PARENT STOCKHOLDER VOTING AGREEMENT
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PARENT STOCKHOLDER VOTING AGREEMENT, dated as of June 1, 1999 (this
"Agreement"), by and among METRO NETWORKS, INC., a Delaware corporation (the
"Company"), and INFINITY BROADCASTING CORPORATION, a Delaware corporation (the
"Stockholder").
WHEREAS, concurrently herewith, the Company, Copter Acquisition
Corp., a Delaware corporation ("Merger Sub"), and Westwood One, Inc. a Delaware
corporation ("Parent"), are entering into an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used without definition herein having the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, among other things, the Merger Agreement provides for the
merger (the "Merger") of Merger Sub into the Company, and the Share Issuance
pursuant thereto;
WHEREAS, the Stockholder is the record and beneficial owner of the
number of shares ("Shares") of each class of capital stock of Parent entitled to
vote ("Voting Stock") set forth opposite its name in Schedule I hereto;
WHEREAS, approval of the Share Issuance by Parent's stockholders is
required in order to consummate the Merger;
WHEREAS, the Board of Directors of Parent has, prior to the execution
of this Agreement, duly and validly approved and adopted the Merger Agreement
and the Share Issuance, and has resolved and agreed to recommend to its
stockholders that they approve the Share Issuance, and such approval, adoption
and recommendation has not been withdrawn;
WHEREAS, the Stockholder is executing this Agreement (i) as an
inducement to the Company to enter into and execute the Merger Agreement and
(ii) in reliance upon the representations, warranties, agreements and covenants
of the Company set forth in the Merger Agreement; and
WHEREAS, certain holders of shares of the Company capital stock are
concurrently executing the Company Stockholder Voting Agreement agreeing to vote
for the Merger Agreement as an inducement to Parent to enter into and execute
the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. The Stockholder agrees that,
during the term of this Agreement, such Stockholder shall, from time to time, at
any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of Parent, however called, or in connection
with any written consent of the
holders of any of the Voting Stock, in either case, prior to the earlier of the
Effective Time and the termination of this Agreement, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and such Stockholder shall vote or consent (or cause to
be voted or consented), in person or by proxy, all Shares, and any other voting
securities of Parent (whether acquired heretofore or hereafter), that are
beneficially owned by such Stockholder or its wholly-owned Affiliates or as to
which such Stockholder has, directly or indirectly, the right to vote or direct
the voting, in favor of the approval and adoption of the Share Issuance. The
Stockholder agrees, during the period commencing on the date hereof and ending
on the earlier of the Effective Time and the termination of this Agreement, not
to, and not to permit any of its wholly-owned Affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote of Parent, if such
consent or vote by the stockholders of Parent would be inconsistent with or
frustrate the purposes or terms of this Agreement or the Merger Agreement.
In furtherance and not in limitation of the foregoing, the
Stockholder hereby grants to, and appoints, the Company and each of Xxxxxxx X.
Xxxxxxxx and Xxxxx X. Xxxxxxx, in their respective capacities as officers of the
Company, and any individual who shall hereafter succeed to any such officer of
the Company, and any other designee of the Company, each of them individually,
its irrevocable proxy and attorney-in-fact (with full power of substitution) to
vote the Shares as indicated in this Section 1. The Stockholder intends this
proxy to be irrevocable and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to effectuate the
intent of this proxy.
The Stockholder hereby revokes any and all previous proxies with respect to its
Shares or any other voting securities of Parent that may relate to the voting of
its Voting Stock in accordance with the provisions of this Section 1.
