EXHIBIT 2.2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of February 20, 2006,
is by and among Faith Media Holdings, LLC, a Delaware limited liability company
("Parent"); FM Mergerco, Inc., a Tennessee corporation and a wholly owned
subsidiary of Parent ("Merger Sub"); Xxxxxx Xxxxxx, Inc., a Tennessee
corporation (the "Company"); and each of the shareholders listed on the
signature pages hereto (each, a "Shareholder", and, collectively, the
"Shareholders").
RECITALS:
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Parent, Merger Sub and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (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 and wholly owned subsidiary of
Parent (the "Merger");
WHEREAS, as of the date hereof, Shareholder is the Beneficial Owner (as
defined below) of, and has the sole right to vote and dispose of that number of
shares of the Company's Common Stock, $1.00 par value per share (the "Company
Common Stock"), and the Company's Class B Common Stock, $1.00 par value per
share (the "Company Class B Common Stock"), set forth beside Shareholder's name
on Schedule A hereto; and
WHEREAS, concurrently with the execution of the Merger Agreement, and as a
condition to Parent and Merger Sub entering into the Merger Agreement and
incurring the obligations set forth therein, Parent has required that
Shareholder enter into this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used but not defined in this Agreement are used in this
Agreement with the meanings given to such terms in the Merger Agreement. In
addition, for purposes of this Agreement:
"Affiliate" of any Person means another Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such first Person, where "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. For purposes of this Agreement, with
respect to Shareholder, "Affiliate" shall not include the Company and the
Persons that directly, or indirectly through one or more intermediaries, are
controlled by the Company. For the
avoidance of doubt, however, no officer or director of the Company shall be
deemed an Affiliate of another officer or director of the Company by virtue of
his or her status as a director or officer of the Company.
"Alternative Transaction" means (a) any transaction of the type described
in clauses (A) through (F) of the definition of Takeover Proposal contained in
the Merger Agreement other than the transactions contemplated by the Merger
Agreement, and (b) any other action, agreement or transaction that would result
in a breach of any representation, warranty, covenant or other obligation or
agreement of the Company contained in the Merger Agreement or that might hinder,
delay, impede or frustrate the consummation of the transactions contemplated by
the Merger Agreement.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
securities means having beneficial ownership of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act, disregarding the phrase "within
60 days" in paragraph (d)(1)(i) thereof), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
"Beneficial Owner" with respect to any securities means a Person that has
Beneficial Ownership of such securities.
"Equity Interest" means with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of, such Person's capital stock or other
equity interests (including, without limitation, partnership or membership
interests in a partnership or limited liability company or any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses, or distributions of assets, of the issuing Person) whether
outstanding on the date hereof or issued after the date hereof.
"Person" means an individual, corporation, partnership, limited
partnership, limited liability company, unlimited liability company, joint
venture, association, trust, unincorporated organization, Governmental Entity or
other entity (including its permitted successors and assigns).
"Subject Shares" means, with respect to Shareholder, without duplication,
(i) shares of Company Common Stock and Company Class B Common Stock and any
other shares of the Company's capital stock Beneficially Owned by Shareholder on
the date hereof as described on Schedule A hereto, (ii) any additional shares of
Company Common Stock, Company Class B Common Stock or any other capital stock of
the Company acquired by Shareholder or over which Shareholder acquires
Beneficial Ownership after the date hereof and prior to the Effective Time,
(iii) any Equity Interests of any Person that Shareholder is or becomes entitled
to receive by reason of being a holder of any of the Subject Shares, and (iv)
any Equity Interests or other property into which any of such Subject Shares
shall have been or shall be converted or changed, whether by amendment to the
charter of the Company, merger, consolidation, reorganization, reclassification,
capital change or otherwise.
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"Transfer" means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the
Beneficial Ownership thereof and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing. As a
verb, "Transfer" shall have a correlative meaning.
ARTICLE II.
