EXHIBIT 10.12
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of this 3rd day of
March, 1997, by and among Platinum Entertainment, Inc. ("Buyer"), Xx. Xxxxxx
Xxxxx, an individual, K-5 Leisure Products, Inc., a Minnesota corporation
("K-5"), and National Development Ltd., a Manitoba corporation ("NDL")
(Xx. Xxxxx, K-5 and NDL individually, a "Shareholder" and collectively, the
"Shareholders").
RECITALS:
WHEREAS, this Voting Agreement is being entered into in connection with
that certain Purchase and Sale Agreement, dated of even date herewith, by and
between Buyer and K-tel International, Inc. ("Seller") (the "Purchase
Agreement"), whereby Buyer is purchasing from Seller all of the issued and
outstanding shares of capital stock of two wholly-owned subsidiaries of
Seller, K-tel International (USA), Inc. and Dominion Entertainment, Inc. (the
"Contemplated Transaction").
WHEREAS, the consummation of the Contemplated Transaction requires that
the requisite shareholders of Seller vote upon and approve the Contemplated
Transaction;
WHEREAS, Xx. Xxxxx is the beneficial owner of certain shares of capital
stock of Seller;
WHEREAS, K-5 and NDL are controlled by Xx. Xxxxx and each of K-5 and NDL
are the beneficial owners of certain shares of capital stock of Seller;
WHEREAS, the Shareholders, own in excess of 70% of the of the issued and
outstanding voting capital stock of Seller as of the date hereof; and
WHEREAS, this Voting Agreement is an inducement to, and requirement of,
Buyer entering into the Purchase Agreement, and the Shareholders have agreed
to document their agreement in their capacity as the beneficial owners of
capital stock of Seller (for Xx. Xxxxx, solely in his capacity as a
shareholder of Seller but not in his capacity as an officer or director of
Seller) to vote the outstanding shares of Seller beneficially owned by each
of them for the Contemplated Transaction.
NOW, THEREFORE, in consideration of the foregoing premises and the
following agreements, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties to this Voting
Agreement hereby agree as follows:
I. VOTING FOR THE CONTEMPLATED TRANSACTION
To facilitate the execution and delivery of the Purchase Agreement and
satisfy the condition thereunder that the requisite shareholders of Seller
duly approve the Contemplated Transaction, each of the Shareholders agree on
behalf of themselves and any person to whom any of them transfer any shares
of Voting Stock (as defined herein), during the term hereof, to vote any and
all shares of Voting Stock beneficially owned by them and any and all
outstanding shares of Voting Stock over which each of them has voting control
in favor of the Purchase Agreement and the Contemplated Transaction at the
meeting of Seller's shareholders to consider approval of the Contemplated
Transaction. In the event that such action is proposed in the form of a
written consent thereto, the Shareholders shall execute any consent form
provided for such purpose to approve the Contemplated Transaction. To
facilitate the execution and delivery of the Purchase Agreement and satisfy
the condition thereunder that the requisite shareholders of Seller duly
approve the Contemplated Transaction the Shareholders agree and confirm that,
in connection with the Contemplated Transaction, none of them shall demand an
appraisal of the shares of Voting Stock beneficially owned by each of them in
connection with the Contemplated Transaction in accordance with Section
302A.471 and 302A.473 of the Minnesota Business Corporation Act or any
applicable Canadian corporation law. As used in this Agreement, the term
"Voting Stock" means the voting stock or other securities of any class,
classes or series of the Seller, the holders of which are entitled to vote on
the Contemplated Transaction and the Purchase Agreement.
II. REPRESENTATIONS, WARRANTIES AND COVENANTS
1. REPRESENTATIONS AND WARRANTIES. Each Shareholder severally,
and not jointly and severally, represents and warrants to Buyer that:
a. the execution, delivery and performance of this Voting
Agreement has been duly authorized by all necessary action of the Shareholder
and constitutes the valid and binding obligation of such Shareholder,
enforceable in accordance with the terms hereof except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies;
b. the Shareholder has not granted and is not a party to any
proxy, voting trust or other agreement which is inconsistent with, conflicts
with or violates the provisions of this Voting Agreement; and
c. the execution, delivery and performance of this Voting
Agreement will not conflict with or result in the breach or violation of any
of the terms or conditions of, or constitute (or with notice or lapse of time
or both, would constitute) a default under, (i) its organizational documents
to the extent applicable (ii) any instrument, contract or other agreement by
or to which he is a party or his assets are bound or subject; (iii) any
statute or regulation, order, judgment or decree of any court or governmental
or regulatory body; or (iv) any license, permit, order or approval of any
governmental or regulatory body. No approval or consent of any foreign,
Federal, state, county, local or other governmental or regulatory body or
court and no approval or consent of any other person is required in
connection with the execution, delivery or performance of this Voting
Agreement by him or it as the case may be.
