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EXHIBIT 99.1
STOCKHOLDER VOTING AND SUPPORT AGREEMENT
This STOCKHOLDER VOTING AND SUPPORT AGREEMENT (the "AGREEMENT"), dated as
of October 5, 2001, is entered into by and between Clear Channel Communications,
Inc., Inc., a Texas corporation ("PARENT") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, Parent, CCMM Sub, Inc., a Delaware corporation ("MERGER SUB"), and
The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware corporation ("COMPANY"), have entered into
an Agreement and Plan of Merger of even date herewith (as the same may be
amended from time to time, 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 Company (the "MERGER");
WHEREAS, as of the date hereof, Stockholder is the record or Beneficial
Owner of the number of shares of (a) common stock, par value $0.01 per share, of
Company ("COMPANY ORDINARY COMMON STOCK"), and (b) Class B common stock, par
value $0.01 per share, of Company ("COMPANY CLASS B STOCK" and, together with
Company Ordinary Common Stock, the "COMPANY COMMON STOCK"), set forth in Part A,
Column 1 of Schedule I attached hereto, the "TOTAL SHARES"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that Stockholder agree, and in order to induce
Parent to enter into the Merger Agreement, Stockholder is willing to agree, to
(a) vote the shares of Company Ordinary Common Stock set forth in Part A, Column
2 of Schedule I attached hereto (the "SUBJECT SHARES") in the manner specified
in Section 2(a) with respect to matters bearing directly or indirectly on the
consummation of the Merger, and to provide an irrevocable proxy in connection
with such agreement to vote the Subject Shares in such manner; (b) pay to Parent
a specified amount in connection with the consummation of certain alternative
transactions to the Merger and (c) such other matters as are set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
agreements, representations and warranties herein contained, and intending to be
legally bound hereby, Parent and Stockholder hereby agree as follows:
1. Definitions. Capitalized terms not expressly defined in this Agreement
will have the meanings ascribed to them in the Merger Agreement. For purposes of
this Agreement:
(a) "AFFILIATE" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person.
(b) "BENEFICIALLY OWN," "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP"
with respect to any securities will mean having voting power or investment power
with respect to such securities (as determined pursuant to Rule 13d-3(a) under
the Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
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(c) "TERMINATION DATE" means the earlier to occur of (i) the date on
which the Merger Agreement is terminated in accordance with the provisions of
Article VII of the Merger Agreement and (ii) the Effective Time.
2. Voting Agreement; Proxy.
(a) Agreement to Vote the Subject Shares. From the date of this
Agreement and ending on the Termination Date, Stockholder hereby agrees to vote
(or cause to be voted) all of the Subject 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 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 other actions or agreements
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 Company under the Merger Agreement; and
(iii) against any (A) direct or indirect acquisition or purchase by
a third party of a business that constitutes 15% or more of the net revenues,
net income or the assets of Company and its Subsidiaries taken as a whole, (B)
direct or indirect acquisition or purchase by a third party of 15% or more of
any class of equity securities of Company or any of its Subsidiaries whose
business constitutes 15% or more of the net revenues, net income or assets of
Company and its Subsidiaries, taken as a whole (each, a "MATERIAL SUBSIDIARY"),
(C) tender offer or exchange offer that if consummated would result in any
person beneficially owning 15% more of any class of equity securities of Company
or any Material Subsidiary, (D) merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
Company or any Material Subsidiary, other than the transactions contemplated by
this Agreement (any transaction described in clauses (A), (B), (C) and (D) is
referred to as an "ACQUISITION PROPOSAL"), and (E) to the extent that such
action is reasonably likely to materially impede, interfere with, delay,
postpone or adversely affect in any material respect the Merger and the
transactions contemplated by the Merger Agreement, (1) any change in a majority
of the Board of Directors of Company other than in connection with an annual
meeting of the stockholders of Company with respect to the slate of directors
proposed by the incumbent Board of Directors of Company (in which case
Stockholder agrees to vote for the slate proposed by the incumbent Board of
Directors of Company) or (2) except for such actions as are contemplated by the
Merger Agreement, any material change in Company's corporate structure or
business.
(b) Irrevocable Proxy. Simultaneously with the execution of this
Agreement, Stockholder will deliver to Parent a proxy in the form attached
hereto as Exhibit A (the "PROXY"), which will be irrevocable with respect to the
Subject Shares; provided, that the Proxy will survive only until the Termination
Date. The parties agree that by reason of the Merger Agreement the Proxy is a
proxy coupled with an interest.