COVENANTS OF SHAREHOLDER
Section 2.1. Agreement to Vote; Consent. Prior to the Expiration Date (as
defined in Section 6.14 of this Agreement) and subject to the terms and
conditions set forth herein:
(a) Shareholder agrees that at any meeting of the shareholders of the
Company, however called, and at every adjournment or postponement thereof, or in
connection with any written consent of, or any other action by, the shareholders
of the Company, Shareholder shall (i) with respect to a shareholder meeting
called for the purpose of approving the adoption of the Merger Agreement and the
transactions contemplated thereby or for the purpose of voting on any
Alternative Transaction, when a meeting is held, appear at such meeting or
otherwise cause the Subject Shares to be counted as present thereat for the
purpose of establishing a quorum, and (ii) vote, or provide a consent with
respect to, all of the Subject Shares entitled to vote or to consent thereon (a)
in favor of approval of adoption of the Merger Agreement and the transactions
contemplated thereby, and any actions required in furtherance thereof and (b)
against any Alternative Transaction.
(b) Shareholder hereby gives any consents or waivers that are
reasonably required for the approval of the Merger Agreement and the
transactions contemplated thereby under the terms of any agreements to which
Shareholder is a party.
(c) Except with respect to the Proxy (as defined below), Shareholder
shall not enter into any agreement or understanding with any Person prior to the
Expiration Date directly or indirectly to vote, grant any proxy or give
instructions with respect to the voting of, the Subject Shares for the purpose
of voting on the adoption of the Merger Agreement and the transactions
contemplated thereby or for the purpose of voting on any Alternative
Transaction.
(d) Shareholder hereby waives, and agrees not to assert or perfect,
any dissenters' rights and any similar rights that it may have by virtue of
ownership of the Subject Shares.
(e) Shareholder agrees to deliver (or cause to be delivered) to Parent
upon request a proxy authorizing the Subject Shares to be voted in accordance
with Section 2.1(a) of this Agreement, substantially in the form of Schedule B
attached hereto (the "Proxy").
Section 2.2. Revocation of Proxies; Cooperation. Prior to the Expiration
Date, Shareholder agrees as follows:
(a) Except with respect to the Proxy, Shareholder hereby represents
and warrants that any proxies heretofore given by Shareholder in respect of the
Subject Shares are not irrevocable and Shareholder hereby revokes any and all
such prior proxies with respect to such Subject Shares. Except with respect to
the Proxy, Shareholder shall not directly or
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indirectly grant any proxies or powers of attorney with respect to the matters
set forth in Section 2.1, deposit any of the Subject Shares or enter into a
voting agreement (other than this Agreement) with respect to any of the Subject
Shares.
(b) At the Company's expense, Shareholder will provide information
reasonably requested by the Company, Parent or Merger Sub for any regulatory
application or filing made or approval sought for, or in connection with, the
Merger and the other transactions contemplated by the Merger Agreement.
(c) Shareholder will take all action necessary to (i) in connection
with any duly held and called meeting of shareholders of the Company, or any
written consent of, or other action by, the shareholders of the Company, vote
the Subject Shares in accordance with the terms of this Agreement, (ii) assuming
the consummation of the Merger in accordance with the terms of the Merger
Agreement, permit the Subject Shares to be acquired in the Merger and (iii)
prevent creditors in respect of any pledge of such shares from exercising their
rights under such pledge in a manner inconsistent with the terms of this
Agreement.
