EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is dated as of February 10, 2009,
between Live Nation, Inc., a Delaware corporation (“ Live
Nation ”) and Liberty USA Holdings, LLC, a Delaware
limited liability company (“ Stockholder
”).
WHEREAS, Live Nation, Ticketmaster
Entertainment, Inc., a Delaware corporation (the “
Company ”) and, from and after its accession to the
Merger Agreement in accordance therewith, a wholly owned subsidiary
of Live Nation (“ Merger Sub ”), have entered
into an Agreement and Plan of Merger, dated as of the date of this
Agreement (as amended pursuant to a Permitted Amendment, the
“ Merger Agreement ”), pursuant to which the
Company will merge with and into Merger Sub (the “
Merger ”);
WHEREAS, as a condition of Live
Nation’s willingness to enter into the Merger Agreement, Live
Nation has required Stockholder to enter into this
Agreement;
WHEREAS, Stockholder and the Company
are parties to the Spinco Assignment and Assumption Agreement
(Ticketmaster), dated as of August 20, 2008 (the “
Spinco Assumption Agreement ”), with
IAC/InterActiveCorp, a Delaware corporation (“ IAC
”) and Liberty Media Corporation, a Delaware corporation
(“ Liberty ”), pursuant to which, among other
things, IAC transferred and assigned to the Company, and the
Company accepted and assumed, certain rights, benefits, liabilities
and obligations applicable to the Company under the Spinco
Agreement, dated May 13, 2008 (the “ Spinco
Agreement ” and, as and to the extent assigned to and
assumed by Ticketmaster pursuant to the Spinco Assumption
Agreement, the “ Ticketmaster Spinco Agreement
”), by and among IAC, Barry Diller, Liberty and the other
parties named therein; and
WHEREAS, Live Nation, the Company,
Stockholder and Liberty are simultaneously with the execution of
this Agreement entering into a Stockholder Agreement regarding the
governance arrangements and other matters following the
consummation of the Merger (the “ Stockholder
Agreement ”).
NOW, THEREFORE, in consideration of
the foregoing and the representations, warranties and covenants
herein and intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions . For
the purposes of this Agreement, capitalized terms used and not
otherwise defined herein shall have the respective meanings
ascribed to them in this Section 1 .
“ Acquisition Proposal
” has the meaning set forth in the Merger
Agreement.
“ Additional Owned
Shares ” means all shares of Company Common Stock and any
other equity securities of the Company, which are beneficially
owned by Stockholder or any of its Affiliates and over which it has
the power to vote and which are acquired after the date hereof and
prior to the record date for any meeting of stockholders of the
Company or solicitation of written consents of the stockholders of
the Company with respect to the Merger Agreement or the
transactions contemplated thereby.
“ Affiliate ” has
the meaning set forth in the Merger Agreement; provided ,
however , that the Company shall be deemed not to be an
Affiliate of Stockholder or any of Stockholder’s
Affiliates.
“ beneficial ownership
” (and related terms such as “beneficially owned”
or “beneficial owner”) has the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended.
“ Company Common Stock
” means the common stock, par value $0.01 per share, of the
Company.
“ Covered Live Nation
Shares ” means all shares of Live Nation Common Stock and
any other equity securities of Live Nation, (x) which are
beneficially owned by Stockholder or any of its Affiliates and
(y) over which Stockholder or its Affiliates has the power to
vote, on the record date for any meeting of stockholders of Live
Nation or solicitation of written consents for the stockholders of
Live Nation with respect to the Live Nation Stockholder Approval
(as defined in the Merger Agreement).
“ Covered Shares
” means the Owned Shares and Additional Owned
Shares.
“ Effective Time
” has the meaning set forth in the Merger
Agreement.
“ Governmental Entity
” has the meaning set forth in the Merger
Agreement.
“ Live Nation Common
Stock ” means the common stock, par value $0.01 per
share, of Live Nation.
“ Owned Shares ”
means all shares of Company Common Stock and any other equity
securities of the Company, which are issued and outstanding and
beneficially owned by Stockholder or any of its Affiliates and over
which Stockholder has the power to vote as of the date
hereof.
