Exhibit 10.1
Execution Version
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
March 8, 2007, by and between Catalina Marketing Corporation, a Delaware
corporation (the "Company"), and the undersigned stockholder ("Stockholder") in
the Company. Certain capitalized terms used in this Agreement are defined in
Section 6 hereof and certain other capitalized terms used in this Agreement that
are not defined herein shall have the meaning given to such terms in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, Stockholder is the holder of record and/or the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of Company Common Stock;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and CMC Holdings LLC, a Delaware limited liability
company ("Parent"), and Catalina Merger Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), are entering into an Agreement
of Merger (the "Merger Agreement") which provides, upon the terms and subject to
the conditions set forth therein, for the merger of Merger Sub with and into the
Company (the "Merger"); and
WHEREAS, as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, the Stockholders have agreed to execute and
deliver this Agreement.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, agree as follows:
1. Agreement to Vote Subject Securities. Prior to the Termination Date,
at every meeting of the stockholders of the Company called with respect to any
of the following, and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Stockholder shall vote or cause to be voted
the Subject Securities: (a) in favor of approval and adoption of (i) the Merger
Agreement including, without limitation, the Merger Consideration, (ii) the
Merger, and (iii) any other matter contemplated under the Merger Agreement or
that could reasonably be expected to facilitate the Merger that is put to a vote
of the stockholders of the Company; (b) in the event that the Company receives a
Superior Offer prior to obtaining the Required Stockholder Vote in connection
with the Merger Agreement and the Merger, in favor of such Superior Offer if
recommended to the holders of the Company Common Stock by action of the Company
Board or a duly constituted committee thereof ("Board Action") and, as
recommended by Board Action, any other matter with respect to such Superior
Offer that is put to a vote of the stockholders of the Company; and (c) other
than in connection with a Superior Offer recommended to the stockholders of the
Company by Board Action, against any other action or agreement that would result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or which would result in
any of the conditions to the consummation of the Merger under the Merger
Agreement not being fulfilled or which would reasonably be expected to prevent,
impede, frustrate, interfere with, delay, postpone or adversely affect the
Merger and the other transactions contemplated by the Merger Agreement.
2. Agreement to Retain Subject Securities.
(a) Restriction on Transfer. During the period from the date of this
Agreement through the Termination Date, the Stockholders shall not, directly or
indirectly, cause or permit any Transfer of any of the Subject Securities to be
effected.
(b) Restriction on Transfer of Voting Rights. During the period from
the date of this Agreement through the Termination Date, the Stockholders shall
ensure that, without the Company's prior written consent: (a) none of the
Subject Securities is deposited into a voting trust; and (b) no proxy (other
than a proxy solicited by the Company Board to vote in accordance with Section 1
hereof (a "Proxy")) is granted, and no voting agreement or similar agreement is
entered into, with respect to any of the Subject Securities.
3. Representations, Warranties and Covenants of the Stockholders. Each
Stockholder, as to itself, hereby represents and warrants to the Company as
follows:
(a) Due Authorization, Etc. All consents, approvals, authorizations and
orders necessary for the execution and delivery by Stockholder of this Agreement
have been obtained, and Stockholder has all legal capacity, full right, power
and authority to enter into this Agreement, and perform Stockholder's
obligations hereunder. This Agreement has been duly executed and delivered by
Stockholder and constitutes a valid and binding agreement of Stockholder
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and subject to
general principles of equity.
(b) No Conflict. The execution and delivery of this Agreement by
Stockholder does not, and the performance of and under this Agreement by
Stockholder will not (i) conflict with or violate any Legal Requirement
applicable to the Subject Securities held by Stockholder (ii) result in, give
rise to or constitute a violation or breach of or a default (or any event which
with notice or lapse of time or both would become a violation, breach or
default) under any of the terms of any understanding, agreement or other
instrument or obligation to which Stockholder is a party or by which Stockholder
or any of the Subject Securities may be bound.
(c) Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
headings "Shares Held of Record" on the signature page hereof; (b) Stockholder
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (c)
Stockholder and its Affiliates do not directly or indirectly Own any shares of
capital stock or other securities of the Company, or any option, warrant or
other right to acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
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(d) Reliance by the Company. Stockholder understands and acknowledges
that the Company is entering into the Merger Agreement in reliance upon the
execution and delivery of this Agreement by Stockholder, the performance by
Stockholder of its obligations hereunder and the compliance by Stockholder with
the terms hereof.
4. Additional Covenants of the Stockholder.
(a) Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional instruments, and
shall (at Stockholder's sole expense) take such further actions, as the Company
may reasonably request for the purpose of carrying out and furthering the intent
of this Agreement.
(b) Appraisal Rights. Stockholder hereby waives any rights of appraisal
or rights to dissent from the Merger or the adoption of the Merger Agreement
that it may have under applicable law and shall not permit any such rights of
appraisal or rights of dissent to be exercised with respect to the Subject
Securities.
