Exhibit 99.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 13, 2002 (this "Agreement"), by
and among Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, and Olive Enterprises, Inc., a
Pennsylvania corporation ("Olive") (collectively the "Principal Stockholders"),
stockholders of xxxx xxxxx productions, inc., a Delaware corporation (the
"Company"), and DCPI Investco, Inc., a Delaware corporation ("Grantee").
WHEREAS, Grantee, DCPI Mergerco, Inc., a Delaware corporation and a
wholly-owned subsidiary of Grantee ("Merger Sub"), Capital Communications CDPQ
Inc., a Quebec corporation ("Capital Communications"), and the Company have
entered into an Agreement and Plan of Merger, dated as of the date hereof
(including all amendments thereto, the "Merger Agreement"), providing for, among
other things, the merger of Merger Sub with and into the Company with the
Company continuing as the surviving corporation (the "Merger");
WHEREAS, as of the date hereof, the Principal Stockholders
beneficially own or exercise sole voting power over (i) 818,605 shares of Class
A Common Stock, par value $0.01 per share of the Company (the "Class A Common
Stock") and (ii) 6,309,142 shares of the Common Stock, par value $0.01 per share
of the Company (the "Common Stock", and together with the Class A Common Stock,
the "Capital Stock"), which are owned of record or beneficially by the Principal
Stockholders as of the date hereof (the "Shares") (set forth on Schedule 1
attached hereto);
WHEREAS, as a condition and inducement to Grantee's execution of the
Merger Agreement, Grantee has requested that the Principal Stockholders agree to
enter into this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, and intending to be legally bound hereby, the Principal
Stockholders and Grantee agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
2. Voting of Shares; Proxy.
(a) Agreement to Vote. The Principal Stockholders agree so
long as the Merger Agreement has not been terminated in accordance with its
terms:
(i) to vote the Shares on all matters regarding the
Merger and the transactions contemplated thereby or any alternate
Acquisition Proposal as to which the Principal Stockholders are
entitled to vote at a meeting of the stockholders of the Company,
in the manner
specified in writing by Grantee (which notice shall be delivered
on or prior to the date on which such votes are to be cast),
which manner shall be determined in Grantee's absolute, sole and
binding discretion; and
(ii) to express consent or dissent to corporate action
in writing without a meeting on all the Shares for all matters
regarding the Merger and the transactions contemplated thereby or
any alternate Acquisition Proposal to which shareholders are
allowed to express such consent or dissent without a meeting, in
the manner specified in writing by Grantee (which notice shall be
delivered on or prior to the date on which such votes, consents
or dissents are to be cast), which manner shall be determined in
Grantee's absolute, sole and binding discretion.
(b) Proxy. Each of the Principal Stockholders hereby
irrevocably grants to and appoints Xxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx or
either of them in their respective capacities as officers of Grantee, with
full power of substitution (such individuals and their substitutes each
being referred to herein as the "Proxy"), as attorneys and proxies to vote
all Shares on all matters regarding the Merger and the transactions
contemplated thereby or any alternate Acquisition Proposal as to which the
Principal Stockholders are entitled to vote at a meeting of all of the
stockholders of the Company, or to which the Principal Stockholders are
entitled to express consent or dissent to corporate action in writing
without a meeting, in the Proxy's absolute, sole and binding discretion.
The Principal Stockholders agree that the Proxy may, in the Principal
Stockholders names and stead, (i) attend any annual or special meeting of
the stockholders of the Company and vote all Shares on all matters
regarding the Merger and the transactions contemplated thereby or any
alternate Acquisition Proposal at any such annual or special meeting, and
(ii) execute with respect to all Shares any written consent to, or dissent
from, corporate action respecting any matter regarding the Merger and the
transactions contemplated thereby or any alternate Acquisition Proposal to
which the stockholders of the Company are entitled to express such consent
or dissent without a meeting. With respect to any matter regarding the
Merger and the transactions contemplated thereby or any alternate
Acquisition Proposal, the Principal Stockholders agree to refrain from (a)
voting at any annual or special meeting of the stockholders of the Company,
(b) executing any written consent in lieu of a meeting of the stockholders
of the Company, (c) exercising any rights of dissent with respect to the
Shares, and (d) granting any proxy or authorization to any person with
respect to the voting of the Shares, except pursuant to this Agreement, or
taking any action contrary to or in any manner inconsistent with the terms
of this Agreement. The Principal Stockholders agree that this grant of
proxy pursuant to this Section 2(b) is irrevocable and coupled with an
interest and agrees that the persons designated as the Proxy pursuant
hereto may at any time name any other person who is an officer of Grantee
as a substituted Proxy
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hereunder to act pursuant hereto, either as to a specific matter or as to
all matters. The Principal Stockholders further agree to execute all
additional writings, consents and authorizations as may be reasonably
requested by the Proxy in writing to evidence the powers granted to the
Proxy hereby or to enable the Proxy to exercise those powers. The Principal
Stockholders hereby revoke any proxy previously granted by them with
respect to the Shares.