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2. COVENANTS. Each Shareholder severally, and not jointly,
covenants that he or it as the case may be:
a. shall execute such documents and other papers and perform
such further acts as may be reasonably required or desirable to carry out the
provisions of this Voting Agreement;
b. shall not grant any proxy or become party to any voting
trust or other agreement which is inconsistent with, conflicts with or
violates the provisions of this Voting Agreement during the term hereof;
c. shall not during the term hereof sell, transfer, assign,
pledge or otherwise dispose of any interest in any Voting Stock unless and
until the person or entity to whom such security is to be transferred shall
have executed a written agreement, substantially in the form of this Voting
Agreement, pursuant to which such person becomes a party to this Voting
Agreement and agrees to be bound by all the provisions hereof as if such
person were an original party to this Voting Agreement; and
d. shall not and shall not authorize or permit any of his or
its as the case may be, financial advisors, attorneys, accountants or other
representatives retained by him or it as the case may be, (for Xx. Xxxxx,
solely in his capacity as a shareholder of Seller but not in his capacity as
an officer or director of Seller) to solicit, initiate or encourage
(including by way of furnishing information), or take any other action to
facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any tender or exchange offer, proposal
for a merger, consolidation or other business combination involving the
Subsidiaries or the Business (as such terms are defined in the Purchase
Agreement), or any proposal or offer to acquire in any manner a material
equity interest in, or a material portion of the assets of, the Subsidiaries
or the Business, other than the transactions contemplated by the Purchase
Agreement or agree to or endorse any such proposal, or engage in any
negotiations or discussions with any person relating to any such proposal.
The Shareholders shall promptly advise Buyer orally and in writing of any
inquiries regarding, or offers of, any such proposal.
III. MISCELLANEOUS
a. TRANSFEREES BOUND. This Voting Agreement shall bind and
inure to the benefit of the successors, heirs, personal representatives,
transferees and assigns of the parties hereto.
b. TERMINATION OF VOTING AGREEMENT. This Voting Agreement
shall terminate only upon the first to occur of the following events:
(i) the closing of the Contemplated Transaction; or
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(ii) the termination of the Purchase Agreement, in
accordance with the terms contained therein.
c. ENTIRE AGREEMENT. This Voting Agreement constitutes the
entire agreement of, and supersedes any prior agreement among, the
undersigned with respect to the subject matter hereof.
d. AMENDMENTS. This Voting Agreement may be amended, or any
provision hereof waived, only if approved by the written consent of all of
the parties hereto.
e. REMEDIES FOR BREACH. It is expressly understood that the
equitable remedies of specific performance and injunction shall be available
for the enforcement of the covenants and agreements herein, and that the
availability of these equitable remedies shall not be deemed to limit any
other right or remedy to which any party to this Voting Agreement otherwise
would be entitled.
f. NOTICES. Any notice permitted or required hereunder
shall be in writing and shall be given by personal delivery or by deposit in
the U.S. registered or certified mail, return receipt requested, addressed,
in the case of the Buyer, to its President, at Buyer's principal place of
business in the State of Illinois, and, in the case of the Shareholders, to
the last address reflected on the records of Seller, or to such other address
as any party may designate by written notice to the others in accordance with
this subsection.
g. WAIVERS. No waiver of any provision of this Voting
Agreement shall be implied, and no express waiver shall be valid, unless in
writing and signed by the party to be charged. No waiver of any breach of
any of the terms, provisions or conditions of this Voting Agreement shall be
construed as, or held to be a waiver of, any other breach or a waiver of,
acquiescence in, or consent to, any further or succeeding breach hereof.
h. SEVERABILITY. If any provision of this Voting Agreement
is determined to be invalid or unenforceable, the remaining provisions of
this Voting Agreement shall not be affected thereby and shall be binding upon
the parties.
i. GOVERNING LAW. This Voting Agreement shall be construed
and enforced, and all questions concerning compliance by any person with its
terms shall be determined, under the laws of the State of Delaware, without
regard to principles of conflicts of law.
j. COUNTERPARTS. This Voting Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
k. HEADINGS. The headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Voting Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be signed as of the date first written above.
BUYER:
PLATINUM ENTERTAINMENT, INC.
By: /s/ Xxxxxx Xxxxxxx
___________________________________
Its: COO
__________________________________
SHAREHOLDERS:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, individually
K-5 LEISURE PRODUCTS, INC.
By: /s/ Xxxxxx Xxxxx
___________________________________
Its: Chairman
__________________________________
NATIONAL DEVELOPMENT LTD.
By: /s/ Xxxxxx Xxxxx
___________________________________
Its: Chairman
__________________________________
