provisions of this
Agreement. Without limiting the foregoing, the Stockholder specifically agrees
that its obligations hereunder shall not be terminated by operation of law,
whether by the death or incapacity of the Stockholder or otherwise.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 4.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 4.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any
other provision hereunder.
Section 4.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination
that any term or
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other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent to the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
Section 4.8 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like changes of address) or sent by
electronic transmission (provided that a confirmation copy is sent by another
approved means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 4.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
Section 4.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 4.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT
HEREBY CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES ACCEPTS FOR THEMSELVES, RESPECTIVELY, AND IN
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CONNECTION WITH THEIR RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE
OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. A
COPY OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY
REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED
BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY
OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT
SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY
REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
Section 4.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS,
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER
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ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTION CONTEMPLATED HEREBY. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
BOARD OF TRUSTEES OF TEXAS
GROWTH FUND - 1991 TRUST, AS
TRUSTEE
By: TGF Management Corp.
Its: Executive Director
By: /s/ XXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxxxx
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
--------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 0000
XXXXX XX XXXXXXXX XX XXXXX
GROWTH FUND - 1991 TRUST, AS
TRUSTEE
By: TGF Management Corp.
Its: Executive Director
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Address:
---------------------
-----------------------------
-----------------------------
Equity Securities beneficially owned:
170,563 shares of Company Common Stock
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STOCKHOLDER VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 24, 1999 (this "Agreement"), between
Brera Classic, LLC, a Delaware limited liability company ("Investor"), and BA
SBIC Management, L.L.C., successor in interest to NationsBanc Capital Corp. (the
"Stockholder").
WHEREAS, Investor and Classic Communications, Inc., a Delaware
corporation (the "Company"), have, contemporaneously with the execution of this
Agreement, entered into an Investment Agreement, dated as of the date hereof (as
the same may be amended or supplemented, the "Investment Agreement"), which
provides, among other things, that the Investor desires to purchase common
stock, par value $0.01 per share of the Company (the "Company Common Stock"),
subject to the terms and conditions of the Investment Agreement (the
"Investment"); and
WHEREAS, as of the date hereof, the Stockholder is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
of Company Common Stock; and
WHEREAS, as a condition to the willingness of Investor to enter into
the Investment Agreement, Investor has required that the Stockholder agree, and
to induce Investor to enter into the Investment Agreement, the Stockholder has
agreed, to enter into this Agreement; and
WHEREAS, capitalized terms not defined herein have the meanings given
in the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE V
VOTING OF SHARES
Section 5.1 Voting Agreement. The Stockholder hereby agrees at any
meeting of the stockholders of the Company relating to the Investment Agreement
or the transactions contemplated thereby (or in connection with any
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action by written consent), to promptly vote all of his or its Equity Securities
over which he or it has voting control in favor of the transactions contemplated
by the Investment Agreement and all actions reasonably necessary to consummate
such transactions, including, without limitation, increasing the number of
authorized shares of voting Company Common Stock from 5,442,000 to 15,000,000.
For purposes of this Agreement, "Equity Securities" means any class of capital
stock of the Company and all securities convertible into or rights to purchase
capital stock of equity securities of the Company, including any warrants and
options and any and all other equity securities of the Company or securities
convertible into or exchangeable for such securities or issued as a distribution
with respect to or in exchange for such securities. The Stockholder acknowledges
that it has received and reviewed with counsel a copy of the Investment
Agreement.
Section 5.2 Irrevocable Proxy. (a) In furtherance of the transactions
contemplated by the Investment Agreement, concurrently with the execution of
this Agreement, the Stockholder shall execute and deliver to Investor a proxy in
the form attached hereto as Exhibit A (the "Proxy"). THE PROXY IS IRREVOCABLE
AND COUPLED WITH AN INTEREST. Such irrevocable Proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law (the "DGCL").
(b) The Stockholder hereby revokes all other proxies and powers of
attorney with respect to the Equity Securities which the Stockholder may have
heretofore appointed or granted only with respect to the matters referred to in
Section 1.1 hereof, and no subsequent proxy or power of attorney shall be given
or written consent executed only with respect to the matters referred to in
Section 1.1 hereof (and if given or executed, such proxy or power of attorney
shall not be effective) by such Stockholder with respect thereto. All authority
conferred by this Section 1.2 or agreed to be conferred shall survive the death
or incapacity of the Stockholder and any obligation of the Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
assigns and successors of the Stockholder.
(c) The Stockholder agrees to (i) enter into the Stockholders'
Agreement and Registration Rights Agreement at the Closing (as such terms are
defined in the Investment Agreement) and (ii) subject to their fiduciary duties,
take such other reasonable actions, and to cause the Company to take such other
reasonable actions, which are necessary to complete the transactions
contemplated by the Investment Agreement (e.g. filing of documents necessary for
regulatory approval of the transactions contemplated by the Investment
Agreement).
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(d) The Stockholder hereby agrees to take any and all actions
necessary to cause the Proxy to be voted at any meeting of the Company's
stockholders in favor of all the transactions contemplated by the Investment
Agreement.
