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.
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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:
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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;
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(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
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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 G. Schmalzl
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
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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
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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.
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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
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/s/ L. Lowry Mays /s/ Randall T. Mays
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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
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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
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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/ Randall T. Mays /s/ Mark P. Mays
- -------------------------------------- ----------------------------------
RANDALL T. MAYS MARK P. MAYS
As Trustee for Lowry Thomas Mays As Trustee for the Charlotte Moreau
Family Trust
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
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L. LOWRY MAYS L. LOWRY MAYS
As Trustee for the Maddox Family Trust As Trustee for the Ralph Maddox
Family Trust
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
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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
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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.
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