(..continued)
CONFORMED COPY
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of October
23, 1997, is entered into by and among Clear Channel Communications, Inc., a
Texas corporation ("Parent"), and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "Stockholder").
WHEREAS, Parent, UH Merger Sub, Inc. ("Merger Sub") and
Universal Outdoor Holdings, Inc. (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 Stockholder is the record
and beneficial owner of, and has the sole right to vote and dispose 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 such Stockholder's
name on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has required that the Stockholder agree, and the
Stockholder is willing to agree, to the matters set forth herein.
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. For so long as the Merger Agreement is in
effect, the Stockholder 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:
(i) 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;
(ii) against any action or agreement that could result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation of the Company under this Agreement or the Merger
Agreement; and
(iii) against (A) any extraordinary corporate transaction,
such as amerger, 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 subsidiaries or the issuance of any securities of the Company or
any subsidiary, (C) any change in the executive officers or Board of Directors
of the Company, (D) any change in the present corporate structure or business
of the Company or (E) any action that is intended, or could reasonably be
expected, to materially impede, interfere with, delay, postpone or adversely
affect the Merger and the transaction contemplated by the Merger Agreement.
1.2 Proxy. At Parent's request Stockholder will deliver to Parent an
irrevocable proxy only with respect to the matters covered by clauses (i), (ii)
and (iii) of this paragraph 1 granting to Parent or its designee a proxy to vote
the Shares in accordance with the terms of this Agreement; provided, that such
proxy shall survive only for so long as the Merger Agreement is in effect.
2. Representations and Warranties of Stockholder. The
Stockholder represents and warrants to Parent as follows:
2.1 Binding Agreement. The Stockholder has the capacity 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,
the consummation of the transactions contemplated hereby, nor the compliance
with any of the provisions hereof, (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 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, or (d) violate or
conflict with any order, writ, injunction, decree or law applicable to the
Stockholder or the Shares.
2.3 Ownership of Shares. The Stockholder is the record and beneficial
owner of the Shares free and clear of any security interests, liens, charges,
encumbrances, equities, claims, options or limitations of whatever nature and
free of any other limitation or restriction (including any restriction on the
right to vote, sell or otherwise dispose of the Shares). Except as set forth on
Schedule II attached hereto, there are no outstanding options or other rights to
acquire from the Stockholder, or obligations of the Stockholder to sell or to
acquire, any shares of Company Common Stock. 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 the
Company beneficially owned by Stockholder.
3. Representations and Warranties of Parent. Parent represents
and warrants to the Stockholder as follows:
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 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 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 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
Stockholder or the Shares.
4. Transfer and Other Restrictions. For so long as the Merger Agreement
is in effect:
4.1 Certain Prohibited Transfers. The Stockholder agrees not to:
(a) sell, transfer, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, the Shares or any interest contained therein, other than
pursuant to this 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; nor
(c) deposit the Shares into a voting trust.
4.2 Efforts. The Stockholder agrees not to take any action which would
make any representation or warranty of the Stockholder herein untrue or
incorrect in any material respect or take any action that would have the effect
of preventing or disabling such Stockholder from performing its obligations
under this Agreement, other than any action permitted to be taken pursuant to
the Merger Agreement.
4.3 Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting the Shares or (ii) the Stockholder
shall become 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 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. The Stockholder 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 the Stockholder, if any, after the date hereof.
5. Legend. The Stockholder shall surrender to the Company all
ertificates representing the Shares, and instruct the Company to place the
following legend on such certificates:
"The shares of capital stock represented by this certificate are subject
to a Voting Agreement, dated as of October 23, 1997, by and among Clear
Channel Communications, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇."
6. 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 specific performance
of the terms hereof, in addition to any other remedy which may be available at
law or in equity.
7. Confidentiality. Except as may be required by applicable
law, the Stockholder and Parent severally agree to keep proprietary information
regarding the Company and Parent and their respective subsidiaries confidential.
8. Termination. Except for Section 7 hereof, which shall
survive without limitation, and Sections 8 and 9 hereof, which shall survive for
the period specified therein, this Agreement shall terminate on the earlier of
(i) the termination of the Merger Agreement in accordance with its terms, (ii)
the agreement of the parties hereto to terminate this Agreement and (iii)
consummation of the Merger.
9. Indemnification. Parent shall, to the fullest extent
permitted under applicable law, indemnify and hold harmless, the Stockholder
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 Stockholders's entering
into this Agreement, for a period of six years after the date hereof. In the
event of 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 the Stockholder and reasonably
acceptable to Parent to represent him 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 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.
10. 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 Parent, to:
Clear Channel Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇ P.C.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stockholder, to:
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
11. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise.
12. 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.
13. Consideration. This Agreement is granted in consideration
of the execution and delivery of the Merger Agreement by Parent.
14. 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.
15. 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.
16. 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.
17. 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).
18. 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.
19. 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.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the Stockholder and a duly authorized officer of Parent on the day
and year first written above.
CLEAR CHANNEL COMMUNICATIONS, INC.
By: \s\ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
\s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
SCHEDULE I TO
VOTING AGREEMENT
Name of Stockholder Number of Shares
1. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,315,292
SCHEDULE II TO
VOTING AGREEMENT
None.