“ Permitted Amendment
” means any amendment modification, alteration or change to,
or any waiver or consent under, the Agreement and Plan of Merger in
effect on the date hereof that does not (or the effect of such
action does not) (a) change the Exchange Ratio (as defined in
the Merger Agreement) or the form of consideration payable in the
Merger in a manner adverse to the holders of Company Common Stock,
(b) change the federal income tax treatment of the Merger in a
manner adverse to exchanging holders of Company Common Stock, the
Company or Live Nation, (c) impose supermajority voting
requirements on actions taken following the Effective Time by the
Board of Directors of Live Nation, or (d) change, amend,
modify or alter the Live Nation Certificate (as defined in the
Merger Agreement).
“ Person ” has
the meaning set forth in the Merger Agreement.
“ Transfer ”
means, with respect to a security, the transfer, pledge,
hypothecation, encumbrance, assignment or other similar disposition
(whether by sale, merger, consolidation, liquidation, dissolution,
dividend, distribution or otherwise) of such security or the
beneficial ownership thereof, and each option, agreement,
arrangement or understanding to effect any of the
foregoing.
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2. Voting Agreement
.
(a) Until termination of this
Agreement in accordance with its terms, at any meeting of the
stockholders of the Company, however called, or at any postponement
or adjournment thereof, or in any other circumstance in which the
vote, consent or other approval of the stockholders of the Company
is sought, Stockholder shall (i) appear at each such meeting
if any is held, in person or by proxy or otherwise cause all
Covered Shares to be counted as present thereat for purposes of
calculating a quorum and (ii) vote (or cause to be voted), or
execute and deliver a written consent (or cause a written consent
to be executed and delivered) covering, all Covered Shares
(A) in favor of adopting the Merger Agreement, including the
agreement of merger contained therein, the execution and delivery
by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions reasonably related
thereto submitted to a stockholder vote pursuant to the Merger
Agreement and this Agreement (including, without limitation, any
Company shareholder approval of employee compensation plans or
arrangements or in connection with acquisitions of minority
interests of Company subsidiaries), (B) in favor of any
adjournment or postponement recommended by the Company with respect
to any stockholder meeting with respect to the Merger Agreement and
the Merger, (C) against any Ticketmaster Acquisition Proposal
or any proposal relating to a Ticketmaster Acquisition Proposal,
and (D) against any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale
of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company. Except
as contemplated in Section 8, Stockholder shall not commit or
agree to take any action inconsistent with the foregoing. For
avoidance of doubt, Stockholder shall retain at all times the right
to vote such Stockholder’s Covered Shares in such
Stockholder’s sole discretion and without any other
limitations on those matters other than those set forth in this
Section 2(a) that are at any time or from time to time
presented for consideration to the Company’s stockholders
generally.
(b) Until termination of this
Agreement in accordance with its terms, at any meeting of the
stockholders of Live Nation, however called, or at any postponement
or adjournment thereof, or in any other circumstance in which the
vote, consent or other approval of the stockholders of Live Nation
is sought, Stockholder shall (i) appear at each such meeting
if any is held, in person or by proxy or otherwise cause all
Coverned Live Nation Shares to be counted as present thereat for
purposes of calculating a quorum and (ii) vote (or cause to be
voted), or execute and deliver a written consent (or cause a
written consent to be executed and delivered) covering, all Covered
Live Nation Shares (A) in favor of approval of the issuance of
shares of Live Nation Common Stock in the Merger (the “
Share Issuance ”), (B) in favor of any
adjournment or postponement recommended by Live Nation with respect
to any stockholder meeting seeking approval of the Share Issuance,
(C) against any Live Nation Acquisition Proposal or any
proposal relating to a Live Nation Acquisition Proposal, and
(D) against any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale
of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by Live Nation. For
avoidance of doubt, Stockholder shall retain at all times the right
to vote such Covered Live Nation Shares in such Stockholder’s
sole discretion and without any other limitations on those matters
other than those set forth in this Section 2(b) that are at
any time or from time to time presented for consideration to Live
Nation’s stockholders generally.
