Exhibit 2
COMPANY STOCKHOLDER VOTING AGREEMENT
COMPANY STOCKHOLDER VOTING AGREEMENT, dated as of June 1, 1999 (this
"Agreement"), by and among WESTWOOD ONE, INC., a Delaware corporation
("Parent"), and each of the other signatories hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS, concurrently herewith, Parent, Copter Acquisition Corp., a
Delaware corporation ("Merger Sub"), and Metro Networks, Inc. a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
(the "Merger Agreement"; capitalized terms used without definition herein having
the meanings ascribed thereto in the Merger Agreement);
WHEREAS, among other things, the Merger Agreement provides for the
merger (the "Merger") of Merger Sub into the Company and the Share Issuance
pursuant thereto;
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares ("Shares") of each class of capital stock of the Company
entitled to vote ("Voting Stock") set forth opposite such Stockholder's name in
Schedule I hereto;
WHEREAS, approval and adoption of the Merger Agreement by the Company's
stockholders is required in order to consummate the Merger;
WHEREAS, the Board of Directors of the Company has, prior to the
execution of this Agreement, duly and validly approved and adopted the Merger
Agreement and has resolved and agreed to recommend to its stockholders that they
approve and adopt the Merger Agreement, and such approval, adoption, resolution
and agreement has not been withdrawn;
WHEREAS, the Stockholders are executing this Agreement (i) as an
inducement to Parent to enter into and execute the Merger Agreement and (ii) in
reliance upon the representations, warranties, agreements and covenants of
Parent set forth in the Merger Agreement; and
WHEREAS, a certain holder of shares of Parent capital stock is
concurrently executing the Parent Stockholder Voting Agreement pursuant to which
such holder is agreeing to vote for the Share Issuance as an inducement to the
Company to enter into and execute the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote.
Each Stockholder hereby agrees (for itself and not as to any
other Stockholder) that, during the term of this Agreement, such Stockholder
shall, from time to time, at any meeting (whether annual or special and whether
NY2:\522952\07\B7$G07!.DOC\80764.0005
or not an adjourned or postponed meeting) of stockholders of the Company,
however called, or in connection with any written consent of the holders of
Voting Stock, in either case, prior to the earlier of the Effective Time and the
termination of this Agreement, appear at such meeting or otherwise cause the
Shares to be counted as present thereat for purposes of establishing a quorum,
and such Stockholder shall vote or consent (or cause to be voted or consented),
in person or by proxy, all Shares, and any other voting securities of the
Company (whether acquired heretofore or hereafter) that are beneficially owned
by such Stockholder or its wholly-owned Affiliates or as to which such
Stockholder has, directly or indirectly, the right to vote or direct the voting,
in favor of the approval and adoption of the Merger Agreement. Each Stockholder
agrees, during the period commencing on the date hereof and ending on the
earlier of the Effective Time and the termination of this Agreement, not to, and
not to permit any of its wholly-owned Affiliates to, vote or execute any written
consent in lieu of a stockholders meeting or vote of the Company, if such
consent or vote by the stockholders of the Company would be inconsistent with or
frustrate the purposes or terms this Agreement or the Merger Agreement.
In furtherance and not in limitation of the foregoing, each
Stockholder hereby grants to, and appoints, Parent and each of Xxxxx Xxxxxxx and
Xxxx Xxxxxxxxx in their respective capacities as officers of Parent, and any
individual who shall hereafter succeed to any such officer of Parent, and any
other designee of Parent, each of them individually, its irrevocable proxy and
attorney-in-fact (with full power of substitution) to vote the Shares as
indicated in this Section 1. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest and will take such further action and
execute such other instruments as may be necessary to effectuate the intent of
this proxy.
Each Stockholder hereby revokes any and all previous proxies
with respect to its Shares or any other voting securities of the Company that
may relate to the approval of the Merger Agreement.