Section 2.3. No Solicitation. In consideration of a single cash payment of
$1.0 million to Xxx X. Xxxxx ("Xxxxx") from Parent or Merger Sub at the Closing
of the Merger plus payment of full medical and hospital insurance coverage for
Xxxxx and his spouse during their lives, Shareholder agrees that prior to the
Expiration Period:
(a) Shareholder shall not, and shall use such Shareholder's best
efforts to cause Shareholder's Affiliates and its and their directors,
employees, attorneys, accountants, advisors, representatives and agents
("Representatives") not to, directly or indirectly, (i) solicit or initiate or
knowingly encourage or take any other action to facilitate the submission of any
Takeover Proposal or any other proposal related to an Alternative Transaction or
initiate an Alternative Transaction, (ii) participate or engage in substantive
discussions or negotiations with, or disclose or provide any non-public
information relating to the Company or any Company Subsidiaries to, or knowingly
facilitate any inquiries by, any Person, that to the actual knowledge of
Shareholder at the relevant time is making any proposal that constitutes, or
that would reasonably be expected to lead to, any Takeover Proposal or any
Alternative Transaction, (iii) knowingly facilitate the making of any proposal
that constitutes, or that would reasonably be expected to lead to, any Takeover
Proposal or Alternative Transaction, (iv) approve, endorse, recommend or vote
for any Takeover Proposal or Alternative Transaction, or (v) enter into any
agreement or agreement in principle, letter of intent or similar document
contemplating or otherwise relating to any Takeover Proposal or Alternative
Transaction.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (i) none of the provisions of this Agreement shall be construed to
prohibit, limit or restrict Shareholder, any of Shareholder's Affiliates or any
of their respective representatives who is a member of the Board of Directors of
the Company or an officer of the Company from exercising his fiduciary duties to
the Company in response to a Takeover Proposal by voting or taking any other
action whatsoever in his capacity as a director or officer provided that the
Company is permitted to take such actions under the Merger Agreement and
provided that Shareholder acts in accordance with the requirements set forth in
the Merger Agreement; and (ii) no action taken by the Shareholder in his
capacity as a director or officer of the Company in compliance with the
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covenants of the Merger Agreement in respect of any Takeover Proposal shall
serve as the basis of a claim that Shareholder is in breach of Shareholder's
obligations hereunder notwithstanding the fact that Shareholder or Shareholder's
representatives have provided advice or assistance to the Company in connection
therewith.
Section 2.4. No Transfer of Subject Shares; Publicity. Prior to the
Expiration Date, Shareholder agrees that:
(a) Shareholder shall not (i) subject any of the Subject Shares to, or
suffer to exist on any of the Subject Shares, any Liens, or (ii) Transfer or
agree to Transfer any of the Subject Shares (other than by operation of the
Merger) or, except with respect to the Proxy, grant any proxy or
power-of-attorney with respect to any of the Subject Shares. The foregoing
restrictions will not apply to Transfers to Affiliates of Shareholder who have
executed an instrument, in form and substance reasonably satisfactory to Parent,
agreeing to be bound by this Agreement to the same extent as Shareholder with
respect to the Subject Shares to which such Transfer relates; provided, that
Shareholder shall remain liable for any failure by such Affiliate to so perform
under this Agreement.
(b) Unless required by applicable law or in connection with any
mandatory regulatory or other filings, neither Shareholder nor any of
Shareholder's Affiliates or Representatives shall make any press release or
public announcement with respect to the business or affairs of the Company,
Parent or Merger Sub, including this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior written consent
of Parent and the Company.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS OF SHAREHOLDER
Shareholder represents, warrants and covenants to each of Parent and Merger
Sub and the Company that:
Section 3.1. Ownership. Shareholder is the Beneficial Owner of the Subject
Shares identified on Schedule A hereto and such shares constitute all of the
capital stock of the Company Beneficially Owned by Shareholder as of the date of
this Agreement. Shareholder has good, valid and marketable title to all of such
shares, free and clear of all Liens, claims, options, proxies, voting agreements
and security interests and has the sole right to vote and dispose of such
Subject Shares and there are no restrictions on rights of disposition or other
encumbrances pertaining to such Subject Shares. Except for Shareholder's
covenants and agreements in this Agreement, none of the Subject Shares is
subject to any voting trust or other contract with respect to the voting
thereof, and no proxy, power of attorney or other authorization has been granted
with respect to any of such Subject Shares.
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Section 3.2. Authority and Non-Contravention.
(a) If Shareholder is not an individual human being, Shareholder is
duly organized, validly existing and in good standing (with respect to
jurisdictions that recognize such concept) under the laws of the jurisdiction in
which it is organized.