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3. No Disposition;
Non-Solicitation .
(a) No Disposition .
Stockholder hereby covenants and agrees that, except as
contemplated by this Agreement and the Merger Agreement,
Stockholder shall not (i) offer to Transfer, Transfer or
consent to any Transfer of any or all of the Covered Shares or any
interest therein without the prior written consent of Live Nation,
(ii) grant any proxy, power of attorney or other authorization
or consent in or with respect to any or all of the Covered Shares
(other than a power of attorney solicited by, or a proxy granted
to, the Company), or (iii) take any other action that would
make any representation or warranty of Stockholder contained herein
untrue or incorrect in any material respect or in any way restrict,
limit or interfere in any material respect with the performance of
Stockholder’s obligations hereunder, except, in each case, as
permitted hereunder; provided , that, notwithstanding the
foregoing or anything herein to the contrary, Stockholder shall be
permitted to effect any Transfer or take any action otherwise
prohibited by this Section 3(a) if or to the extent
such Transfer or action does not constitute a material breach of
the terms and provisions of the Ticketmaster Spinco Agreement
(other than any transfer or disposition pursuant to
Section 5(d)(i)(4)(i) of the Ticketmaster Spinco Agreement);
provided , however , that if the Ticketmaster Spinco
Agreement requires that a New Holder Assignment and Assumption
Agreement or an Affiliate Assignment and Assumption Agreement, as
applicable, be entered into in connection with any transfer or
disposition of Covered Shares, then, as a condition to any such
transfer or disposition, the Stockholder shall require that the
transferee in such transfer or disposition agree to be bound by all
of Stockholder’s obligations under this Agreement as they
relate to the Ticketmaster Common Stock; provided ,
further , that no Hedging Transaction or Stock Lending
Transaction (as those terms are defined in the Ticketmaster Spinco
Agreement) shall be entered into which would prevent Liberty from
voting a number of shares equal to the number of Owned Shares in
accordance with Section 2 of this Agreement. Any attempted
Transfer of Covered Shares or any interest therein in violation of
this Section 3(a) shall be null and void.
(b) Non-Solicitation .
Stockholder hereby agrees that Stockholder shall not, and shall
cause its Affiliates, representatives and agents (including its
investment bankers, attorneys and accountants) (collectively, its
“ Representatives ”) not to, directly or
indirectly, encourage, solicit, initiate or participate in any way
in any discussions or negotiations with, or provide any information
to, or afford any access to the properties, books or records of the
Company or any subsidiaries of the Company to, enter into any
agreement with, or otherwise take any other action to assist or
facilitate, any person (other than Live Nation or Merger Sub or any
of their respective Representatives) relating to any Ticketmaster
Acquisition Proposal. For purposes of this Section 3(b),
Ticketmaster Acquisition Proposal does not include any transaction
in shares of Company Common Stock permitted by the Ticketmaster
Spinco Agreement. Stockholder shall immediately cease any existing
activities, discussions or negotiations conducted heretofore with
respect to any Ticketmaster Acquisition Proposal. Stockholder shall
immediately communicate to Live Nation and the Company the terms of
any Ticketmaster Acquisition Proposal (or any discussion,
negotiation or inquiry with respect thereto) and the identity of
the person making such Ticketmaster Acquisition Proposal
or
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inquiry which it may receive.
Stockholder shall keep Live Nation and the Company fully informed,
on a current basis, of the status and terms of any such
Ticketmaster Acquisition Proposal or inquiry. In furtherance of the
foregoing, Stockholder agrees to comply with the restrictions set
forth in Section 6 of the Ticketmaster Spinco Agreement and
hereby waives any right to make a Competing Offer (as defined in
the Ticketmaster Spinco Agreement) thereunder with respect to the
Merger or the transactions contemplated thereby. Any violation of
the foregoing restrictions by Stockholder or any of its
Representatives shall be deemed to be a material breach of this
Agreement by Stockholder.
4. Addi