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3. Alternative Disposition; Second Transaction.
(a) Alternative Disposition. If any of the Total Shares are sold,
transferred, exchanged, canceled or disposed of in connection with or as a
result of any Acquisition Proposal (as defined for purposes of Section
5.18(c)(ii) of the Merger Agreement) that is in existence on or that has been
otherwise made prior to the Termination Date (an "ALTERNATIVE DISPOSITION")
then, within five business days after the closing of such Alternative
Disposition, Stockholder will tender and pay to, or will cause to be tendered
and paid to, Parent, or its designee, in immediately available funds, an amount
equal to 50% of the Profit realized from such Alternative Disposition. As used
in this Section 3, "PROFIT" will mean an amount equal to the excess, if any, of
(i) the Alternative Transaction Consideration over (ii) the Current Transaction
Consideration. As used in this Section 3, "ALTERNATIVE TRANSACTION
CONSIDERATION" will mean all cash, securities, settlement or termination
amounts, notes or other debt instruments, and other consideration received or to
be received, directly or indirectly, by Stockholder in respect of the Total
Shares in connection with or as a result of such Alternative Disposition or any
agreements or arrangements (including, without limitation, any employment
agreement (except a bona fide employment agreement pursuant to which Stockholder
is required to devote, and under which Stockholder in good faith intends to
devote, substantially all of Stockholder's business time and effort to the
performance of executive services for the Company in a manner substantially
similar to Stockholder's current employment arrangements with the Company),
consulting agreement, non-competition agreement, confidentiality agreement,
settlement agreement or release agreement) entered into, directly or indirectly,
by Stockholder as a part of or in connection with the Alternative Disposition or
associated Acquisition Proposal (such amounts to be calculated as of the date of
consummation of such Alternative Disposition and assuming, for calculation
purposes, Stockholder holds such number of Total Shares as set forth in Part A,
Column 1 of Schedule I attached hereto without regard to the actual beneficial
ownership of such shares). As used in this Agreement, "CURRENT TRANSACTION
CONSIDERATION" will mean the sum of all amounts to be received, directly or
indirectly, by Stockholder pursuant to Article II of the Merger Agreement (such
amounts to be calculated as of the Termination Date and assuming, for
calculation purposes, Stockholder holds such number of Total Shares as set forth
in Part A, Column 1 of Schedule I attached hereto without regard to the actual
beneficial ownership of such shares) as well as the value of all Options to be
received by Stockholder in connection with the Merger and the aggregate amount
of all other payments or other consideration to be received by Stockholder as a
direct result of the Merger.
(b) Profit Determination. For purposes of determining Profit under this
Section 3, (i) all non-cash items will be valued based upon the fair market
value thereof as determined by an independent expert selected by Parent and who
is reasonably acceptable to Stockholder, (ii) all deferred payments or
consideration will be discounted to reflect a market rate of net present value
thereof as determined by the above-referenced independent expert, (iii) all
contingent payments will be assumed to have been paid and (iv) if less than all
of the Total Shares are subject to the Alternative Disposition, then the Current
Transaction Consideration will be deemed to be an amount equal to the Current
Transaction Consideration multiplied by a fraction, the numerator of which is
the number of the Total Shares sold, transferred, exchanged, canceled or
disposed of in such Alternative Disposition and the denominator of which is the
total number of the Total Shares. If any contingent payments included in the
determination of Profits ultimately are not paid pursuant to an Alternative
Disposition, then Parent will reimburse
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Stockholder for any amounts paid to Parent hereunder in respect of such
uncollected contingent payments promptly after receipt of written notice of such
nonpayment, unless Stockholder has not used its reasonable efforts to receive
such contingent payments.
(c) Second Transaction. If, after the date of this Agreement, the
amount of consideration to be received by the holders of Company Common Stock in
connection with the Merger should be increased (a "SECOND TRANSACTION"), then,
as may be requested by Parent, Stockholder will either (i) execute and deliver
to Parent such documents or instruments as may be necessary to waive the right
to receive fifty percent (50%) of such increase to the extent that such increase
results in any Profit or (ii) tender and pay, or cause to be tendered and paid,
to Parent, or its designee, in immediately available funds fifty percent (50%)
of the Profit realized from such Second Transaction. As used in this Section
3(c), "PROFIT" will mean an amount equal to the excess, if any, of (y) the
Second Transaction Consideration over (z) the Current Transaction Consideration.