Section 2. Capture. In order to induce Parent and Merger Sub to enter into the
Merger Agreement, each of the Stockholders hereby agrees to the matters set
forth in this Section 2 with respect to the number of shares of Voting Stock set
forth opposite such Stockholder's name on Schedule I hereto, and all other
shares of Voting Stock acquired by such Stockholder after the date of this
Agreement (collectively, the "Subject Shares"):
(a) In the event that the Merger Agreement shall have been
terminated under circumstances where Parent is entitled to receive a Termination
Fee, each Stockholder shall pay to Parent on demand, an amount in cash or Voting
Stock (or securities into which such Voting Stock becomes convertible pursuant
to the consummation of a Company Acquisition Proposal), at such Stockholder's
election, equal to all Profit (as defined below) of such Stockholder from the
consummation of any Company Acquisition Proposal that is consummated within
twelve months or, if entered into within twelve months, consummated within
eighteen months of such termination. The "Profit" of any Stockholder from any
Company Acquisition Proposal shall equal 60% of the sum of (i) the aggregate
consideration received by such Stockholder pursuant to such Company Acquisition
Proposal, valuing any non-cash consideration (including any residual interest in
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the Company) at its fair market value on the date of such consummation plus (ii)
the fair market value, on the date of disposition, of all Subject Shares of such
Stockholder disposed of after the termination of the Merger Agreement and prior
to the date of such consummation less (iii) the fair market value of the
aggregate consideration that would have been paid or payable to such Stockholder
if he had received the Merger Consideration and/or Parent Series A Preferred
Stock (based on the fair market value of Parent Common Stock to which such
Parent Series A Preferred Stock would be convertible into) pursuant to the
Merger Agreement as originally executed, valued as of immediately prior to the
first public announcement by the Company of its intention to terminate the
Merger Agreement to pursue a Superior Proposal or by any party making a Company
Acquisition Proposal (whichever is lower).
(b) In the event that (i) prior to the Effective Time, a
Company Acquisition Proposal shall have been made and (ii) the Effective Time of
the Merger shall have occurred and Parent for any reason shall have increased
the amount of Merger Consideration payable, or the value of the Parent Series A
Preferred Stock exchangeable, over that set forth in the Merger Agreement in
effect on the date hereof (the "Original Merger Consideration"), each
Stockholder shall pay to Parent on demand an amount in cash equal to the product
of (A) the number of Subject Shares of such Stockholder and (B) 60% of the
excess, if any, of (1) the per share cash consideration or the per share fair
market value of any non-cash consideration, determined as of the Effective Time
of the Merger as the case may be, actually received by the Stockholder as a
result of the Merger, over (2) the fair market value of the Original Merger
Consideration determined as of the time of the first increase in the amount of
the Original Merger Consideration.
(c) For purposes of this Section 2, the fair market value of
any non-cash consideration consisting of:
(i) securities listed on a national securities exchange
or traded on the Nasdaq National Market shall be
equal to the average closing price per share of such
security as reported on such exchange or Nasdaq
National Market for the five trading days before and
after the date of determination; and
(ii) consideration which is other than cash or securities
of the form specified in clause (i) of this Section
2(c) shall be determined by a nationally recognized
independent investment banking firm mutually agreed
upon by the parties within ten (10) business days of
the event requiring selection of such banking firm;
provided, however, that if the parties are unable to
agree within two (2) business days after the date of
such event as to the investment banking firm, then
the parties shall each select one firm, and those
firms shall select a third investment banking firm,
which third firm shall make such determination;
provided further, that the fees and expenses of such
investment banking firm shall be borne equally by
Parent, on the one hand, and the Stockholders, on the
other hand. The determination of the investment
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banking firm shall be binding upon the parties.
(d) Any payment under this Section 2 shall (i) if paid in
cash, be paid by wire transfer of same day funds to an account designated by
Parent and (ii) if paid through a transfer of securities, be paid through
delivery of such securities, suitably endorsed for transfer.
Section 3. Restriction on Transfer, Proxies and
Non-Interference. Except as contemplated by this Agreement, each Stockholder
agrees not to, directly or indirectly, (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to, or
consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment
or other disposition (each, a "Disposition") of, any or all of the Shares or any
interest therein; (ii) grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with respect to any
Shares; or (iii) take any action that would make any representation or warranty
of such Stockholder contained herein untrue or incorrect, or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations under this Agreement or the Company from performing the Company's
obligations under the Merger Agreement.
