Exhibit B
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into
as of the 13th day of December, 2002 (the "Effective Date"), by and among MJG
Associates, Inc., a Connecticut corporation, and Xxxxx X. Xxxxxxx (together
the "Advisers") and Xxxx X. Xxxxxxx (the "Proxy Holder").
In consideration of the agreements and mutual covenants set forth
herein, the parties agree as follows:
1. Appointment of Proxy Holder. Each of the Advisers hereby grants to
the Proxy Holder, simultaneously with the execution of this Agreement, its
proxy, with full power of substitution, and grants the Proxy Holder complete
control over all rights to vote or consent (including rights to be present or
absent for quorum purposes) with respect to any and all shares (the "Shares")
of the stock of Xxxx Television, Inc. (the "Company") which either of the
Advisers now or during the term of this Agreement beneficially owns on behalf
of Gabelli Performance Partnership L.P. or Gabelli International Limited
(together the "Stockholders") in accordance with the terms of this Agreement.
2. Irrevocable Proxy.
(a) The irrevocable proxy created hereby shall expire three (3)
years from the date of this Agreement, and throughout such period the
Proxy Holder shall have the exclusive right to vote the Shares or to give
written consents in lieu of voting thereon, subject to any limitation on
the right to vote contained in the certificate of incorporation of the
Company, or other certificate filed pursuant to law, in person or by
proxy, at all meetings of the stockholders of the Company, and in all
proceedings wherein the vote or written consent of stockholders may be
required or authorized by law, subject to the terms and conditions of
this Agreement.
(b) This Agreement shall terminate prior to the date specified in
Paragraph 3(a) above upon receipt of written notice of termination signed
by the Advisers representing that the Advisers' outside communications
counsel has advised that such termination will not result in a violation
of any applicable federal communications laws or the Federal
Communications Commission's rules or regulations. The Proxy Holder may
also, in his sole and absolute discretion, terminate this Agreement on
thirty (30) days notice.
3.Liability. The Proxy Holder shall use his best judgment in voting
the Shares held by the Stockholders and shall not be liable for
the consequence of any vote cast, or consent given by him,
in good faith,
and in the absence of gross negligence or willful
misconduct.
The Advisers agree to indemnify the Proxy Holder against
any and
all claims,cost of defense of claims (including reasonable
attorneys' fees and disbursements), expenses and liability
incurred in connection with the performance of his duties under
this Agreement
except those incurred as a result of the Proxy Holder's own bad faith,
gross negligence or willful misconduct.
4. Termination Procedure. This Agreement shall cease to have any
effect upon its termination, provided that Paragraph 3 hereof shall
survive the termination of this Agreement.
5. Dividends. Notwithstanding anything to the contrary contained
herein, at all times the Stockholders shall be entitled to receive
payments of cash dividends, if any, upon their Shares. If
any dividend in respect of the Shares is paid, in whole or in part,
in stock of the Company having general voting powers, the Proxy Holder
shall likewise have voting power, subject to
the terms of this Agreement, for stock which is received on account of
such dividend.
6. Dissolution of Company. In the event of the dissolution or total
or partial liquidation of the Company, whether voluntary or involuntary,
the Stockholders shall receive the moneys, securities, rights, or property
to which the holders of the capital stock of the Company are entitled.
7. Rights of Proxy Holder.
(a) The Proxy Holder shall have the right, subject to the
provisions set forth in this Agreement, to exercise, in person or by his
nominees or proxies, all of the Advisers' voting rights and powers in
respect of all Shares, and to take part in or consent to any corporate or
stockholders' action of any kind whatsoever. The right to vote shall
include the right to vote for the election of directors, and in favor of
or against any resolution or proposed action of any character whatsoever,
which may be presented at any meeting or require the consent of
stockholders of the Company. Without limiting such general right, it is
understood that such action or proceeding may include, upon terms
satisfactory to the Proxy Holder, or to his nominees or proxies thereto
appointed by him, the mortgaging of, creating a security interest in
and/or pledging of all or any part of the property of the Company; the
lease or sale of all or any part of the property of the Company; the
commencement of voluntary bankruptcy or similar insolvency proceedings by
the Company; the commencement of any business by the Company other than
as stated in its certificate of incorporation in effect on the date
hereof; the amendment of the certificate of incorporation of the Company;
the dissolution of the Company; or the consolidation, merger,
reorganization, or recapitalization of the Company.