As used in this Agreement, "SECOND TRANSACTION CONSIDERATION" will mean all
cash, securities, settlement or termination amounts, notes or other debt
instruments, and other consideration received or to be received, directly or
indirectly, by Stockholder in respect of the Total Shares in connection with or
as a result of the Second Transaction or any agreements or arrangements
(including, without limitation, any employment agreement (except a bona fide
employment agreement pursuant to which Stockholder is required to devote, and
under which Stockholder in good faith intends to devote, substantially all of
Stockholder's business time and effort to the performance of executive services
for the Company in a manner substantially similar to Stockholder's current
employment arrangements with the Company), consulting agreement, non-competition
agreement, confidentiality agreement, settlement agreement or release agreement)
entered into, directly or indirectly, by Stockholder as a part of or in
connection with the Second Transaction (such amounts to be calculated as of the
date of consummation of such Second Transaction and assuming, for calculation
purposes, Stockholder holds such number of Total Shares as set forth in Part A,
Column 1 of Schedule I attached hereto without regard to the actual beneficial
ownership of such shares).
4. No Ownership Interest. Nothing contained in this Agreement will be
deemed to vest in Parent any direct or indirect ownership or incidents of
ownership of or with respect to the Total Shares. All rights, ownership and
economic benefits of and relating to the Total Shares will remain and belong to
Stockholder, and Parent will have no authority to manage, direct, superintend,
restrict, regulate, govern or administer any of the policies or operations of
Company or exercise any power or authority to direct Stockholder in the voting
of any of the Total Shares, except as otherwise expressly provided herein with
respect to the Subject Shares.
5. Covenants, Representations and Warranties of Stockholder. Stockholder
hereby represents, warrants and covenants to Parent as follows:
(a) Ownership. As of the date of this Agreement, Stockholder is either
(i) the record and Beneficial Owner of, or (ii) the Beneficial Owner but not the
record holder of, the number of issued and outstanding Total Shares set forth in
Part A, Column 1 of Schedule I hereto and the Options, stock appreciation rights
and securities convertible into or exercisable for shares of Company Common
Stock set forth on Part B of Schedule I hereto. As of the date of this
Agreement, the Total Shares set forth in Part A, Column 1 of Schedule I hereto
constitute all of the issued and outstanding shares of Company Common Stock
owned of record or
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Beneficially Owned by Stockholder. Stockholder has the sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Subject Shares, with no material limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal capacity, power
and authority to enter into and perform all of Stockholder's obligations under
this Agreement. This Agreement has been duly and validly executed and delivered
by Stockholder and constitutes a valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
general equitable principles). There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by Stockholder of the transactions contemplated hereby. If
Stockholder is married and any of the Total Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, Stockholder's spouse,
enforceable against such person in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
general equitable principles).
(c) No Conflicts. As of the date of this Agreement, except for filings
under the Exchange Act, if applicable, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Stockholder and
the consummation by Stockholder of the transactions contemplated hereby, except
where the failure to file or obtain such permit, authorization, consent or
approval would not materially interfere with Stockholder's ability to perform
Stockholder's obligations hereunder, and none of the execution and delivery of
this Agreement by Stockholder, the consummation by Stockholder of the
transactions contemplated hereby or compliance by Stockholder with any of the
provisions hereof will (i) conflict with or result in any breach of any
applicable organizational documents applicable to Stockholder, (ii) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Stockholder is a party or by which
Stockholder or any of Stockholder's properties or assets may be bound, (iii)
require any material consent, authorization or approval of any person other than
a governmental entity or (iv) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Stockholder or any of
the Total Shares, in each such case except to the extent that any conflict,
breach, default or violation would not materially interfere with the ability of
Stockholder to perform its obligations hereunder.
(d) No Encumbrances. Except (i) as required by Section 2 and (ii) items
listed in Schedule I, at all times during the term hereof, all of the Subject
Shares will be held by Stockholder, or by a nominee or custodian for the benefit
of Stockholder, or by a family member or Affiliate of Stockholder (subject to
the conditions set forth in clause (f) below) free
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and clear of all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances whatsoever,
except for any liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or other encumbrances that do not
limit or impair Stockholder's ability to perform the obligations under this
Agreement.
(e) No Solicitation. Stockholder will comply with the terms of Section
5.10 of the Merger Agreement, provided, however, that Stockholder will be deemed
to be a Company Representative at all times for purposes of Section 5.10
(regardless of whether Stockholder is in fact a Company Representative at the
relevant time).