The Principal Stockholders affirm that the grant of proxy set
forth in this Section 2(b) is given in connection with the execution of the
Merger Agreement, and that such proxy is given to secure the performance of
the duties of the Principal Stockholders under this Agreement.
3. Representations and Warranties of the Principal Stockholders.
The Principal Stockholders hereby severally represent and warrant to
Grantee as follows:
(a) Ownership. Collectively, the Principal Stockholders
beneficially own 818,605 Shares of Class A Common Stock and 6,309,142
Shares of Common Stock (collectively, the "Owned Shares") free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever except
as otherwise provided on Schedule 3(a) attached hereto. Other than the
Owned Shares, the Principal stockholders do not (directly or indirectly
through affiliates, or otherwise) own, or have an ownership interest in,
(i) any shares of Capital Stock, (ii) any options, warrants, rights or
other securities convertible into or exercisable for shares of Capital
Stock, (iii) any other capital stock or other voting securities of the
Company or any of its Subsidiaries, (iv) any other options, warrants,
rights or other securities of the Company convertible into or exchangeable
into shares of capital stock or securities of the Company or any of its
Subsidiaries, or (v) any equity equivalent interests in the ownership or
earnings of the Company or its Subsidiaries or other similar rights.
(b) Due Authorization. Each of the Principal Stockholders
has the necessary capacity, or in the case of Olive, power to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. There are no restrictions on any voting rights or rights of
disposition with respect to the Owned Shares except as otherwise set forth
on Schedule 3(b) attached hereto. Assuming this Agreement has been duly and
validly authorized, executed and delivered by Grantee, this Agreement
constitutes a valid and binding agreement of each of the Principal
Stockholders, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership, or
similar laws relating to, or affecting generally the enforcement of
creditor's rights and remedies or by other equitable principles of general
application.
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(c) No Conflicts. Except as set forth on Schedule 3(c)
attached hereto, neither the execution and delivery of this Agreement nor
the consummation by the Principal Stockholders of the transactions
contemplated hereby will conflict with or constitute a violation of or
default under any material contract, commitment, agreement, arrangement or
restriction of any kind to which any of the Principal Stockholders is a
party or is bound.
4. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to the Principal Stockholders as follows:
(a) Due Authorization. Grantee has the necessary corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been duly
authorized by all necessary corporate action on the part of Grantee and has
been duly executed by a duly authorized officer of Grantee. Assuming this
Agreement has been duly and validly executed and delivered by the Principal
Stockholders, this Agreement constitutes a valid and binding agreement of
Grantee, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation, conservatorship, receivership, or similar laws
relating to, or affecting generally the enforcement of creditor's rights
and remedies or by other equitable principles of general application.
(b) No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation by the Grantee of the transactions
contemplated hereby will conflict with or constitute a violation of or
default under any material contract, commitment, agreement, arrangement or
restriction of any kind to which the Grantee is a party or is bound.
5. Termination. This Agreement and Proxy shall terminate
immediately upon the earlier of (the "Termination Date") (i) the Effective
Time of the Merger or (ii) the date of termination of the Merger Agreement
in accordance with its terms.
6. Transfer of the Shares. Prior to the Termination Date, the
Principal Stockholders shall not: (i) transfer, sell, gift-over, pledge or
otherwise dispose of, or consent to any of the foregoing ("Transfer"), with
regard to any or all of the Owned Shares or any interest therein (other
than a Transfer to Grantee as contemplated by the Subscription Agreement,
dated as of February 13, 2002, by and among Grantee and its stockholders);
(ii) enter into any contract, option or other agreement or understanding
with respect to any Transfer of the Shares; (iii) grant any proxy,
power-of-attorney or other authorization or consent with respect to any of
the Shares; (iv) deposit any of the Shares into a voting trust, or enter
into a voting agreement or arrangement with respect to any of the Shares;
or (v) except in fulfillment of their fiduciary obligations as directors of
the Company, take any other action that would in any way restrict, limit or
interfere
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with the performance of the Principal Stockholders' obligations hereunder
or the transactions contemplated hereby.
