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Exhibit 12
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of October 8, 1998, is
entered into by and among Clear Channel Communications, Inc., a Texas
corporation ("Parent"), and the other party listed on the signature page hereof
(the "Stockholder").
WHEREAS, Parent, CCU Merger Sub, Inc. ("Merger Sub") and Jacor
Communications, Inc. (the "Company"), have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), pursuant to which the
parties thereto have agreed, upon the terms and subject to the conditions set
forth therein, to merge Merger Sub with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder is the owner of the
number of shares (the "Shares") of common stock, par value $0.0l per share, of
the Company (the "Company Common Stock") set forth opposite such Stockholder's
name on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
is willing to agree, to the matters set forth herein. Except as specified
herein, terms defined in the Merger Agreement are used herein as defined
therein.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereto agree as follows:
1. Voting of Shares.
1.1. Voting Agreement. The Stockholder hereby agrees to vote (or
cause to be voted) all of the Shares (and any and all securities issued or
issuable in respect thereof) which such Stockholder is entitled to vote (or to
provide his written consent thereto), at any annual, special or other meeting of
the stockholders of the Company, and at any adjournment or adjournments thereof,
or pursuant to any consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the approval and adoption of the
terms contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(ii) against any action or agreement that is reasonably likely to
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation of the Company under this Agreement or the
Merger Agreement; and
(iii) except for all such actions which may be permitted to the
Company under Section 5.1 of the Merger Agreement, against (A) any extraordinary
corporate transaction, such as a merger, rights offering, reorganization,
recapitalization or liquidation involving the Company or any of its subsidiaries
other than the Merger, (B) a sale or transfer of a material amount
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Exhibit 12
of assets of the Company or any of its material subsidiaries or the issuance of
any securities of the Company or any subsidiary, (C) any change in the Board of
Directors of the Company other than in connection with an annual meeting of the
shareholders of the Company with respect to the slate of directors proposed by
the incumbent Board of Directors of the Company (in which case they agree to
vote for the slate proposed by the incumbent Board) or (D) any action that is
reasonably likely to materially impede, interfere with, delay, postpone or
adversely affect in any material respect the Merger and the transaction
contemplated by the Merger Agreement.
2. Representations and Warranties of Stockholder. The Stockholder
represents and warrants to Parent as follows in each case as of the date
hereof:
2.1. Binding Agreement. The Stockholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.2. No Conflict. Neither the execution and delivery of this
Agreement, nor the compliance with any of the provisions hereof in each case by
the Stockholder (a) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) with, or notification to,
any governmental entity, (b) result in a default (or an event which, with notice
or lapse of time or both, would become a default) or give rise to any right of
termination by any third party, cancellation, amendment or acceleration under
any material contract, agreement, instrument, commitment, arrangement or
understanding, or result in the creation of a security interest, lien, charge,
encumbrance, equity or claim with respect to any of the Shares, (c) require any
material consent, authorization or approval of any person other than a
governmental entity which has not been obtained, or (d) violate or conflict with
any order, writ, injunction, decree or law applicable to the Stockholder or the
Shares.
2.3. Ownership of Shares. Except as set forth in Schedule II and
except as may be provided in the organizational documents, if any, of the
Stockholder, the Stockholder is the record and beneficial owner of the Shares
free and clear of any security interests, liens, charges, encumbrances, options
or restriction on the right to vote the Shares. The Stockholder holds exclusive
power to vote the Shares, subject to the limitations set forth in Section 1 of
this Agreement. The Shares represent all of the shares of capital stock of the
Company beneficially owned by Stockholder.
3. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder as follows in each case as of the date hereof:
3.1. Binding Agreement. Parent is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Texas and
has full corporate
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power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the Merger Agreement by Parent and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors of Parent, and except for the approval of the issuance of
shares of Parent Common Stock in the Merger by holders of a majority of the
outstanding shares of Parent Common Stock actually present and voting at the
Parent Special Meeting, no other corporate proceedings on the part of Parent are
necessary to authorize the execution, delivery and performance of this Agreement
and the Merger Agreement by Parent and the consummation of the transactions
contemplated thereby. Parent has duly and validly executed this Agreement and
this Agreement constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
3.2. No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Parent of the transactions contemplated hereby,
nor the compliance by Parent with any of the provisions hereof will (a) conflict
with or result in a breach of any provision of its Articles of Incorporation or
By-laws, (b) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Exchange Act)
with, or notification to, any governmental entity, (c) result in a default (or
an event which, with notice or lapse of time or both, would become a default) or
give rise to any right of termination by any third party, cancellation,
amendment or acceleration under any contract, agreement, instrument, commitment,
arrangement or understanding, (d) require any material consent, authorization or
approval of any person other than a governmental entity, or (e) violate or
conflict with any order, writ, injunction, decree or law applicable to Parent.
4. Transfer and Other Restrictions. For so long as the Merger Agreement
is in effect:
4.1. Certain Prohibited Transfers. The Stockholder agrees not to:
(a) sell, transfer, assign (except as part of a bona fide pledge) or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment or other
disposition of, the Shares or any interest contained therein (except as part of
a bona fide pledge), during the period commencing 57 trading days prior to the
Estimated Closing Date(a) sell, transfer, assign (except as part of a bona fide
pledge) or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, assignment or
other disposition of, the Shares or any interest contained therein (except as
part of a bona fide pledge), during the period commencing 57 trading days prior
to the Estimated Closing Date and ending on the second trading day prior to the
Estimated Closing Date (the "Restriction Period"). For purpose of this
Agreement, the term "Estimated Closing Date" shall mean, a date specified in a
notice delivered by Parent to the Stockholder, which date is to be determined in
good faith by the General Counsel of the Parent following consultation with the
General Counsel of the Company to be the date on which the Merger will be
consummated, and which Estimated Closing Date shall be the later of (i) the sum
of 90 calendar days plus 57 trading days from the date hereof, and (ii) the sum
of 20 calendar days plus 57 trading days following the delivery of such notice.