Section 2. Exercise of Warrants. Not later than the second
business day immediately prior to the date established by the Parent Board as
the record date (the "Record Date") for the Parent Stockholders Meeting, the
Stockholder shall confer with the Company with respect to the anticipated voting
of shares of Parent Common Stock with respect to the Share Issuance. If the
Company has not received irrevocable written commitments from stockholders or
other evidence satisfactory to the Company that an adequate number of shares of
Parent Common Stock to approve the Share Issuance at the Parent Stockholders
Meeting, the Company shall so advise the Stockholders in writing not later than
the first business day prior to the Record Date and the Stockholder shall, not
later than the Record Date, exercise such number of warrants to acquire Parent
Common Stock equal to the lesser of (a) such number as shall be reasonably
requested by the Company, in its good faith judgment, in order to make it
reasonably likely that the Parent Requisite Vote will be obtained and (b) the
excess of 3 million minus the number of shares of Parent Common Stock acquired
by the Stockholder or its affiliates between the date hereof and the day
immediately preceding the Record Date. The provisions of this Section 2 shall
automatically be of no further force or effect if holders of shares of Parent
Common Stock or Parent Class B Stock enter into one or more voting agreements in
favor of the Company substantially to the effect of this Agreement (other than
this
Section 2) such that the aggregate number of votes represented by such
agreements and this Agreement is adequate to achieve the Parent Requisite Vote.
Section 3. Restriction on Transfer, Proxies and
Non-Interference. Except as contemplated by this Agreement, the Stockholder
agrees not to, directly or indirectly, (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, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of the Shares or any interest therein; (ii)
grant any proxies or powers of attorney, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect, or have the effect of preventing or
disabling the Stockholder from performing the Stockholder's obligations pursuant
to this Agreement or the Company's obligations under the Merger Agreement.
Section 4. Further Assurances. Each party shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of its obligations under this Agreement.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to the Stockholder as follows:
(a) This Agreement has been approved by the Board of
Directors of the Company, representing all necessary corporate action on the
part of the Company for the execution and performance hereof and thereof by the
Company (no action by the stockholders of the Company being required).
(b) This Agreement has been duly executed and delivered by
a duly authorized officer of the Company.
(c) This Agreement constitutes the valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms.
(d) The execution and delivery of this Agreement by the
Company does not violate or breach, and will not give rise to any violation or
breach, of the Company's charter or bylaws, or, except as will not materially
impair its ability to effectuate, carry out or comply with all of the terms of
this Agreement or the Merger Agreement, any Law, Governmental Entity approval or
contract by which the Company or its subsidiaries or their respective assets or
properties may be bound.
Section 6. Representations and Warranties of the
Stockholders. The Stockholder represents and warrants to the Company as follows:
(a) Schedule I sets forth, opposite the Stockholder's name,
the number and type of Shares of which such Stockholder is the record or
beneficial owner and the
number of votes per share that the Stockholder is entitled to with respect to
the Merger Agreement. The Stockholder is the lawful owner of such Shares, free
and clear of all liens, charges, options, rights, encumbrances, stockholders
agreements, voting agreements, agreements to transfer or otherwise dispose of
such Shares and commitments of every kind, other than this Agreement and as
disclosed in Schedule II and has the sole power to vote (or cause to be voted)
the Shares as set forth in this Agreement. Except as set forth on such Schedule
I, neither the Stockholder nor any of its Affiliates owns or holds any rights to
acquire any additional shares of any class of Voting Stock or other securities
of Parent or any interest therein or any voting rights with respect to any
additional shares of Voting Stock or any other securities of Parent.
(b) This Agreement has been duly executed and delivered by
a duly authorized officer of the Stockholder.
(c) This Agreement constitutes the valid and binding
agreement of the Stockholder, enforceable against such Stockholder in accordance
with its terms.
(d) The execution and delivery of this Agreement by the
Stockholder does not violate or breach, and will not give rise to any violation
or breach, of such Stockholder's charter, by-laws, trust instrument or
partnership agreement, to the extent applicable or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any Law, third party consent,
approval, filing, registration or similar requirement of any Governmental Entity
or any agreement or contract by which such Stockholder or its assets or
properties may be bound.