(f) Restriction on Transfer, Proxies and Non-Interference. Except as
otherwise contemplated by the Merger Agreement or this Agreement, from and after
the date of this Agreement and ending on the Termination Date, Stockholder will
not, directly or indirectly without the consent of Parent in respect of any
Acquisition Proposal or otherwise: (i) offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Subject Shares, or any interest therein, (ii)
grant any proxies or powers of attorney, deposit any of the Subject Shares into
a voting trust or enter into a voting agreement with respect to any of the
Subject Shares, (iii) enter into any agreement or arrangement providing for any
of the actions described in clause (i) or (ii) above, (iv) take any action that
would reasonably be expected to have the effect of preventing or disabling
Stockholder from performing Stockholder's obligations under this Agreement or
(v) request that Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Subject Shares,
except as otherwise contemplated hereby.
(g) Further Assurances. From time to time, at Parent's reasonable
request and without further consideration, Stockholder will perform such further
acts and execute and deliver such additional documents as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement and the Proxy.
6. Covenants, Representations and Warranties of Parent. Parent hereby
represents, warrants and covenants to Stockholder as follows:
(a) Organization, Standing and Corporate Power. Parent is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, with full corporate power and authority to own its
properties and carry on its business as presently conducted. Parent has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement and to consummate the transactions contemplated hereby.
(b) No Conflicts. As of the date of this Agreement, except for filings
under the Exchange Act, if applicable, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by either Parent and
the consummation by Parent of the transactions contemplated hereby, except
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where the failure to file or obtain such permit, authorization, consent or
approval would not interfere with its ability to perform its obligations
hereunder, and none of the execution and delivery of this Agreement by Parent,
the consummation by Parent of the transactions contemplated hereby or compliance
by Parent with any of the provisions hereof will (i) conflict with or result in
any breach of any applicable organizational documents applicable to Parent, (ii)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Parent is a party or by which
Parent or any of Parent's properties or assets may be bound, (iii) require any
material consent, authorization or approval of any person other than a
governmental entity or (iv) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to Parent or any of
Parent's properties or assets, in each such case except to the extent that any
conflict, breach, default or violation would not interfere with the ability of
Parent to perform its obligations hereunder.
(c) Execution, Delivery and Performance by Parent. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Parent, and Parent has taken all other actions required by
law, its Amended and Restated Certificate of Incorporation and its Bylaws to
consummate the transactions contemplated by this Agreement. This Agreement
constitutes the valid and binding obligations of Parent and is enforceable in
accordance with its terms, except as enforceability may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally.
7. Share Purchases; Recapitalization; Option Exercises.
(a) Total Shares. Stockholder agrees that, for purposes of this
Agreement, the defined term "TOTAL SHARES" will include any shares of Company
Common Stock acquired by Stockholder after the date of this Agreement and before
the Termination Date (i) by purchase or by any other means of acquiring
Beneficial Ownership, and (ii) in connection with any stock dividend and
distribution and any shares into which or for which any or all of the Company
Common Stock (or any class thereof) may be changed or exchanged as may be
appropriate to reflect any stock dividend or distribution, or any change in the
Company Common Stock (or any class thereof) by reason of any split-up,
recapitalization, combination, exchange of shares or the like. All shares of
Company Common Stock included as "TOTAL SHARES" pursuant to this Section 7(a)
will be subject to the terms and conditions of this Agreement applicable to
"Total Shares" without any further action on the part of Stockholder or Parent.
(b) Subject Shares. Stockholder agrees that, for purposes of this
Agreement and the Proxy, the defined term "SUBJECT SHARES" will include any
shares of Company Ordinary Common Stock acquired by Stockholder after the date
of this Agreement and before the Termination Date (i) by purchase or by any
other means of acquiring Beneficial Ownership, and (ii) in connection with any
stock dividend and distribution and any shares into which or for which any or
all of the Company Ordinary Common Stock (or any class thereof) may be changed
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or exchanged as may be appropriate to reflect any stock dividend or
distribution, or any change in the Company Ordinary Common Stock (or any class
thereof) by reason of any split-up, recapitalization, combination, exchange of
shares or the like. All shares of Company Ordinary Common Stock included as
"SUBJECT SHARES" pursuant to this Section 7(b) will be subject to the terms and
conditions of this Agreement and the Proxy without any further action on the
part of Stockholder or Parent.