Section 5.3 No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Investment Agreement, the Stockholder shall not (i) enter into any voting
agreement or arrangement with respect to the Equity Securities with respect to
the matters referred to in Section 1.1 hereof, (ii) grant a proxy or power of
attorney or other authorization with respect to the Equity Securities with
respect to the matters referred to in Section 1.1 hereof or (iii) take any other
action, in each case, that would in anyway restrict, limit or interfere with the
performance of the Stockholder's obligations hereunder or the transactions
contemplated hereby.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Investor as follows:
Section 6.1 Authority Relative to This Agreement. Each Stockholder that
is not a natural person is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each such Stockholder
has all the requisite power and authority to execute, delivery and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on
such Stockholder's part. Such Stockholder's board of directors has approved the
Stockholder's entry into this Agreement and the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by Investor, constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that the enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
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Section 6.2 No Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder shall not result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Equity Securities pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Equity Securities are bound or affected, except, in the case of each of the
foregoing, for any such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or delay the performance by the Stockholder
of its obligations under this Agreement.
Section 6.3 Title to the Shares. Except as provided in this
Agreement, the Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Equity Securities.
ARTICLE VII
RIGHT OF FIRST REFUSAL
Section 7.1 Right of First Refusal.
(a) The Stockholder agrees not to transfer its Equity Securities
unless it complies with the terms of this Section 3.3. Whenever and as often as
the Stockholder desires to sell any shares of his or its Equity Securities
pursuant to a bona fide offer for the purchase thereof in an independent
transaction, he or it will give notice (the "Notice") to Brera and to each other
holder of Equity Securities (each a "Non-Selling Holder" and collectively, the
"Non-Selling Holders") in writing to such effect, enclosing a copy of the bona
fide offer (it being agreed that the Stockholder will cause any such offer to be
reduced to writing) and specifying the number of shares of Equity Securities
which the Stockholder desires to sell, the name of the person or persons to whom
the Stockholder desires to make the sale and the dollar value of the
consideration which has been offered in connection therewith.
(b) Upon receipt of the Notice, Brera will have a right of first
refusal to purchase all of the shares described in the Notice which are proposed
to be sold for cash at a purchase price equal to the dollar value of such
consideration (in the event such consideration includes non-cash consideration,
the dollar value of such non-cash consideration shall be its Appraised Value (as
defined in the Stockholders' Agreement, which is an exhibit to the Investment
Agreement). Brera
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will have five days after receiving the Notice to notify the Stockholder whether
Brera will exercise its rights under this Section 3.3(b). If Brera notifies the
Stockholder that it will exercise its purchase rights within such five (5) day
period, the Stockholder will sell such shares to Brera pursuant to the terms and
conditions described in such bona fide offer and Brera will be obligated to
complete such purchase of the shares within the greater of (i) 30 days after
responding to the Notice or (ii) the period of time contemplated by the bona
fide offer for consummating the purchase of the shares. Brera's failure to
respond to the Notice within the five-day period will be deemed to constitute a
notification to the Stockholder of Brera's decision not to exercise its right of
first refusal to purchase the shares under this Section 3.3(b). If Brera
notifies the Selling Holder within such five-day period of its decision not to
exercise its right of first refusal, then the relevant provisions of that
certain Amended and Restated Stockholder Agreement, dated as of October 31,
1995, among the Company, the Stockholder and the other stockholders described
therein (the "1995 Stockholders Agreement") will apply to such proposed
transaction and such five-day period shall be deemed to run concurrently with
the notice provisions of the 1995 Stockholder Agreement.
(c) The Stockholder hereby agrees the provisions of this Section
3.3 supercede, and shall be deemed to amend the terms of the 1995 Stockholders
Agreement. If the terms of this Section 3.3 are deemed to conflict the terms of
the 1995 Stockholder Agreement, the terms of this Agreement shall be followed.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Termination. This Agreement shall terminate upon the
earliest to occur of (a) the termination of the Investment Agreement in
accordance with its terms pursuant to Article VIII of the Investment Agreement
and (b) the Closing (as defined in the Investment Agreement).
Section 8.2 Enforcement of Agreement. The Stockholder agrees that
irreparable damage would occur and that Investor would not have any adequate
remedy at law if any provision of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that Investor shall be entitled to an injunction or injunctions to
prevent breaches by the Stockholder of this Agreement and to enforce
specifically the terms
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and provisions of this Agreement, this being in addition to any other remedy to
which Investor is entitled at law or in equity.
Section 8.3 Successors and Affiliates. This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and assigns. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by the Stockholder without
the prior written consent of Investor. If the Stockholder acquires ownership of,
or voting power with respect to, any additional Equity Securities in any manner,
whether by the exercise of any options or rights of first offer or refusal or
rights convertible into or exchangeable for Company Common Stock, by operation
of law or otherwise, such Equity Securities shall be held subject to all of the
terms of this Agreement. By taking and holding such Equity Securities, the
Stockholder shall be conclusively deemed to have agreed to be bound by and to
comply with all of the terms and provisions of this Agreement. Without limiting
the foregoing, the Stockholder specifically agrees that its obligations
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
Section 8.4 Entire Agreement. This Agreement constitutes the entire
agreement between Investor and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between Investor and the Stockholder with respect to the
subject matter hereof.