7. No Solicitation. Except as provided below, the Principal
Stockholders solely in their capacities as stockholders of the Company, and
not in any capacity as a director of the Company will not and will cause
(to the extent they can control the actions of such parties) their
officers, directors, employees, representatives and other agents, including
investment bankers, attorneys and accountants, not to, directly or
indirectly, encourage, solicit, participate in or initiate (including by
way of furnishing or disclosing non-public information) or knowingly take
any action designed to facilitate any discussions, inquiries, negotiations
or the making of any proposals with respect to or concerning any merger,
consolidation, share acquisition, asset purchase, share exchange, business
combination, tender offer, exchange offer or similar transaction involving
the acquisition of all or a substantial portion of the assets of the
Company and its Subsidiaries, taken as a whole, or a significant equity
interest in (including by way of tender offer), or a recapitalization or
restructuring of, the Company (any of those proposed transactions being an
"Acquisition Proposal"). Upon execution of this Agreement, the Principal
Stockholders will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal. The Principal Stockholders will promptly notify the
Grantee of the existence of any proposal (and the identity of the Person
making it), discussion, negotiation or inquiry received by the Principal
Stockholders or any of their representatives relating to any Acquisition
Proposal (including, without limitation, the terms and conditions thereof)
within 48 hours of such receipt. Notwithstanding the foregoing, if the
Company pursuant to Section 5.3 of the Merger Agreement is permitted to
participate in negotiations or discussions with, and otherwise communicate
with, or furnish information to, a third party, then the Principal
Stockholders may also participate in negotiations or discussions with, or
furnish information to, such third party, to the same extent, but subject
to the same limitations, as the Company.
8. Excess Profits.
(a) If the Merger Agreement is terminated and a Termination
Fee is paid or payable to Grantee, then the Principal Stockholders hereby
agree to pay to Grantee an amount (the "Excess Profits") equal to fifty
percent (50%) of the product of (i) the amount, if any, by which the Net
Proceeds (as defined below) per Share from any sale, transfer or other
disposition of their Shares that is either (x) received within six (6)
months of the Termination Date, other than from dispositions of Shares not
relating to an Acquisition Proposal, or (y) received at any time following
the Termination Date pursuant to a written agreement solely with respect to
an Acquisition Proposal entered into within six (6) months following the
Termination Date (either (x) or (y), a "Non-Merger Sale") exceeds $12.50
per Share provided that no Excess Profits shall be paid or payable in
respect of any Net Proceeds in
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excess of $14.00 per Share; and (ii) the number of Shares so sold,
transferred or otherwise disposed of by the Principal Stockholders in any
Non-Merger Sale. For purposes of this Agreement, the term "Net Proceeds"
shall mean the aggregate amount (before taxes) of the net cash amounts
(including any dividends or other distributions received following the
Termination Date) and the fair market value (the "Fair Market Value") (as
determined below) of all forms (including any non-cash dividends or
distributions received following the Termination Date) of non-cash
consideration (the "Non-Cash Consideration") received or to be received by
the Principal Stockholders in a Non-Merger Sale based upon the Shares
arising out of a Superior Proposal, other than any investment at fair
market value for securities that the Principal Stockholders may obtain in
the acquired entity; provided, however, that Net Proceeds shall also
include the present value (without any CPI adjustment) of any aggregate
employment compensation (including consulting or similar fees but
specifically excluding any and all talent fees customarily paid) paid or
payable to Xxxxxxx X. Xxxxx in excess of one hundred fifteen percent (115%)
of the present value of the aggregate employment compensation payable to
Xxxxxxx X. Xxxxx (determined on an annual basis) pursuant to that
Employment Agreement between Xxxxxxx X. Xxxxx and the Company, dated as of
the date of this Agreement.
(b) The parties shall negotiate in good faith to determine
the Fair Market Value of the Non-Cash Consideration. If the parties cannot
agree on the Fair Market Value of the Non-Cash Consideration within fifteen
(15) days following receipt of the Non-Cash Consideration by the Principal
Stockholders, then no later than ten (10) days following the expiration of
the 15-day period referred to above, Grantee and the Principal Stockholders
shall request that the Fair Market Value of the Non-Cash Consideration be
finally determined within twenty (20) days by (i) a nationally recognized
investment banking firm reasonably acceptable to both Grantee and the
Principal Stockholders or (ii) if one such firm cannot be agreed upon, then
by a mutually acceptable nationally recognized investment banking firm
selected by two nationally recognized investment banking firms, one such
firm selected by Grantee and the other such firm selected by the Principal
Stockholders. If the Fair Market Value is determined by such nationally
recognized investment banking firm as described above, and only in the
event such Fair Market Value is greater than the value ascribed to such
Non-Cash Consideration by the Principal Stockholders during the fifteen
(15) day period referred to above, then the Principal Stockholders shall
add to the amount to be paid to Grantee in respect of such Non-Cash
Consideration interest at the rate of seven percent (7%) per annum on such
amount for the period beginning the 16th day following receipt of the
Non-Cash Consideration and ending on the date the payment is made to
Grantee in respect of such Non-Cash Consideration. Notwithstanding the
foregoing, if the Non-Cash Consideration consists of shares in a company
that is traded on the New York Stock Exchange or the NASDAQ National Market
System or other
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similar stock exchange or over-the-counter market, and such company has a
total market capitalization of at least US $100 million, then the Fair
Market Value per each share shall equal the average closing price per share
on such exchange or over the counter market on the ten trading days ending
immediately prior to the date of receipt of the Non-Cash Consideration by
the Principal Stockholders.