8. Stockholder Capacity. Stockholder does not make any agreement or
understanding herein in Stockholder's capacity as a director or officer of
Company. Stockholder executes this Agreement solely in Stockholder's capacity as
a record owner and/or Beneficial Owner of the Total Shares and nothing herein
will limit or affect any actions taken by Stockholder or any designee of
Stockholder in Stockholder's capacity as an officer or director of Company or
any of its Subsidiaries in order to comply with his fiduciary obligations as an
officer or director of Company, including, without limitation, participating in
his capacity as an officer or director of Company in any negotiations pursuant
to Section 5.10 of the Merger Agreement.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement.
(b) Amendments. This Agreement may be amended by the parties at any
time by an instrument in writing signed on behalf of each of the parties.
(c) Waiver. The parties may (i) extend the time for the performance of
any of the obligations or other acts of the other parties, (ii) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement or (iii) waive
compliance with any of the agreements or conditions contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver will be
valid only if set forth in an instrument in writing, signed on behalf of each
party hereto. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise will not constitute a waiver of those
rights.
(d) Notices. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be deemed given
if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such address for a
party as will be specified by like notice):
(i) if to Stockholder, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Parent or Merger Sub, to:
Clear Channel Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., P.C.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(e) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction will, 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 in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, such provision will be interpreted to be only so
broad as is enforceable.
(f) Enforcement. Each of the parties hereto recognizes and acknowledges
that a breach by Stockholder of any covenants or agreements contained in this
Agreement will cause Parent to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach Parent will be entitled to
the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity. Any action or claim relating to this
Agreement will be brought in
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any court of the United States located in the State of Delaware or in Delaware
state court, this being in addition to any other remedy to which it is entitled
at law or in equity. In addition, each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of any federal court located in the
State of Delaware or any Delaware state court in the event any dispute arises
out of this Agreement or any of the transactions contemplated by this Agreement,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (iii)
agrees that it will not bring any action or claim relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
federal or state court sitting in the State of Delaware.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity will
be cumulative and not alternative, and the exercise of any thereof by any party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
(h) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and will not be enforceable by, any person or entity who or
which is not a party hereto; provided that, in the event of Stockholder's death,
the benefits and obligations of Stockholder hereunder will inure to
Stockholder's successors and heirs.
(i) Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to any
applicable conflicts of law.
(j) Descriptive Headings. Headings of the sections and subsections of
this Agreement are for convenience of the parties only, and will be given no
substantive or interpretive effect whatsoever.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(l) Trust Funds. If any party hereto should receive any funds that are
to be paid to another party pursuant to the terms of this Agreement, then the
receiving party will hold such funds in trust for the benefit of the party
entitled to receive such funds and will promptly pay such funds to the party
entitled to receive such funds in accordance with this Agreement.
10. Termination. This Agreement will terminate without any further action
on the part of any party hereto on the Termination Date; provided, however, that
if the Merger Agreement is terminated prior to the Effective Time, then each of
Section 1, Section 3, Section 4, Section 5(b), Section 5(c), Section 5(g),
Section 6, Section 7(a), Section 8, Section 9, and this Section 10 will survive
the termination of the Merger Agreement until the earlier of (a) the closing of
an Alternative Disposition or a Second Transaction and the payment of the
amounts owing pursuant to Section 3 and (b) eighteen months (18) following the
termination of the Merger Agreement.
10
11
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.
Parent:
CLEAR CHANNEL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
STOCKHOLDER:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in his individual capacity
12
SCHEDULE I
TOTAL SHARES, SUBJECT SHARES, AND ADDITIONAL SHARES
Part A
COLUMN 1 COLUMN 2
-------- --------
TOTAL SHARES SUBJECT SHARES
COMPANY ORDINARY 9,002,855 9,002,855
COMMON STOCK
COMPANY CLASS B 10,949,299 0
STOCK
TOTAL 19,952,154 9,002,855
Part B
NUMBER OF SHARES OF COMPANY COMMON STOCK
THAT STOCKHOLDER MAY PURCHASE (WHETHER OR
NOT VESTED OR EXERCISABLE) PURSUANT TO ANY
OPTIONS, STOCK APPRECIATION RIGHTS AND
SECURITIES CONVERTIBLE INTO OR EXERCISABLE
FOR ANY SHARES OF COMPANY COMMON STOCK