Section 7. Effectiveness and Termination. In the event the
Merger Agreement is terminated in accordance with its terms or immediately upon
the Effective Time, this Agreement shall automatically terminate and be of no
further force or effect. Upon such termination, except for any rights any party
may have in respect of any breach by any other party of its obligations
hereunder, none of the parties hereto shall have any further obligation or
liability hereunder. This Agreement shall continue in full force and effect
despite any amendment or other modification of, or any consent or waiver under,
the Merger Agreement; provided, however, (A) that any amendment by the parties
to the Merger Agreement to (x) the Exchange Ratio or the Merger Consideration
(each as defined in Section 2.1(b) of the Merger Agreement), or (y) Article 7 of
the Merger Agreement entitled "Termination; Amendment; Waiver" or (B) the waiver
on or prior to the Closing Date by Parent of any material condition precedent
set forth in Article 6 of the Merger Agreement, shall require the written
consent of the Stockholder, failing which this Agreement may be terminated in
writing by the Stockholder. In any event, if the Effective Time shall not have
occurred on or before the Termination Date, this Agreement may be terminated in
writing by the Stockholder and it shall be of no further force or effect as to
such Stockholder.
Section 8. Voting Agreement. Stockholder agrees that it
shall enter into a voting agreement with Xxxxx Xxxxxxxxxx at the Effective Time
pursuant to which the Stockholder shall agree, subject to any applicable laws or
regulations of the exchange
where the Company's securities are listed, to vote all shares of capital stock
of the Company entitled to vote at meetings of the stockholders of the Company
for the election of Xxxxx Xxxxxxxxxx'x designees to the Company's Board of
Directors, to the extent such designees have been nominated by the Board of
Directors or a committee thereof, for election at such meeting.
Section 9. Reasonable Best Efforts. To the extent
consistent with applicable law, Stockholder agrees to use its reasonable best
efforts to cooperate with Parent to cause the Share Issuance to be approved by
the stockholders of Parent.
Section 10. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, confirmed facsimile or telex, or by first class mail (postage prepaid,
return receipt requested), to the other party as follows:
if to the Company, to
Metro Networks, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
if to Stockholder, to
Infinity Broadcasting Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
(b) Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
(d) Entire Agreement; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable to
contracts made, executed, delivered and performed wholly within such state and,
in any case, without regard to the principles of conflicts of laws of such
state.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
(h) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of law or otherwise),
without the prior written consent of the other parties hereto and the written
undertaking of the assignee to be bound by the terms of this Agreement, and any
attempt to make any such assignment without such consent shall be null and void.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of the
Company and the Stockholder irrevocably agrees that any legal action or
proceeding with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of the Company and the Stockholder
hereby irrevocably submits with regard to any such action or proceeding for
itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of the Company and the
Stockholder hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to serve process
in accordance with this Section 10(i), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. The parties hereto acknowledge
that irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement may be enforced by a decree of specific performance
issued by a court of competent jurisdiction. Such remedy shall, however, not be
exclusive and, shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
(k) Expenses. Each of the Company and the Stockholder shall
bear its own expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
(l) Action in Stockholder Capacity Only. The Stockholder
makes no agreement or understanding herein as a director or officer of Parent or
in any capacity other than as a stockholder of Parent. The Stockholder signs
solely in its capacity as a record holder and beneficial owner of Shares and
nothing herein shall limit or affect any actions taken by a representative of
such Stockholder in such representative's capacity as an officer or director of
Parent.
[SIGNATURES BEGIN ON NEXT PAGE]
SIGNATURE PAGE TO PARENT STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this
Parent Stockholder Voting Agreement as of the date first above
written.
METRO NETWORKS, INC.
By: /s/
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Name:
Title:
INFINITY BROADCASTING CORPORATION
By: /s/
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Name:
Title:
Schedule I
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Ownership of Voting Stock
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Name and Address Class and Series Number of Shares Number of
of Stockholder of Voting Stock Owned Votes per Share
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Infinity Broadcasting common stock 8,000,0001 1
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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1 Includes 3,000,000 shares issuable upon the exercise of warrants to
purchase Voting Stock if required pursuant to Section 2 of this Agreement.
Schedule II
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Liens on Shares
None
