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EXHIBIT 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of June l, 1999,
among XXXXX ADVERTISING COMPANY, a Delaware corporation (the "Company"),
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware corporation
("Chancellor"), and XXXXXX FAMILY LIMITED PARTNERSHIP, a Louisiana limited
partnership (the "Stockholder").
WHEREAS, the Company and Chancellor are entering into (i) that certain
Stock Purchase Agreement of even date herewith (the "Purchase Agreement") and
(ii) that certain Subscription Agreement of even date herewith (the
"Subscription Agreement");
WHEREAS, each of the Purchase Agreement and the Subscription Agreement
contemplate the issuance and sale of shares (collectively, the "Company Shares")
of Class A Common Stock, par value $0.001 per share, of the Company ("Class A
Common Stock"), to Chancellor upon the terms and subject to the conditions set
forth in each of the Purchase Agreement and the Subscription Agreement;
WHEREAS, all of the shares of Class A Common Stock and Class B Common
Stock, $0.001 par value per share, of the Company ("Class B Common Stock"), that
are held of record as of the date hereof by the Stockholder or over which the
Stockholder has the power to direct the vote, together with any shares of
capital stock of the Company acquired by the Stockholder after the date hereof
and during the term of this Agreement, including upon exercise of any option or
warrant, are collectively referred to herein as the "Subject Shares;" and
WHEREAS, as a condition to its willingness to enter into each of the
Purchase Agreement and the Subscription Agreement, Chancellor has requested that
the Stockholder enter into this Agreement in order to ensure that the Company
obtain the approval by the stockholders of the Company of the issuance of the
Company Shares;
NOW, THEREFORE, to induce Chancellor to enter into, and in consideration
of its entering into, each of the Purchase Agreement and the Subscription
Agreement, and in consideration of the premises and the representations,
warranties and agreements contained herein, the parties agree as follows:
1. Representations and Warranties of the Stockholders. The Stockholder
hereby represents and warrants to Chancellor as of the date hereof as follows:
(a) Authority; Noncontravention. The Stockholder has
all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Stockholder,
and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary partnership action
on the part of the Stockholder. This Agreement has been duly
authorized, executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the
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Stockholder enforceable in accordance with its terms. The
execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and
compliance with the terms hereof (including Section 3 of this
Agreement) will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time or
both) under any provision of, the certificate of limited
partnership, the partnership agreement or any other
partnership organizational documents of the Stockholder, or
any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or to the Stockholder's property
or assets.
(b) The Subject Shares. The Stockholder is the record
or beneficial owner of, and has good and marketable title to,
the Subject Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The
Stockholder has the sole right to vote the Subject Shares.
None of the Subject Shares is subject to any voting trust or
other agreement (other than the Stockholders Agreement, among
the parties hereto, of even date herewith (the "Stockholders
Agreement")), arrangement or restriction with respect to the
voting of the Subject Shares as required by this Agreement.
2. Representations and Warranties of Chancellor. Chancellor hereby
represents and warrants to the Stockholder as of the date hereof that Chancellor
has all requisite corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Chancellor, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Chancellor. This Agreement has been duly executed and delivered
by Chancellor and constitutes a valid and binding obligation of Chancellor
enforceable in accordance with its terms. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both) under
any provision of, the certificate of incorporation or bylaws of Chancellor, any
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Chancellor or to Chancellor's property or assets.
3. Covenants of the Stockholder. Until the termination of this Agreement
in accordance with Section 6, the Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company
called to vote upon the approval and authorization of the
issuance of the Company Shares, as contemplated by each of the
Purchase Agreement and the Subscription Agreement, or at any
adjournment thereof or in any other
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circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the approval
and authorization of the issuance of the Company Shares, is
sought, the Stockholder shall vote (or cause to be voted) the
Subject Shares in favor of such proposals and any of the other
transactions contemplated by each of the Purchase Agreement
and the Subscription Agreement. The Stockholder further agrees
(i) not to convert any Subject Shares that are shares of Class
B Common Stock into shares of Class A Common Stock and (ii)
not to waive or otherwise forfeit its right to have each
Subject Share that is a share of Class B Common Stock be
entitled to ten (10) votes per share.
(b) Except as provided in the immediately following
sentence of this Section 3(b), the Stockholder agrees not to
(i) sell, transfer, pledge, assign or otherwise dispose of
(including by gift) (collectively, the "Transfer"), or enter
into any contract, option or other arrangement (including any
profit sharing agreement) with respect to the Transfer of the
Subject Shares to any person, or (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise
(other than the Stockholders Agreement), with respect to any
capital stock of the Company, and agrees not to commit or
agree to take any of the foregoing actions. Notwithstanding
the foregoing, the Stockholder shall have the right, for tax
or estate planning purposes, to Transfer the Subject Shares to
a transferee provided that, as a condition to any such
Transfer, each such transferee shall execute and deliver to
Chancellor a counterpart of this Agreement and expressly agree
to be bound hereby.
(c) Until after the earlier of (i) the consummation
of the transactions contemplated by each of the Purchase
Agreement and the Subscription Agreement and (ii) the
termination of each of the Purchase Agreement and the
Subscription Agreement, the Stockholder shall use all
reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, and to assist and cooperate
with Chancellor in doing, all things necessary, proper or
advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated
by each of the Purchase Agreement and Subscription Agreement.
(d) Immediately prior to the closing of the
transactions contemplated by the Purchase Agreement (the
"Purchase Closing"), the Stockholder shall execute and deliver
to each of the Company and Chancellor, that certain
Stockholders Agreement, dated as of the date of the Purchase
Closing, by and among the Company and the Securityholders of
the Company listed on the signature pages thereof, the form of
which is attached to the Purchase Agreement as Annex E, as
required by Section 7.3(e) of the Purchase Agreement.
4. Further Assurances. The Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents,
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documents and other instruments as Chancellor may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
5. Assignment. Neither party hereto shall assign this Agreement or any
part hereof without the prior written consent of the other party. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
6. Termination. This Agreement shall terminate upon the earlier of (a)
the termination of each of the Purchase Agreement and Subscription Agreement in
accordance with the terms thereof, or (b) the closing of the transactions
contemplated thereby.
7. General Provisions.
(a) Amendments. This Agreement may not be amended
except by an instrument in writing signed by each of the
parties hereto.
(b) Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing
proof of delivery) to the Company or Chancellor in accordance
with Section 11.2 of the Purchase Agreement and to the
Stockholder at its address set forth on the signature pages
hereto (or at such other address for a party as shall be
specified by like written notice).
(c) Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to
this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation
of this Agreement. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation."
(d) Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or
more of the counterparts have been signed by each of the
parties and delivered to the other party, it being understood
that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents and instruments
referred to herein) (i) constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon
any person other than the parties hereto any rights or
remedies hereunder.
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(f) Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware regardless of the laws that might otherwise govern
under applicable principles of conflicts of law thereof.
8. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any competent court of the United
States located in the State of Delaware or in a Delaware state court, this being
in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court in the event any dispute arises out
of this Agreement or any of the transactions contemplated hereby, (ii) agrees
that such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that such
party will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the state
of Delaware or a Delaware state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each of the Company and Chancellor has caused this
Agreement to be signed by one of its officers thereunto duly authorized and the
Stockholder has duly signed this Agreement, all as of the date first written
above.
XXXXX ADVERTISING COMPANY
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Chief Financial Officer
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
XXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXXXX X. XXXXXX, XX.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: General Partner
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