--------------------------------------------
COMPANY ORDINARY COMMON 0
STOCK
COMPANY CLASS B STOCK 0
TOTAL 0
13
EXHIBIT A
IRREVOCABLE PROXY
The undersigned, a stockholder of The ▇▇▇▇▇▇▇▇ Group, Inc., a Delaware
corporation ("COMPANY"), hereby irrevocably appoints Clear Channel
Communications, Inc., a Texas corporation ("PARENT"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an
executive officer of Parent, and each of them as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to:
(a) the number of shares of common stock, par value $0.01 per share, of
Company ("COMPANY ORDINARY COMMON STOCK") listed on the final page of this
irrevocable proxy;
(b) any shares of Company Ordinary Common Stock acquired by Stockholder
by purchase or by any other means of acquiring Beneficial Ownership (as defined
below), including the conversion of any securities of Company into shares of
Company Ordinary Common Stock, after the date of this Agreement and before the
Termination Date (as defined below); and
(c) any shares of Company Ordinary Common Stock acquired after the date
of this Agreement and before the Termination Date in connection with any stock
dividend and distribution and any shares into which or for which any or all of
the Company Ordinary Common Stock (or any class thereof) listed on the final
page of this irrevocable proxy may be changed or exchanged as may be appropriate
to reflect any stock dividend or distribution, or any change in the Company
Ordinary Common Stock (or any class thereof) by reason of any split-up,
recapitalization, combination, exchange of shares or the like with respect to
such shares of Company Ordinary Common Stock listed on the final page of this
irrevocable proxy;
in each case Beneficially Owned by the undersigned (collectively, the "SHARES"),
with respect to the matters set forth in the second paragraph following this
paragraph, until the earlier of (y) the date on which that certain Agreement and
Plan of Merger, dated of even date herewith, among Parent, CCMM Sub, Inc., a
Delaware corporation, and Company (the "MERGER AGREEMENT") is terminated in
accordance with its terms or (z) the Effective Time (as defined in the Merger
Agreement) (such earlier date, the "TERMINATION DATE"). For purposes of this
irrevocable proxy, "BENEFICIALLY OWN," "BENEFICIAL OWNER" or "BENEFICIAL
OWNERSHIP" with respect to any securities will mean having voting power or
investment power with respect to such securities (as determined pursuant to Rule
13d-3(a) under the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
This irrevocable proxy is irrevocable, is coupled with an interest, is
granted pursuant to the Stockholder Voting and Support Agreement, and is granted
in consideration of Parent entering into the Merger Agreement, and relates to
the matters set forth immediately following this paragraph. Upon the execution
hereof, all prior proxies given by the undersigned with respect to the Shares
are hereby revoked and no subsequent proxies will be given.
The attorneys and proxies named above will be empowered at any time prior
to the Termination Date to vote (or cause to be voted) all of the Shares (or to
provide his written
14
consent thereto), at any annual, special or other meeting of the stockholders of
Company, and at any adjournment or adjournments thereof, or pursuant to any
consent in lieu of a meeting or otherwise:
(x) in favor of the Merger and the approval and adoption of the terms
contemplated by the Merger Agreement and any other actions or agreements
required in furtherance thereof;
(y) 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 Company under the Merger Agreement; and
(z) against any (A) direct or indirect acquisition or purchase of a
business that constitutes 15% or more of the net revenues, net income or the
assets of Company and its Subsidiaries taken as a whole, (B) direct or indirect
acquisition or purchase of 15% or more of any class of equity securities of
Company or any of its Subsidiaries whose business constitutes 15% or more of the
net revenues, net income or assets of Company and its Subsidiaries, taken as a
whole (each, a "MATERIAL SUBSIDIARY"), (C) tender offer or exchange offer that
if consummated would result in any person beneficially owning 15% more of any
class of equity securities of Company or any Material Subsidiary, (D) merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving Company or any Material Subsidiary, other than
the transactions contemplated by this Agreement and (E) to the extent that such
action is reasonably likely to materially impede, interfere with, delay,
postpone or adversely affect in any material respect the Merger and the
transactions contemplated by the Merger Agreement, (1) any change in a majority
of the Board of Directors of Company other than in connection with an annual
meeting of the stockholders of Company with respect to the slate of directors
proposed by the incumbent Board of Directors of Company (in which case
Stockholder agrees to vote for the slate proposed by the incumbent Board of
Directors of Company) or (2) except for such actions as are contemplated by the
Merger Agreement, any material change in Company's corporate structure or
business.
Other than the matter set forth in the immediately preceding paragraph, the
undersigned Stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder will be binding upon the
successors and assigns of the undersigned. THIS PROXY IS IRREVOCABLE.
9,002,855 Number of shares of Company Ordinary Common Stock that are
Beneficially Owned by the undersigned and subject to this
irrevocable proxy pursuant to subsection (a) above.
Dated: October 5, 2001
Signature of Stockholder:
---------------------------------
Name of Stockholder: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