Section 4. Restriction on Transfer of Shares of Parent Common
Stock. Each Stockholder agrees not to effect any Disposition during any of the
first three 12-month periods (i.e., 3 years) following the Effective Time of an
aggregate number of shares of Parent Common Stock in excess of 33 1/3% of the
number of shares of Parent Common Stock received by such Stockholder in the
Merger. Notwithstanding anything to the contrary in this Agreement, a
Disposition shall not include the exercise of options, and the sale of shares
issuable upon the exercise of such options, by a Stockholder or the repayment of
shares subject to a stock loan and pledge agreement.
Section 5. Non-Solicitation. Each Stockholder shall comply in
all respects with the non-solicitation and other provisions of Section 5.5 of
the Merger Agreement and the other provisions of the Merger Agreement related
thereto, and shall not take any of the actions or do any of the things
restricted or otherwise prohibited thereby.
Section 6. Further Assurances. Each party shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of its obligations under this Agreement.
Section 7. Representations and Warranties of Parent. Parent
represents and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors
of Parent, representing all necessary corporate action on the part of Parent for
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the execution and performance hereof and thereof by Parent (no action by the
stockholders of Parent being required).
(b) This Agreement has been duly executed and delivered by a
duly authorized officer of Parent.
(c) This Agreement constitutes the valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms.
(d) The execution and delivery of this Agreement by Parent
does not violate or breach, and will not give rise to any violation or breach,
of Parent's charter or bylaws, or, except as will not materially impair its
ability to effectuate, carry out or comply with all of the terms of this
Agreement or the Merger Agreement, any Law, Governmental Entity approval or
contract by which Parent or its subsidiaries or their respective assets or
properties may be bound.
Section 8. Representations and Warranties of the Stockholders.
Each Stockholder, as to such Stockholder only, represents and warrants to Parent
as follows:
(a) Schedule I sets forth, opposite each Stockholder's name,
the number and type of Shares of which such Stockholder is the record or
beneficial owner and the number of votes per share to which the Stockholder is
entitled with respect to the Merger Agreement. Such Stockholder is the lawful
owner of such Shares, free and clear of all liens, charges, options, rights,
encumbrances, stockholders agreements, voting agreements, agreements to transfer
or otherwise dispose of such Shares and commitments of every kind, other than
this Agreement and as disclosed in Schedule II and has the sole power to vote
(or cause to be voted) the Shares as set forth in this Agreement. Except as set
forth on such Schedule I, neither such Stockholder nor any of its Affiliates
owns or holds any rights to acquire any additional shares of any class of Voting
Stock or other securities of the Company or any interest therein or any voting
rights with respect to any additional shares of any class of Voting Stock or any
other securities of the Company.
(b) This Agreement has been duly executed and delivered by a
duly authorized officer of such Stockholder or, if the Stockholder is a natural
person, the Stockholder has the legal capacity to execute this Agreement.
(c) This Agreement constitutes the valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance with its
terms.
(d) The execution and delivery of this Agreement by such
Stockholder do not violate or breach, and will not give rise to any violation or
breach, of such Stockholder's charter, by-laws, trust instrument or partnership
agreement, to the extent applicable, or, except as will not materially impair
the ability of such Stockholder to effectuate, carry out or comply with all of
the terms of this Agreement, any Law, third party consent, approval, filing,
registration or similar requirement of any Governmental Entity or any agreement
or contract by which such Stockholder or its assets or properties are bound.
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Section 9. Effectiveness and Termination. In the event the
Merger Agreement is terminated in accordance with its terms or immediately upon
the Effective Time, this Agreement shall automatically terminate and be of no
further force or effect, except that the provisions of Section 2 hereof shall
survive any such termination. Upon such termination, except for any rights any
party may have in respect of any breach by any other party of its obligations
hereunder, none of the parties hereto shall have any further obligation or
liability hereunder other than pursuant to Section 2 hereof. This Agreement
shall continue in full force and effect despite any amendment or other
modification of, or any consent or waiver under, the Merger Agreement; provided,
however, (A) that any amendment by the parties to the Merger Agreement to (x)
the Exchange Ratio or the Merger Consideration (each as defined in Section
2.1(b) of the Merger Agreement), (y) Section 5.5(a) of the Merger Agreement
(including the definition of "Company Acquisition Proposal" set forth in Section
5.5(c) thereof) or (z) Article 7 of the Merger Agreement entitled "Termination;
Amendment; Waiver" or (B) the waiver on or prior to the Closing Date by the
Company of any material condition precedent set forth in Article 6 of the Merger
Agreement, shall require the written consent of the Stockholders, failing which
this Agreement may be terminated in writing by any Stockholder who has not
consented to such amendment or such waiver. In any event, if the Effective Time
shall not have occurred on or before the Termination Date, this Agreement may be
terminated in writing by any Stockholder and it shall be of no further force or
effect as to such Stockholder.