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(b) except as contemplated by this Agreement, grant any proxies or power
of attorney or enter into a voting agreement or other arrangement with respect
to the Shares, other than this Agreement; (b) except as contemplated by this
Agreement, grant any proxies or power of attorney or enter into a voting
agreement or other arrangement with respect to the Shares, other than this
Agreement;
(c) deposit the Shares into a voting trust; nor
(d) during the Restriction Period, buy, sell or trade any equity
security of Parent including, without limitation, entering into any put, call,
option, swap, collar or any other derivative transaction which has a similar
economic effect.
Any date selected by the General Counsel of Parent pursuant to Section
4.1(a) as the Estimated Closing Date may be delayed to a later date by the
General Counsel in like manner by notice delivered by the Parent to the
Stockholder at least 20 days prior to the end of the Restriction Period, but any
trading restriction resulting from such extension shall be suspended for a
period of ten trading days before becoming effective.
4.2. Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting the Shares or (ii) the Stockholder
shall become the beneficial owner of any additional shares of Company Common
Stock or other securities entitling the holder thereof to vote or give consent
with respect to the matters set forth in Section 1 hereof, then the terms of
this Agreement shall apply to the shares of capital stock or other securities of
the Company held by the Stockholder immediately following the effectiveness of
the events described in clause (i) or the Stockholder becoming the beneficial
owner thereof, as described in clause (ii), as though they were Shares
hereunder. The Stockholder hereby agrees, while this Agreement is in effect, to
promptly notify Parent of the number of any new shares of Company Common Stock
acquired by the Stockholder, if any, after the date hereof.
5. Specific Enforcement. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with the terms hereof or were otherwise breached and
that each party shall be entitled to seek specific performance of the terms
hereof, in addition to any other remedy which may be available at law or in
equity.
6. Termination. Except for Sections 6 and 7 hereof, which shall survive
for the period specified therein, this Agreement shall terminate on the earlier
of (i) the termination of the Merger Agreement, (ii) the agreement of the
parties hereto to terminate this Agreement, (iii) consummation of the Merger and
(iv) the date the Stockholder ceases to own any Shares.6. Termination. Except
for Sections 6 and 7 hereof, which shall survive for the period specified
therein, this Agreement shall terminate on the earlier of (i) the termination of
the Merger Agreement, (ii) the agreement of the parties hereto to terminate this
Agreement, (iii) consummation of the Merger and (iv) the date the Stockholder
ceases to own any Shares.
7. Indemnification. Parent shall, to the fullest extent permitted under
applicable law, indemnify and hold harmless, the Stockholder against any costs
or expenses (including attorneys' fees as provided below), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation by the
Company or any stockholder of the Company asserting any breach by the
Stockholder of any
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fiduciary duty on his part to the Company or the other stockholders of the
Company by reason of the Stockholder entering into this Agreement, for a period
of six years after the date hereof. In the event the Stockholder seeks
indemnification from Parent for any such claim, action, suit, proceeding or
investigation (whether arising before or after the termination of this
Agreement), (a) Parent shall pay the fees and expenses of one counsel
selected by the Stockholder and reasonably acceptable to Parent to represent
Stockholder in connection therewith promptly after statements therefor are
received, and
(b) Parent and Merger Sub will cooperate in the defense of any such matter;
provided, however, that Parent shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably withheld);
provided, further, that in the event that any claim or claims for
indemnification are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims shall continue until the
disposition of any and all such claims.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Parent, to:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx, P.C.
Facsimile No.: (000) 000-0000
If to Stockholder, to the Stockholder at:
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
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Exhibit 12
with a copy to:
Xxxxxxxxx & Xxxxxxxxxxx
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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9. Certain Events. The Stockholder agrees not to sell or transfer more
than 2,600,000 Shares to any transferee that is not reasonably believed by the
Stockholder to be a financial investor engaged in the business of investing in
marketable securities, a bank, an insurance company, a pension fund or a person
described in Rule 13d-1(b)(ii) of the Exchange Act (collectively the
InstitutionalInvestors) (it being understood that a leveraged buyout fund with
significant investments in the broadcast industry shall not be deemed to be an
Instituional Investor) unless the Stockholder obtains the agreement of such
transferee to execute an agreement containing the operative provisions of this
Agreement, excluding Sections 2, 4.1(a), 4.1(d), 4.2 and 9.
10. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
11. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by Parent.
12. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
13. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto. This Agreement will be binding upon, inure to the benefit of
and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns; provided, that
this Agreement shall not be binding upon any transferee of the Shares,
including without limitation any Institutional Investors.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law).
16. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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17. Headings. 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.
18. Shareholder Capacity. No Stockholder or designee of any Stockholder
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in its capacity as such director or
officer. Each Stockholder signs solely in its capacity as the record holder and
beneficial owner of such Stockholder's Shares and nothing herein shall limit or
affect any actions taken by a Stockholder any designee of any Stockholder in his
or her capacity as an officer or director of the Company.
IN WITNESS WHEREOF, this Agreement haw been duly executed and delivered by
the Stockholder and a duly authorized officer of Parent on the day and year
first written above.
CLEAR CHANNEL COMMUNICATIONS, INC.
By:
---------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
[EACH OF XXXX/CHILMARK FUND, L.P., SAMSTOCK,
SZ2 (IGP) PARTNERSHIP
and XXXXXX XXXX]
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