Section 8.5 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 8.6 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 8.7 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or
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public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent to the parties as closely as possible to the fullest
extent permitted by applicable law in a mutually acceptable manner in order that
the terms of this Agreement remain as originally contemplated to the fullest
extent possible.
Section 8.8 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means):
(i) if to Investor,
Brera Classic, LLC
c/o Brera Capital Partners, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
and a copy to:
Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxx
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Fax: (000) 000-0000
and a copy to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and a copy to:
Xxxx Xxxxxxxx, Esq.
500 Capital of Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
(ii) if to Stockholder, to the address set forth in Exhibit A
hereto.
Section 8.9 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
Section 8.10 Governing Law. All questions concerning the validity,
meaning and effect of this Agreement shall be determined in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State, without regard to the principles of conflicts of laws except
to the extent necessary to permit this Agreement to be governed by New York law
as set forth above.
Section 8.11 Consent to Jurisdiction and Service of Process;
Appointment of Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY NEW YORK STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO
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THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES ACCEPTS
FOR THEMSELVES, RESPECTIVELY, AND IN CONNECTION WITH THEIR RESPECTIVE
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION AND VENUE
OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS, AND
IRREVOCABLY AGREE TO BE BOUND BY ANY NON-APPEALABLE JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT. A COPY OF ANY SERVICE OF PROCESS SERVED UPON THE
PARTIES SHALL BE MAILED BY REGISTERED MAIL TO THE RESPECTIVE PARTY EXCEPT THAT,
UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL
NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY
REFUSES TO ACCEPT SERVICE, EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE
PARTY BY REGISTERED MAIL SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW.
Section 8.12 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE
RELATIONSHIP THAT IS BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR
SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED
OF ANY OF THE OTHER PARTIES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO
RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS, LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
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FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
BA SBIC MANAGEMENT, L.L.C.,
By: BA Equity Mangement, L.P.,
Its Sole Member
By: BA Equity Management G.P.
Its General Partner
By: /s/ XXXXXX X. XXXXXXXX, III
-------------------------------
Name: Xxxxxx X. Xxxxxxxx, III
Member
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XXX-000-00-00
Xxxxxxxxx, XX 0000-0000
BRERA CLASSIC, LLC
By: /s/ XXXX X. XXXX
-------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
CLASSIC COMMUNICATIONS, INC.
COMMON STOCK
The undersigned stockholder of Classic Communications, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the full extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL")), appoints
Xxxx X. Xxxx and Xxxxx Xxxx, and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned or owned of record by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Equity Securities") in accordance with
the terms of this Proxy. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by the undersigned with respect to any Equity Securities
only with respect to the matters referred to in the third paragraph of this
proxy are hereby revoked and the undersigned agrees not to grant any subsequent
proxies only with respect to the matters referred to in paragraph 3 of this
proxy with respect to the Equity Securities until after the Expiration Date (as
defined below).
This Proxy is irrevocable (to the extent permitted by the DGCL), is
granted pursuant to that certain Voting Agreement, dated as of May 24, 1999,
between Investor and the undersigned stockholder of the Company (the "Voting
Agreement"), and is granted in consideration of Investor and the Company
entering into that certain Investment Agreement, dated as of May 24, 1999 (the
"Investment Agreement"). As used herein, the term "Expiration Date" shall mean
the earlier to occur of (i) the termination of the Voting Agreement in
accordance with its terms, and (ii) the consummation of the transactions
contemplated by the Investment Agreement in accordance with the terms and
provisions of the Investment Agreement.
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The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to promptly vote (at every
special or annual meeting of the stockholders, however called, and each
adjournment or postponement thereof, and by execution of a written consent or in
any other manner permitted by law and the certificate of incorporation and/or
bylaws of the Company) all of the undersigned stockholder's Equity Securities in
the Company over which the undersigned stockholder has voting control in favor
of the transactions contemplated by the Investment Agreement and all actions
reasonably necessary to consummate such transactions, including, without
limitation, increasing the number of shares of the voting common stock of the
Company, par value $0.01 per share (the "Company Common Stock"), from 5,442,000
to 15,000,000. The undersigned stockholder may vote the Equity Securities on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: May 24, 1999
BA SBIC MANAGEMENT, L.L.C.,
By: BA Equity Management, L.P.,
Its Sole Member
By: BA Equity Management G.P.
Its General Partner
By: /s/ XXXXXX X. XXXXXXXX, III
-------------------------------
Name: Xxxxxx X. Xxxxxxxx, III
Member
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XXX-000-00-00
Xxxxxxxxx, XX 0000-0000
Equity Securities beneficially owned:
702,044 shares of Company Common Stock
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