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EXHIBIT 2.5.9
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 10, 1996 (this "Agreement"), by
and among Heftel Broadcasting Corporation, a Delaware corporation ("Heftel"),
on the one hand, and XxXxxxx X. Xxxxxxxx, Xx., XxXxxxx X. Xxxxxxxx, Xx. and
Xxxxxx X. Xxxxxxxx (the "Shareholders").
RECITALS:
A. Concurrently herewith, Clear Channel Communications, Inc., a
Delaware corporation ("Clear Channel"), and Xxxxxxxx Media System, Inc., a
Texas corporation (the "Company"), are entering into that certain Amended and
Restated Merger Agreement of even date herewith (the "Merger Agreement"),
providing for the merger (the "Merger") of Heftel Subsidiary, Inc., a Texas
corporation ("Merger Sub") and a subsidiary of Heftel, with and into the
Company.
B. Clear Channel has submitted the Merger Agreement to Heftel's
Board of Directors to approve the assignment of the Merger Agreement to Heftel.
C. The Shareholders have or will have effective authority to direct
the voting of certain shares of Company Common Stock and Company Junior
Preferred Stock (together, the "Company Stock") pursuant to that certain Voting
Agreement (the "Xxxxxxxx Voting Agreement"), dated as of July 1, 1996, by and
among the Shareholders, XxXxxxx X. Xxxxxxxx, Xx., as Custodian for Xxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx and the Company.
D. Approval of the Merger Agreement by the Company's shareholders is
a condition to the consummation of the Merger.
E. The Shareholders fully support the Merger and, in order to
encourage Heftel to accept an assignment of the Merger Agreement, the
Shareholders are willing to enter into certain arrangements with respect to the
Company Stock that they have the authority to vote.
AGREEMENTS:
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 OR CONSENT. Each Shareholder hereby
agrees to attend the Special Meeting of the Company's Shareholders to be held
for the purposes of approving the Merger Agreement and the Merger (the "Company
Shareholders' Meeting"), in person or by proxy, and to vote, or cause to be
voted (or, if the shareholders of the Company act by written consent, to
consent in writing, or cause to consent in writing, with respect to), all
Company Stock, and any other voting securities of the Company, whether issued
heretofore or hereafter, that such Shareholder owns and/or has the right to
vote or consent or direct the vote or consent with respect to approval and
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adoption of the Merger Agreement and the Merger, such agreement to vote to
apply also to any adjournment or adjournments of the Company Shareholders'
Meeting.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. The
Shareholders represent and warrant to Heftel as follows:
SECTION 2.1. OWNERSHIP OF SHARES. Until the termination of this
Agreement, the Shareholders shall not sell or otherwise transfer any of the
Company Stock other than any sales or transfers to Clear Channel pursuant to
the terms of those certain Stock Purchase Agreements dated as of July 9, 1996.
The Shareholders have good, valid and marketable title to the Company Stock,
free and clear of all liens, encumbrances, restrictions, options, warrants,
rights to purchase and claims of every kind (other than the encumbrances
created by this Agreement, restrictions on transfer under applicable Federal
and state securities laws and the pledge of the Company Stock as security for
certain indebtedness of the Company pursuant to that certain Pledge Agreement
dated July 9, 1996 in favor of Nations Bank of Texas, N.A. (the "Pledge
Agreement")).
SECTION 2.2. POWER; BINDING AGREEMENT. The Shareholders have the full
legal right, power and authority to enter into and perform all of the
Shareholders' obligations under this Agreement. The execution and delivery of
this Agreement by the Shareholders will not violate any other agreement to
which any Shareholder is a party, including, without limitation, any voting
agreement, stockholders agreement, trust agreement, voting trust or proxy.
This Agreement has been duly executed and delivered by the Shareholders and
constitutes a legal, valid and binding agreement of the Shareholders,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws, now or hereafter in effect affecting creditors'
rights and remedies generally or general principles of equity. Neither the
execution or delivery of this Agreement nor the consummation by the
Shareholders of the transactions contemplated hereby will (i) require any
consent or approval of or filing with any governmental or other regulatory body
or (ii) upon receipt of a waiver of certain provisions of the Pledge Agreement,
constitute a violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or other
restriction of any kind to which any Shareholder is a party or by which any
Shareholder is bound.
