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EXHIBIT 10.3
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of this 2nd day of
October, 1999, is entered into by and among CLEAR CHANNEL COMMUNICATIONS, INC.,
a Texas corporation ("Parent"), and the other parties listed on the signature
page hereof (collectively, the "Stockholders" or individually, a "Stockholder").
W I T N E S S E T H:
WHEREAS, Parent, CCU Merger Sub, Inc., a Delaware corporation ("Merger
Sub"), and AMFM Inc., a Delaware corporation (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 Stockholders are the record owners
of the number of shares (the "Shares") of common stock, par value $0.01 per
share, of the Company (the "Company Common Stock") set forth opposite their
respective names on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
are 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. Each of the Stockholders 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:
(a) 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;
(b) 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 the Merger Agreement; and
(c) except for all such actions which may be permitted to the
Company under Section 5.1(a) 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 of assets of the Company or any of its material subsidiaries or the
issuance of any
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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 Stockholders. Each Stockholder
represents and warrants to Parent as follows in each case as of the date hereof:
2.1. Binding Agreement. Such Stockholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. Such Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of such Stockholder, enforceable against it 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
such Stockholder (a) requires 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) results 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 results in the creation of a security interest, lien, charge,
encumbrance, equity or claim with respect to any of the Shares, (c) requires any
material consent, authorization or approval of any person other than a
governmental entity which has not been obtained, or (d) violates or conflicts
with any order, writ, injunction, decree or law applicable to any 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 any
Stockholder, the Stockholders are the record owners of the Shares free and clear
of any security interests, liens, charges, encumbrances, options or restriction
on the right to vote the Shares. The Stockholders hold exclusive power to vote
the Shares, subject to the limitations set forth in Section 1 of this Agreement.
Except as set forth in Schedule I, the Shares represent all of the shares of
capital stock of the Company owned of record by the Stockholders.
3. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholders 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 power and authority to execute and deliver this Agreement and
to consummate the transactions
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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 and
obtaining all other Parent Stockholder Approvals required by Section 5.3 of the
Merger Agreement, 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 hereby and 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. Transfers Prohibited. Each of the Stockholders agrees not to:
(a) sell, transfer, assign, 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;
(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; or
(d) 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.
4.2. Additional Shares. Without limiting the provisions of the
Merger Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification,
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combination or exchange of shares of capital stock of the Company on, of or
affecting the Shares or (ii) the Stockholder becoming 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 a Stockholder
immediately following the effectiveness of the events described in clause (i) or
a Stockholder becoming the beneficial owner thereof, as described in clause
(ii), as though they were Shares hereunder. Each of the Stockholders 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 such 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 Section 7 hereof, which shall survive for
the period specified therein, this Agreement shall terminate, with respect to a
Stockholder to whom any of the following applies, as applicable, 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 such Stockholder ceases to own any Shares other than as a result
of the breach of this Agreement; provided, however, this Agreement shall not
terminate with respect to the other Stockholders to whom none of the foregoing
clauses (i) through (iv) applies.
7. Indemnification. Parent shall, to the fullest extent permitted
under applicable law, indemnify and hold harmless each of the Stockholders
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 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 a
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 such Stockholder and reasonably acceptable to Parent to represent
such 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 under this Section 7 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 final disposition of any and all such claims.
This Section 7 shall survive until the latest of the following: (i) six years
from the date hereof, (ii) the termination of this Agreement, and (iii) the
final disposition of all claims for indemnification asserted or made within the
six-year period following the date hereof.
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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 the Parent, to:
Clear Channel Communications, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000-0000
Attention: X. Xxxxx 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: Xxxxxxx X. Xxxxxxx, P.C.
Facsimile No.: (000) 000-0000
If to the Stockholders, to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx Xxxxx,00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
9. 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.
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10. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by Parent.
11. 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.
12. 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.
13. 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.
14. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of Texas
(without giving effect to the provisions thereof relating to conflicts of law).
15. 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.
16. 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.
17. Record Ownership. As used herein, the term "record owner" or
"record holder" shall mean ownership of Shares directly or through a nominee.
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HMTF VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the Stockholders and a duly authorized officer of Parent on the day and year
first written above.
PARENT
CLEAR CHANNEL COMMUNICATIONS, INC., A
TEXAS CORPORATION
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
By: Xxxxxxx X. Xxxx
Title: Executive Vice President and
Chief Executive Officer
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HMTF VOTING AGREEMENT SIGNATURE PAGE
STOCKHOLDERS:
HM2/HMW, L.P.
By: HICKS, MUSE, XXXX & XXXXX EQUITY FUND
II, L.P., its general partner
By: HM2/GP PARTNERS, L.P., its general
partner
By: XXXXX, MUSE GP PARTNERS, L.P., its
general partner
By: XXXXX, MUSE FUND II INCORPORATED, its
general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
HM2/CHANCELLOR, L.P.
By: HM2/CHANCELLOR GP, L.P., its general
partner
BY: HM2/CHANCELLOR HOLDINGS, INC., ITS
GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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HMTF VOTING AGREEMENT SIGNATURE PAGE
HM4/CHANCELLOR, L.P.
By: XXXXX, MUSE FUND IV LLC, its general
partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
CAPSTAR BROADCASTING PARTNERS, L.P.
BY: HM3/CAPSTAR PARTNERS, L.P., ITS
GENERAL PARTNER
By: HM3/CAPSTAR, INC., its general
partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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SCHEDULE I TO
VOTING AGREEMENT
Name of Stockholder Number of Shares
------------------- ----------------
HM2/HMW, L.P. 2,155,514
HM2/Chancellor, L.P. 13,127,402
Capstar Broadcasting Partners, L.P.(1) 30,007,111
HM4/Chancellor, L.P. (2) 8,542,485
(1) Does not include 190,902 shares of Company Common Stock that
Capstar Broadcasting Partners, L.P. is in the process of distributing
to its partners, and such shares shall not be subject to this Agreement
in any respect.
(2) Does not include 170,515 shares of Company Common Stock that
HM4/Chancellor, L.P. is in the process of distributing to its partners,
and such shares shall not be subject to this Agreement in any respect.
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SCHEDULE II TO
VOTING AGREEMENT
None.
