VOTING AGREEMENT
VOTING AGREEMENT, dated as of June __, 1997 (this "Agreement"), by and
among International Post Limited, a Delaware corporation ("IPL"), Video
Services Corporation, a New Jersey corporation ("Video"), and the stockholders
of IPL and/or Video who are signatories hereto (the "Stockholders").
R E C I T A L S:
- - - - - - - -
WHEREAS, IPL, Video and all of the stockholders of Video have entered
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), relating to the merger (the "Merger") of IPL and Video;
WHEREAS, Video and the Stockholders beneficially own in the aggregate
3,106,201 shares of the common stock, par value $.01 per share, of IPL (the
"IPL Common Stock"), representing approximately 50% of the currently
outstanding shares of IPL Common Stock; and
WHEREAS, in order to induce each of IPL, Video and the stockholders of
Video to enter into the Merger Agreement, the parties hereto have agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Voting. Each of Video and the Stockholders agrees to vote all of
his/its shares of IPL Common Stock for the approval of the Merger Agreement (in
the form executed as of the date hereof, with such changes thereto as the
parties hereto may agree prior to such changes), and the transactions
contemplated therein (including the issuance of an aggregate of 7,011,349
shares of IPL Common Stock to Video's stockholders in exchange for their shares
of Video's Common Stock, plus an additional 212,096 shares of IPL Common Stock
which will replace an equal number of shares of IPL Common Stock owned by Video
which will be cancelled upon the Merger, and amendments to IPL's Certificate of
Incorporation changing its corporate name and increasing the number of
authorized shares of IPL Common Stock), and of the 1997 Long Term Incentive
Plan.
2. Term. This Agreement shall terminate on October 15, 1997, or upon
the earlier termination of the Merger Agreement in accordance with its terms.
3. Representations, Warranties and Covenants.
(a) Each of Video and the Stockholders hereby, severally and not
jointly, represents and warrants as follows:
(i) Such stockholder is the beneficial owner of the shares
of IPL Common Stock set forth on Schedule A hereto, free and clear of all
liens, charges and encumbrances whatsoever.
(ii) Such stockholder has all necessary power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such stockholder. This Agreement has
been duly executed and delivered by such stockholder and constitutes the legal,
valid and binding obligation of such stockholder, enforceable against such
stockholder in accordance with its terms, except as may be limited by
bankruptcy, reorganization, moratorium, fraudulent conveyance and insolvency
laws and by other laws affecting the rights of creditors generally and except
as may be limited by the availability of equitable remedies.
(iii) No consent, approval, order or authorization of any
third party (including any federal, state or local governmental authority) is
required by or with respect to such stockholder to validly execute and deliver
this Agreement and to consummate the transactions contemplated hereby.
(b) Each of Video and the Stockholders agrees that, until this
Agreement has been terminated, such stockholder will not sell, transfer, assign
or otherwise dispose of any of his/its shares of IPL Common Stock, unless the
proposed transferee of such shares agrees to become a signatory to this
Agreement.
4. Registration Rights Agreement. The parties hereto agree and
acknowledge that as a result of the acquisition by The Equitable Life Assurance
Society of the United States and Equitable Deal Flow Fund, L.P. (collectively,
"Equitable") of an aggregate of 2,562,105 shares of IPL Common Stock from MTE
Holdings, Inc. ("Holdings"), Equitable is entitled to exercise, and shall be
afforded, all of the rights and privileges granted to Holdings under that
certain Registration Rights Agreement (the "Registration Rights Agreement")
among IPL, Holdings, Video, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx,
Xxxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx with respect to such shares in
Holdings' place and stead. The parties hereto further agree and acknowledge
that, except as set forth herein, the Registration Rights Agreement shall
remain in full force and effect.
5. Tag-Along Rights Agreement. Each of the parties hereto agree and
acknowledge that, simultaneously with the closing of the transactions
contemplated by the Merger Agreement, it will execute and deliver the Tag-Along
Rights Agreement, substantially in the form attached hereto as Exhibit A, with
such changes thereto as the parties may agree.
6. Further Assurances. Each party hereto shall perform such further
acts and execute such further documents as may be required to carry out the
provisions of this Agreement.
