Voting Agreement - Jacor Communications Inc., Clear Channel Communications Inc., L. Lowry Mays, Randall T. Mays and Mark Mays
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of October
8, 1998, is entered into by and among Jacor Communications, Inc., a Delaware
corporation (the "Company"), and the other parties listed on the signature page
hereof (collectively, the "Stockholders" and, individually, a "Stockholder").
WHEREAS, the Company, Clear Channel Communications, Inc.
("Parent"), and CCU Merger Sub, Inc. ("Merger Sub") 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, each of the Stockholders is
the owner of the number of shares (the "Shares") of common stock, par value
$0.10 per share, of Parent ("Parent 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, the Company has required that the Stockholders agree, and each
of the Stockholders hereby agrees, 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 such Stockholder's 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 Parent, 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 of the
issuance of Parent Common Stock in the Merger (the "Parent Proposal") 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 Parent under this
Agreement or the Merger Agreement;
and
(iii) except for all such actions which may be
permitted to Parent under Section 5.1(b) of the Merger Agreement, against (A)
any extraordinary corporate transaction, such as a merger, rights offering,
reorganization, recapitalization or liquidation involving Parent or any of its
subsidiaries other than the Merger, (B) a sale or transfer of a material amount
of assets of Parent or any of its material subsidiaries or the issuance of any
securities of Parent or any subsidiary, (C) any change in the Board of Directors
of Parent other than in connection with an annual meeting of the shareholders
of Parent with respect to the slate of directors proposed by the incumbent Board
of Directors of Parent (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 of the
Stockholders severally represents and warrants to the Company as follows in each
case as of the date hereof:
2.1. Binding Agreement. The Stockholder has the
capacity and full power and authority 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 such 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 Parent beneficially owned by Stockholder.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Stockholders as follows in each case as
of the date hereof:
3.1. Binding Agreement. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has full corporate 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 the Company and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by the Board of
Directors of the Company, and no other corporate proceedings on the part of
the Company except for the approval and adoption of the Merger Agreement and
approval of the Merger by a majority of the holders of shares of Company
common stock are necessary to authorize the execution, delivery and performance
of this Agreement and the Merger Agreement by the Company and the consummation
of the transactions contemplated thereby. The Company has duly and validly
executed this Agreement and this Agreement constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company 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 the Company of the transactions
contemplated hereby, nor the compliance by the Company with any of the
provisions hereof will (a) conflict with or result in a breach of any provision
of its Certificate 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 the Company.
4. Transfer and Other Restrictions. For so long as the
Merger Agreement is in effect: 4.1. Certain
Prohibited Transfers. Each of the Stockholders
generally agrees not to:
(a) sell, transfer, assign 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 if (i) such sale, transfer, assignment
or other disposition, taken together with all other sales, transfers,
assignments or other dispositions by the Stockholders, as a group, during the
period from the date hereof through the date of the meeting held to consider
the Parent Proposal, would be of shares in an amount in excess of 1% of the
Parent Common Stock then outstanding or (ii) such sale, transfer, assignment
or other disposition is reasonably likely to impact the Average Closing Price
(as defined in the Merger 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) buy, sell or trade any equity security of Parent
including, without limitation, entering into any put, call, option, swap or
collar derivative transaction which has a similar economic effect if such
purchase, sale or trade is reasonably likely to impact the Average Closing
Price.
4.2. Additional Shares. Without limiting the
provisions of the Merger Agreement, in the event of (i) any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock of Parent on, or affecting the Shares or (ii) the
Stockholder shall become the beneficial owner of any additional shares of
Parent 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 Parent 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. Each of the Stockholders hereby agrees, while this Agreement
is in effect, to promptly notify the Company 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,
with respect to a Stockholder to whom any of the following applies, as
applicable, but shall not terminate with respect to the other Stockholders 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 by such Stockholder of this Agreement.
7. Indemnification. The Company 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 Parent or any stockholder of Parent asserting any
breach by the Stockholder of any fiduciary duty on his part to Parent or the
other stockholders of Parent 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 the Company for any such claim, action,
suit, proceeding or investigation (whether arising before or after the
termination of this Agreement), (a) the Company shall pay the fees and expenses
of one counsel selected by the Stockholder and reasonably acceptable to the
Company to represent the Stockholder in connection therewith promptly after
statements therefor are received, and (b) the Company will cooperate in the
defense of any such matter; provided, however, that the Company 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 the Company, to:
Jacor Communications, Inc.
50 E. RiverCenter Blvd.
Suite 1200
Covington, KY 41011
Attention: Randy Michaels
Facsimile No.: (606) 655-9354
with a copy to:
Graydon Head & Ritchey
511 Walnut Street
1900 Fifth Third Center
Cincinnati, OH 45202
Attention: Richard S. Schwalzl
Facsimile No.: (513) 651-3836
and to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: William A. Groll
Facsimile No.: (212) 225-3999
If to Stockholder, to:
The Stockholder
200 Concord Plaza
Suite 600
San Antonio, Texas 78216
Attention: the Stockholder
Facsimile No.: (210) 829-8080
with a copy to:
Akin, Gump, Strauss, Hauer & Feld L.L.P.