(c) The Principal Stockholders shall make the payment in
accordance with this Section 8 together with any interest, if applicable,
no later than four (4) Business Days following receipt of cash from a
Non-Merger Sale, or with respect to Non-Cash Consideration received in a
Non-Merger Sale, no later than four (4) Business Days following the
determination of the Fair Market Value of the Non-Cash Consideration
pursuant to the above-described procedures.
9. Miscellaneous.
(a) Expenses. Each of the parties hereto shall bear and pay
all costs and expenses incurred by such party or on its behalf in
connection with the transactions contemplated hereunder, including, without
limitation, the fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) Waiver and Amendment. Any provision of this Agreement
may be waived at any time by the party that is entitled to the benefits of
such provision, any such waiver to be evidenced in writing. This Agreement
may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by all of the
parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary. This
Agreement (a) constitutes the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to such subject matter and (b) is not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
(d) Severability. If any provision of this Agreement or the
application of such provision to any person or circumstances shall be held
invalid by a court of competent jurisdiction, the portion of such provision
which is not held invalid and the other provisions hereof shall remain
enforceable and shall not be affected and the application of such provision
to persons or circumstances other than the party as to which it is held
invalid shall not be affected.
(e) 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 that would defer to the substantive laws of another
jurisdiction).
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(f) 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.
(g) Notices. All notices, demands, consents, requests,
instructions and other communications to be given or delivered or permitted
under or by reason of the provisions of this Agreement, or in connection
with the transactions contemplated hereby shall be in writing and shall be
deemed to be delivered and received by the intended recipient as follows:
(a) if personally delivered, on the Business Day of such delivery (as
evidenced by the receipt of the personal delivery service); (b) if mailed
by certified or registered mail return receipt requested, four (4) Business
Days after the aforesaid mailing; (c) if delivered by overnight courier
(with all charges having been prepaid), on the second Business Day of such
delivery (as evidenced by the receipt of the overnight courier service of
recognized standing); or (d) if delivered by facsimile transmission, on the
Business Day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding Business Day
(as evidenced by the printed confirmation of delivery generated by the
sending party's telecopier machine). If any notice, demand, consent,
request, instruction or other communication cannot be delivered because of
a changed address of which no notice was given (in accordance with this
Section 8), or the refusal to accept same, the notice, demand consent,
request, instruction or other communication shall be deemed received on the
Business Day the notice is sent (as evidenced by a sworn affidavit of the
sender). All such notices, demands, consents, requests, instructions and
other communications will be sent to the following addresses or facsimile
numbers as applicable:
If to the Principal Stockholders:
Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, and
Olive Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy of all notices and communications
concurrently sent to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
and
0
Xxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to the Grantee:
DCPI Investco, Inc.
c/o Mosaic Media Group
0000 Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy of all notices and communications
concurrently sent to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and
Stikeman Elliott
Barristers & Solicitors
40th Floor
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxxxxx, Xxxxxx
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may specify by notice given to the
other party in accordance with this Section 9(g).
(h) Counterparts. This Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
(i) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written
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consent of the other party. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties hereto and their respective successors, permitted assigns,
heirs, executors, administrators and other legal representatives.
(j) Further Assurances. The Principal Stockholders and
Grantee shall execute and deliver all other documents and instruments and
take all other action that may be requested by the other as being necessary
to provide the rights and benefits contemplated by this Agreement.
(k) Specific Performance. The parties acknowledge that it
would be impossible to fix money damages for violations of this Agreement
and that such violations will cause irreparable injury for which adequate
remedy at law is not available and, therefore, this Agreement must be
enforced by specific performance or injunctive relief. The parties hereto
agree that any party may, in its sole discretion, apply to any court of
competent jurisdiction for specific performance or injunctive or such other
relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection or defense to the
imposition of such relief. Nothing herein shall be construed to prohibit
any party from bringing any action for damages in addition to an action for
specific performance or an injunction for a breach of this Agreement.
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IN WITNESS WHEREOF, the Principal Stockholders and Grantee have caused
this Voting Agreement to be signed by themselves or their respective officers
thereunto duly authorized, all as of the day and year first written above.
DCPI INVESTCO, INC.
By:/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
------------------------------ ------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxx
Title: President Title: Vice President
Date: February 13, 2002 Date: February 13, 2002
------------------------- -------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------
Date: February 13, 2002
---------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
--------------------------
Date: February 13, 2002
---------------------
OLIVE ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
Date: February 13, 2002
---------------------
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