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7. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
8. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof or thereof in any court of the United States or
any state thereof having jurisdiction, this being in addition to any other
remedy to which he/it is entitled at law or in equity, and the parties waive
any requirement to post any bond as a condition to seeking or obtaining
equitable relief.
9. Notices. Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing (including facsimile or
similar writing) and shall be deemed to have been duly given (a) on the date of
service if personally served, (b) on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered,
return receipt requested, postage prepaid, (c) on the next day after sending,
if sent by overnight service, or (d) on the date sent if sent by facsimile, to
the parties at the following addresses or facsimile numbers with a copy sent by
mail as aforesaid on the same date (or at such other address or facsimile
number for a party as shall be specified by like notice):
If to IPL:
International Post Limited
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
if to Video:
Video Services Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to any Stockholder, at his/its address set forth on the
signature page hereto.
10. Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, in whole
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or in part, the validity of the remaining provisions shall not be affected and
the remaining portion of any provision held to be invalid, illegal or
unenforceable shall in no way be affected, prejudiced or disturbed thereby.
11. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall
constitute a single agreement.
12. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflict of laws thereof. Any legal action,
suit or proceeding arising out of or relating to this Agreement may be
instituted in any state or federal court located within the County of New York,
State of New York, 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 or
that such court is an inconvenient forum, that the venue of the action, suit or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court. Each party hereto further irrevocably
submits to the jurisdiction of any such court in any such action, suit or
proceeding.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
INTERNATIONAL POST LIMITED
By:
--------------------------------
Name:
Title:
VIDEO SERVICES CORPORATION
By:
--------------------------------
Name:
Title:
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XXXXXXXX X. XXXXX
Address:
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Telephone:
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Fax:
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THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By:
--------------------------------
Name:
Title:
Address:
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-----------------------------------
Telephone:
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Fax:
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EQUITABLE DEAL FLOW FUND, L.P.
By: Equitable Managed Assets, L.P.,
as general partner
By: The Equitable Life Assurance
Society of the United States,
as general partner
By:
--------------------------------
Name:
Title:
Address:
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-----------------------------------
Telephone:
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Fax:
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-----------------------------------
XXXXX X. XXXXXXXXXX
Address:
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-----------------------------------
Telephone:
-------------------------
Fax:
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-----------------------------------
XXXXXX X. XXXXXXXX
Address:
---------------------------
-----------------------------------
Telephone:
-------------------------
Fax:
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-----------------------------------
XXXXXX X. XXXX
Address:
---------------------------
-----------------------------------
Telephone:
-------------------------
Fax:
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SCHEDULE A
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NUMBER OF SHARES OF IPL
NAME COMMON STOCK
---- ------------
Video Services Corporation 212,096
Xxxxxxxx X. Elkes1 516,012
The Equitable Life Assurance
Society of the United States2 2,562,105
Equitable Deal Flow Fund, L.P.2 2,562,105
Xxxxx X. Siracusano3 3,500
Xxxxxx X. Ferolito3 1,000
Xxxxxx X. Buck3 1,000
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(1) Includes (i) 10,000 shares of IPL Common Stock owned by Xx.Xxxxx'
children, as to which Xx. Xxxxx disclaims beneficial ownership, (ii) five-year
options to purchase 30,000 shares of IPL Common Stock granted by Video and
(iii) six-year, non-qualified options to purchase 149,512 shares of IPL Common
Stock granted by MTE Holdings, Inc. ("Holdings"). The Equitable Life Assurance
Society of the United States and Equitable Deal Flow Fund, L.P. have foreclosed
upon Holdings' IPL Common Stock and will issue the shares of IPL Common Stock
to Xx. Xxxxx pursuant to such options granted by Holdings.
(2) The Equitable Life Assurance Society of the United States and
Equitable Deal Flow Fund, L.P. are related parties and each is deemed to
beneficially own 2,562,105 shares of IPL Common Stock.
(3) Each of Messrs. Siracusano, Ferolito and Buck is also deemed to
beneficially own the 212,096 shares of IPL Common Stock owned by Video as a
result of his relationship with Video.
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