5. Certain Definitions. For purposes of this Agreement,
(a) "Company Common Stock" means the common stock, $.01 par value per
share, of the Company.
(b) Each Stockholder is deemed to "Own" or to have acquired "Ownership"
of a security if such Stockholder is the "beneficial owner" of such security
within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended.
(c) "Subject Securities" means: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Stockholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Stockholder acquires Ownership during the period from the date of this
Agreement through the Termination Date.
(d) "Termination Date" means the earliest to occur of the date (i) the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement, (ii) upon which a transaction involving a Superior Offer is
consummated, (iii) the Merger Agreement terminates in accordance with its terms,
provided, however, that no Acquisition Proposal which could reasonably be
expected to lead to a Superior Offer is then outstanding, or (iv) December 28,
2007.
(e) A Person is deemed to have effected a "Transfer" of a security if
such Person directly or indirectly: (i) sells, tenders, assigns, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security to any Person other than the Company;
(ii) enters into an agreement or commitment contemplating the possible sale of,
tender of, assignment of, pledge of, encumbrance of, grant of an option with
respect to, transfer
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of or disposition of such security or any interest therein to any Person other
than the Company; or (iii) reduces such Person's beneficial ownership of,
interest in or risk relating to such security.
6. Miscellaneous.
(a) Assignment; Binding Effect. Except as provided herein, neither this
Agreement nor any of the rights, interests or obligations hereunder may be
assigned or delegated by Stockholder, and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Agreement shall be binding upon Stockholder and its
respective successors and assigns, and shall inure to the benefit of the Company
and its successors and assigns. Nothing in this Agreement is intended to confer
on any Person (other than the Company and its successors and assigns) any rights
or remedies of any nature.
(b) Fees and Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring the cost or expense
whether or not the Merger is consummated.
(c) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached and in the event of any breach or threatened breach by Stockholder of
any covenant or obligation contained in this Agreement, the Company shall be
entitled (in addition to any other remedy that may be available to it, including
monetary damages) to seek (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation, and (b)
an injunction restraining such breach or threatened breach.
(d) Waiver. No failure on the part of the Company to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of the Company in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. The Company shall not be deemed to have waived any
claim available to the Company arising out of this Agreement, or any power,
right, privilege or remedy of the Company under this Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth
in a written instrument duly executed and delivered on behalf of the Company;
and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
(e) Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed duly delivered (i) four Business Days after
being sent by registered or certified mail, return receipt requested, postage
prepaid, (ii) one Business Day after being sent for next Business Day delivery,
fees prepaid, via a reputable nationwide overnight courier service or (iii) on
the date of confirmation of receipt (or the first Business Day following such
receipt if the date of such receipt is not a Business Day) of transmission by
facsimile, in each case to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice:
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if to the Company:
Catalina Marketing Corporation
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: L. Xxxx Xxxxx, Chief Executive Officer
Facsimile No: (000) 000-0000
with a copy (which copy shall not constitute notice) to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile No: (000) 000-0000
if to the Stockholder:
ValueAct Capital Master Fund, L.P.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx, General Counsel
Facsimile No: (000) 000-0000
with a copy to (which copy shall not constitute notice) to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
Facsimile No: (000) 000-0000
(f) Governing Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware (without
regard to conflict of laws principles). Each party to this Agreement hereby
irrevocably agrees that any legal action, suit or proceeding arising out of or
relating to this Agreement shall be brought in federal or state courts of the
State of Delaware and each party hereto agrees not to assert, by way of motion,
as a defense or otherwise, in any such action, suit or proceeding, any claim
that it is not subject personally to the jurisdiction of such court, that the
action, suit or proceeding is brought in an inconvenient forum, that the venue
of the action, suit or proceeding is improper or that this Agreement, or the
subject matter hereof or thereof may not be enforced in or by such court.
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Each party hereto further and irrevocably submits to the jurisdiction of such
court in any action, suit or proceeding.
(g) Counterparts. This Agreement may be executed and delivered
(including by facsimile) in separate counterparts, each of which shall be deemed
an original and all of which together shall constitute one and the same
agreement.
(h) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings between the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon either party unless made in writing and signed by both parties.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date first above written.
CATALINA MARKETING CORPORATION:
By: /s/ L. Xxxx Xxxxx
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Name: L. Xxxx Xxxxx
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Title: Chief Executive Officer
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Address for notices:
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
STOCKHOLDER:
VALUEACT CAPITAL MASTER FUND L.P.
BY: VA PARTNERS, L.L.C., ITS GENERAL PARTNER
BY: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Managing Member
Shares of Company Additional Securities
Common Stock Beneficially Owned
Held of Record
0 7.246.100