(b) In voting the stock held by him hereunder either in person or
by his nominees or proxies, the Proxy Holder shall exercise his best
judgment, subject to Paragraph 3 of this Agreement, to select suitable
directors of the Company, and, in voting upon any matters that may come
before him at any stockholders' meeting, the Proxy Holder shall exercise
like judgment, but he shall not be personally responsible with respect to
any action taken pursuant to his vote so cast in any matter or act
committed or omitted to be done under this Agreement, provided such
commission or omission does not amount to willful misconduct or gross
negligence on his part, and provided also that the Proxy Holder at all
time exercises good faith in such matters.
(c) During the term of this Agreement, the Advisers shall not
attempt to exercise any control over the decisions or actions of the
Proxy Holder with respect to the matters covered by this Agreement,
provided that nothing herein shall prevent the Advisers from providing to
the Proxy Holder such reports, financial data or other information
customarily provided by the Company or others in connection with the
matters set forth in Paragraph 7(a) above.
(d) The Proxy Holder shall be entitled to receiver, as
compensation for his services hereunder, an amount up to Five Thousand
Dollars ($5,000) per year for the first year of the term of this
Agreement and Two Thousand Dollars ($2,000) per year for each and every
year thereafter during which this Agreement is in effect.
(e) The Proxy Holder is expressly authorized to incur and pay all
reasonable charges and other expenses deemed necessary and proper in the
performance of his duties under this Agreement, and the Proxy Holder will
be reimbursed for such charges and expenses.
8. Proxy Holder; Resignation and Succession.
(a) The Proxy Holder (and any Successor Proxy Holder) may at any
time resign on thirty (30) days notice by mailing to the Advisers a
written resignation, to take effect upon the acceptance of the duties
hereunder by a Successor Proxy Holder, which Successor Proxy Holder shall
be an individual or corporation appointed by the Advisers.
(b) The rights, powers, and privileges of the Proxy Holder named
hereunder shall be possessed by the Successor Proxy Holders, with the
same effect as though such successors had originally been parties to this
Agreement.
(c) It is agreed between and among the parties hereto that in the
event of a death or incapacity of Xxxx X. Xxxxxxx, named Proxy Holder,
that the Advisers shall appoint an individual or corporation to serve as
Successor Proxy Holder. All references to "Proxy Holder" throughout this
Agreement shall be deemed to include and mean any Successor Proxy Holder.
Before any party may serve as a Successor Proxy Holder, he or she shall
execute this Agreement reflecting their willingness and obligation to be
bound hereby.
9. Notice.
(a) Any notice to the Advisers hereunder shall be sufficient if
enclosed in a postpaid envelope and sent by registered mail to the
Adviser addressed as follows: MJG Associates, Inc., 000 Xxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx, or to
such other address as the Advisers may designate by notice in writing to
the Proxy Holder.
(b) Any notice to the Proxy Holder hereunder shall be sufficient
if enclosed in a postpaid envelope and sent by registered mail to the
Proxy Holder, addressed to him at such address as may from time to time
be furnished in writing by the Proxy Holder.
10. Severability. Any provision of this Agreement prohibited or
unenforceable under any applicable law of any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, any
suchprohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provisions in any other jurisdiction. Where,
however, the conflicting provisions of any such applicable law may be waived,
they are hereby waived by the parties hereto to the full extent permitted by
law, to the end that this Agreement shall be enforceable as written.
11. Successors. This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns.
12. Modification and Amendment. This Agreement may not be modified or
amended except by a writing signed by each of the parties hereto.
13. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, and such counterparts
shall together constitute but one and the same instrument.
15. Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
16. Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
17. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out
the provisions and purposes of this Agreement and the transactions
contemplated hereby.
18. Entire Agreement. This Agreement represents the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, among the parties with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the Advisers and the Proxy Holder have signed this
Agreement.
Xxxx X. Xxxxxxx, as Proxy Holder
Xxxxx X. Xxxxxxx, individually and
on behalf of MJG Associates, Inc.