1700 Pacific Avenue
Suite 4100
Dallas, Texas 75201
Attention: Ford Lacy, P.C.
Facsimile No.: (214) 969-4343
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.
10. Consideration. This Agreement is granted in consideration
of the execution and delivery of the Merger Agreement by the Company.
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 Delaware (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. Shareholder Capacity. No Stockholder or designee of any
Stockholder who is or becomes during the term hereof a director or officer of
Parent 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 Parent.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Stockholder and a duly authorized officer of the Company on the
day and year first written above.
JACOR COMMUNICATIONS, INC.
By: /s/ R. Christopher Weber
Name: R. Christopher Weber
Title: Chief Financial Officer
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Stockholder and a duly authorized officer of the Company on the
day and year first written above.
/s/ L. Lowry Mays /s/ Randall T. Mays
L. LOWRY MAYS RANDALL T. MAYS
Address: 200 Concord Plaza, Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.: (210) 829-8080 Facsimile No.: (210) 829-8080
/s/ Mark P. Mays /s/ Mark P. Mays
MARK P. MAYS MARK P. MAYS
As Trustee for Ryan Mays
Address: 200 Concord Plaza Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.:(210) 829-8080 Facsimile No.: (210) 829-8080
/s/ Mark P. Mays /s/ Mark P. Mays
MARK P. MAYS MARK P. MAYS
As Trustee for Patrick Mays As Trustee for Daniel Mays
Address: 200 Concord Plaza Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.: (210) 829-8080 Facsimile No.: (210) 829-8080
/s/ Mark P. Mays /s/ Randall T. Mays
MARK P. MAYS RANDALL T. MAYS
As Trustee for Andrew John Mays As Trustee for Grace Mays
Address: 200 Concord Plaza Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.: (210) 829-8080 Facsimile No.: (210) 829-8080
<PAGE>
/s/ Randall T. Mays /s/ Mark P. Mays
RANDALL T. MAYS MARK P. MAYS
As Trustee for Lowry Thomas Mays As Trustee for the Charlotte
Trust Moreau Family
Address: 200 Concord Plaza Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.: (210) 829-8080 Facsimile No.: (210) 829-8080
/s/ L. Lowry Mays /s/ L. Lowry Mays
L. LOWRY MAYS L. LOWRY MAYS
As Trustee for the Maddox Family Trust As Trustee for the Ralph
Trust Maddox Family
Address: 200 Concord Plaza Address: 200 Concord Plaza
Suite 600 Suite 600
San Antonio, Texas 78216 San Antonio, Texas 78216
Facsimile No.: (210) 829-8080 Facsimile No.: (210) 829-8080
<PAGE>
SCHEDULE I TO
VOTING AGREEMENT
Name of Stockholder Number of Shares
L. Lowry Mays 29,084,078
Randall T. Mays 559,176
Mark Mays 795,296
Mark P. Mays 35,188
As Trustee for Ryan Mays
Mark P. Mays 35,196
As Trustee for Patrick Mays
Mark P. Mays 11,636
As Trustee for Daniel Mays
Mark P. Mays 1,260
As Trustee for Andrew John Mays
Randall T. Mays 6,444
As Trustee for Grace Mays
Randall T. Mays 3,108
As Trustee for Lowry Thomas Mays
Mark P. Mays 2,696
As Trustee for the Charlotte Moreau Family Trust
L. Lowry Mays 55,056
As Trustee for the Maddox Family Trust
L. Lowry Mays 45,000
As Trustee for the Ralph Maddox Family Trust
<PAGE>
SCHEDULE II TO
VOTING AGREEMENT
Mark P. Mays holds 35,188 Shares of Parent Common Stock as trustee for Ryan
Mays.
Mark P. Mays holds 35,196 Shares of Parent Common Stock as trustee for Patrick
Mays.
Mark P. Mays holds 11,636 Shares of Parent Common Stock as trustee for Daniel
Mays.
Mark P. Mays holds 1,260 Shares of Parent Common Stock as trustee for Andrew
John Mays.
Randall T. Mays holds 6,444 Shares of Parent Common Stock as trustee for Grace
Mays.
Randall T. Mays holds 3,108 Shares of Parent Common Stock as trustee for Lowry
Thomas Mays.
Mark P. Mays holds 2,696 Shares of Parent Common Stock as trustee for the
Charlotte Moreau Family Trust.
L. Lowry Mays holds 55,056 Shares of Parent Common Stock as trustee for the
Maddox Family Trust.
L. Lowry Mays holds 45,000 Shares of Parent Common Stock as trustee for the
Ralph Maddox Family Trust.