(b) Assuming due authorization, execution and delivery of this
Agreement by Parent, Merger Sub and the Company, this Agreement has been, and if
and when executed and delivered, the Proxy will be, duly and validly executed
and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with
its terms except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar Laws generally affecting the rights of creditors and subject to general
equity principles. Shareholder has all necessary power, authority and legal
capacity to execute and deliver this Agreement and to perform Shareholder's
obligations under this Agreement (and with respect to the Proxy, Shareholder
will have at the time of its execution, delivery and performance all necessary
power, authority and legal capacity to execute and deliver the Proxy and to
perform Shareholder's obligations under the Proxy) and no other corporate or
similar proceedings or actions on the part of Shareholder are necessary to
authorize the execution, delivery or performance of this Agreement or the Proxy
or the consummation of the transactions contemplated hereby or thereby. If
Shareholder is a corporation, limited liability company or partnership, such
actions have been duly authorized and approved by all necessary corporate,
limited liability company or partnership action, as the case may be, of
Shareholder.
(c) Shareholder is not nor will it be required to make any filing with
or give any notice to, or to obtain any consent from, any Person in connection
with the execution, delivery or performance of this Agreement or the Proxy or
obtain any Permit from any Governmental Entity for any of the transactions
contemplated hereby, except as may be required by Section 13 or Section 16 of
the Exchange Act and the rules promulgated thereunder.
(d) Neither the execution and delivery of this Agreement or the Proxy
by Shareholder nor the consummation of the transactions contemplated hereby and
thereby do or will (whether with notice or lapse of time or both) (i) in the
event the Shareholder is a corporation, limited liability company or
partnership, conflict with, result in any violation of or require any consent
under any provision of the governing documents of Shareholder, (ii) conflict
with, result in any violation of, require any consent under or constitute a
default by Shareholder under any mortgage, bond, indenture, agreement,
instrument or obligation to which the Shareholder is a party or by which it or
any of Shareholder's assets (including the Subject Shares) are bound, or violate
any Permit of any Governmental Entity, or any Law or order to which such
Shareholder, or any of Shareholder's assets (including the Subject Shares), may
be subject, or (iii) result in the imposition or creation of any Lien upon or
with respect to any of the assets owned by Shareholder (including the Subject
Shares).
Section 3.3. Total Shares. Shareholder, except with respect to Options
disclosed pursuant to the Merger Agreement, is not the Beneficial Owner of, and
does not have (whether currently, upon lapse of time, following the satisfaction
of any conditions, upon the occurrence of any event or any combination of the
foregoing) any right to acquire, and has no other
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interest in or voting rights with respect to, any Company Common Stock, Company
Class B Common Stock or any other capital stock of the Company or any securities
convertible into or exchangeable or exercisable for Company Common Stock,
Company Class B Common Stock or any other capital stock of the Company.
Section 3.4. Reliance. Shareholder understands and acknowledges that Parent
and Merger Sub are entering into the Merger Agreement in reliance upon
Shareholder's execution, delivery and performance of this Agreement.
ARTICLE IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT AND MERGER SUB
Parent and Merger Sub represent, warrant and covenant to Shareholder and
the Company that:
Section 4.1. Organization and Standing. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing (with respect
to jurisdictions that recognize such concept) under the laws of the jurisdiction
in which it is organized.
Section 4.2. Authority.
(a) Each of Parent and Merger Sub has all requisite corporate power
and authority, as applicable, to enter into this Agreement and the Merger
Agreement and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement by Parent and Merger Sub and the
consummation by Parent and Merger Sub of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and Merger Sub, respectively.
(b) Each of this Agreement and the Merger Agreement has been duly
executed and delivered by each of Parent and Merger Sub and, assuming the due
authorization, execution and delivery by Shareholder and the Company,
constitutes the legal, valid and binding obligation of Parent and Merger Sub,
enforceable against Parent and Merger Sub in accordance with its terms, except
as the enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar Laws generally
affecting the rights of creditors and subject to general equity principles.