Section 10. Voting Agreement.
Xxxxx Xxxxxxxxxx agrees that he shall enter into a voting
agreement with Infinity Broadcasting Corporation at the Effective Time pursuant
to which Xxxxx Xxxxxxxxxx shall agree, subject to any applicable laws or
regulations of the exchange where the Parent's securities are listed, to vote
all shares of capital stock of Parent for the election of Infinity Broadcasting
Corporation's designees to the Parent's Board of Directors, to the extent such
designees have been nominated by Parent's Board of Directors or a committee
thereof, for election at such meeting.
Section 11. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, confirmed facsimile or telex, or by first class mail (postage prepaid,
return receipt requested), to the other party as follows:
if to Parent, to Westwood One, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
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with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to any Stockholder, to
c/o Metro Networks, Inc.
0000 Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to Paul, Hastings, Xxxxxxxx &
Xxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
(b) Descriptive Headings: The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
(d) Entire Agreement; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable to
contracts made, executed, delivered and performed wholly within such state and,
in any case, without regard to the principles or policies of conflicts of laws
of such state.
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(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other parties hereto and the written
undertaking of the assignee to be bound by the terms of this Agreement, and any
attempt to make any such assignment without such consent shall be null and void.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of Parent and
each Stockholder irrevocably agrees that any legal action or proceeding with
respect to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by the other party hereto or its successors or assigns
may be brought and determined in the Chancery or other Courts of the State of
Delaware, and each of Parent and each Stockholder hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts. Each of Parent and each Stockholder hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any action or proceeding with respect to this Agreement, (a) any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to serve process in accordance with
this Section 11(i), (b) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement may be enforced by a decree of specific performance
issued by a court of competent jurisdiction. Such remedy shall, however, not be
exclusive and, shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
(k) Expenses. Each of Parent and each Stockholder shall bear
its own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Action in Stockholder Capacity Only. No Stockholder makes
any agreement or understanding herein as a director or officer of the Company or
in any capacity other than as a stockholder of the Company. Each Stockholder
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signs solely in its capacity as a record holder and beneficial owner of Shares
and nothing herein shall limit or affect any actions taken by a representative
of such Stockholder in such representative's capacity as an officer or director
of the Company.
(m) Obligations Several. The obligations of each Stockholder
under this Agreement shall be several and not joint. No Stockholder shall have
any liability, duty or obligation arising out of or resulting from any failure
by any other Stockholder (or any Affiliate thereof) to comply with the terms and
conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO COMPANY STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Company
Stockholder Voting Agreement as of the date first above written.
WESTWOOD ONE, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President,
Chief Financial Officer
and Secretary
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
XXXXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
XXXXX X. XXXXXXX
Schedule I
Ownership of Voting Stock
Name and Address Class and Series Number of Shares Number of
of Stockholder of Voting Stock Owned Votes per Share
-------------- --------------- ----- ---------------
Xxxxx X. Xxxxxxxxxx Common Stock 7,615,610 1
Series A
Convertible
Preferred Stock 2,549,750 1
Xxxxxxx X. Xxxxxxxx Common Stock 0 1
Xxxxx X. Xxxxxxx Common Stock 1,000 1
Schedule II
Liens on Shares
1. Share certificates nos. 1 (1,387,064 shares of Series A Convertible Preferred
Stock), 2 (1,122,686 shares of Series A Convertible Preferred Stock) and 11
(1,050,750 shares of common stock) are pledged under the stock loan agreements
between Xxxxx Xxxxxxxxxx and the Company or Xxxxx Xxxxxxxxxx and certain trusts
for the benefit of his children.
2. 350,000 shares of common stock held by Xxxxxxx Sachs & Co. are pledged to
secure a loan of $5,000,000 made by Xxxxxxx Xxxxx & Co. to an entity controlled
by Xx. Xxxxxxxxxx.