SECTION 2.3. ABSENCE OF CERTAIN AGREEMENTS. No Shareholder has entered
into any agreement, letter of intent or similar agreement (whether written or
oral) with any party other than Heftel whereby such Shareholder has agreed to
support, directly or indirectly, any proposal or offer (whether or not in
writing and whether or not delivered to the shareholders of the Company
generally) for a merger or other business combination involving the Company or
to acquire in any manner, directly or indirectly, a material equity interest
in, any voting securities of, or a substantial portion of the assets of the
Company, other than the transactions contemplated by the Merger Agreement.
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SECTION 3. REVOCATION OF PROXIES AND CONSENTS. To the extent
inconsistent with Section 1 hereof, each Shareholder hereby revokes any and all
previous proxies or written consents with respect to such Shareholder's Company
Stock or any other voting securities of the Company.
SECTION 4. EFFECTIVENESS. The performance of the obligations of the
parties contained herein shall be subject to the prior receipt of any required
consent or approval of the Merger under the Communications Act or the HSR Act.
SECTION 5. NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given upon receipt, if delivered personally, or by nationally recognized
overnight courier service or registered or certified mail (postage prepaid,
return receipt requested), in each case, 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 to the telecopier number
specified below:
(a) If to Heftel:
Heftel Broadcasting Corporation.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attn:
with a copy to:
Akin, Gump, Xxxxxxx Xxxxx & Xxxx, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Mount
(b) If to the Shareholders, to the address set forth opposite
such Shareholder's name on the signature pages hereto:
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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SECTION 6. AMENDMENTS. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified except by an instrument in writing
signed by Heftel and each Shareholder.
SECTION 7. SUCCESSORS AND ASSIGNS. Subject in all respects to
Section 4 hereof, this Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
SECTION 8. ENTIRE AGREEMENT. This Agreement embodies the entire
Agreement and understanding among the parties hereto relating to the subject
matter hereof and supersedes all prior agreements and understandings relating
to such subject matter. There are no representations, warranties or covenants
by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement.
SECTION 9. FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to
consummate the transactions contemplated by this Agreement. Each Shareholder
agrees to cause the Company to place an appropriate legend reflecting the
existence of this Agreement on any certificate representing shares of Company
Stock in the event of a transfer of such shares.
SECTION 10. 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 so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. 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 of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 11. SPECIFIC PERFORMANCE. The parties hereby acknowledge and
agree that the failure of any party to this Agreement to perform such party's
agreement and covenants hereunder will cause irreparable injury to the other
parties to this Agreement for which damages, even if available, will not be an
adequate remedy. Accordingly, each of the parties hereto hereby consents to
the issuance of injunctive relief by any court of competent jurisdiction to
compel performance of any party's obligations and to the granting by any such
court of the remedy of specific performance of such party's obligations
hereunder. By seeking or obtaining such relief, the aggrieved party will not
be precluded from seeking or obtaining any other relief to which it may be
entitled.
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SECTION 12. NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any person or
entity who or which is not a party hereto.
SECTION 13. GOVERNING LAW. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Texas.
SECTION 14. 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.
SECTION 15. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 16. EXPENSES. Heftel and each Shareholder shall bear their
own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
SECTION 17. TERMINATION. This Agreement shall terminate upon the
earlier of (a) termination of the Merger Agreement; (b) the date on which
Heftel and the Shareholders mutually consent to terminate this Agreement in
writing; and (c) upon the consummation of the transactions contemplated by the
Merger Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Heftel Broadcasting Corporation
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
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Title: Senior Vice President - Operations
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/s/ XxXXXXX X. XXXXXXXX, XX.
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XxXxxxx X. Xxxxxxxx, Xx.
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
/s/ XxXXXXX X. XXXXXXXX, XX.
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XxXxxxx X. Xxxxxxxx, Xx.
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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