Section 4.3. No Violation. Neither the execution and delivery by Parent or
Merger Sub of this Agreement and the Merger Agreement nor the consummation by
Parent or Merger Sub of the transactions contemplated hereby and thereby does or
will: (a) violate, conflict with or result in any breach of any provision of the
respective Charter Documents of Parent or Merger Sub; (b) violate, conflict
with, result in a breach of any provision of, constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
result in the termination, cancellation or amendment or in a right of
termination, cancellation or amendment of, accelerate the performance required
by or benefit obtainable under, result in the triggering of any payment or other
obligations pursuant to, result in the creation or imposition of any Lien upon
any of the properties of Parent or Merger Sub; (c) result in there
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being declared void, voidable or without further binding effect, any contract to
which Parent or Merger Sub is a party, or by which Parent or Merger Sub or any
of their respective properties is bound, except for any such breach, default or
right with respect to which requisite waivers or consents have been, or prior to
the Effective Time will be, obtained; (d) other than the (i) the filing with the
SEC of the Proxy Statement; (ii) the filing of the Articles of Merger with the
Secretary of State of the State of Tennessee; (iii) the filing of a premerger
notification and report form by Parent under the HSR Act or filing under any
other applicable foreign competition or investment Law; and (iv) such consents,
approvals, orders or authorizations the failure of which to be made or obtained,
individually or in the aggregate, would not prevent or materially delay
consummation of the Merger, require any consent of any Governmental Entity; or
(e) violate any laws applicable to Parent or Merger Sub or any of their
respective assets or properties.
ARTICLE V.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company represents, warrants and covenants to Shareholder and Parent
and Merger Sub that:
Section 5.1. Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing (with respect to jurisdictions
that recognize such concept) under the laws of the jurisdiction in which it is
organized.
Section 5.2. Authority. The Company has all requisite corporate power and
authority to enter into this Agreement and the Merger Agreement and, subject to
Shareholder Approval, to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Merger Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Company, subject, in the case of the Merger,
to receipt of Shareholder Approval. Each of this Agreement and the Merger
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery by Shareholder and Parent and Merger
Sub, constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar Laws generally
affecting the rights of creditors and subject to general equity principles.
Section 5.3. No Violation.
(a) The execution and delivery of this Agreement and the Merger
Agreement does not, and the consummation of the transactions contemplated by
this Agreement and the Merger Agreement, and compliance with the provisions of
this Agreement and the Merger Agreement will not, (i) conflict with the Charter
Documents of any of the Company Entities, (ii) result in any breach, violation
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or creation or acceleration of any
obligation or right of a third party or loss of a benefit under, or result in
the creation of any Lien upon any of
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the properties or assets of any of the Company Entities under, any Material
Contract, Significant Royalty Agreement or Lease or (iii) subject to the
governmental filings and other matters referred to in Section 3.5(b) of the
Merger Agreement, conflict with or violate any judgment, order, decree or Law
applicable to any of the Company Entities or their respective properties or
assets, other than, in the case of clauses (ii) and (iii), any such conflicts,
breaches, violations, defaults, rights, losses or Liens that, individually or in
the aggregate, would not reasonably be expected to have or result in a Material
Adverse Effect.
(b) No consent, approval, order or authorization of, action by or in
respect of, or registration, declaration or filing with, any Governmental Entity
or any stock exchange is required by the Company in connection with the
execution and delivery of this Agreement and the Merger Agreement by the Company
or the consummation by the Company of the transactions contemplated hereby and
thereby, except for: (i) the filing with the SEC of (A) the Proxy Statement, and
(B) such reports under Section 13(a), 13(d), 13(e), 15(d) or 16(a) or such other
applicable sections of the Exchange Act, as may be required in connection with
this Agreement and the transactions contemplated hereby; (ii) the filing of the
Articles of Merger with the Secretary of State of the State of Tennessee; (iii)
the filing of a premerger notification and report form by the Company under the
HSR Act or filing under any other applicable foreign competition or investment
law; (iv) notifications to the NYSE; and (v) such consents, approvals, orders or
authorizations the failure of which to be made or obtained, individually or in
the aggregate, would not reasonably be expected to have or result in a Material
Adverse Effect.
ARTICLE VI.
GENERAL PROVISIONS
Section 6.1. Non-survival of Representations and Warranties. The
representations and warranties in this Agreement will not survive the earlier to
occur of (a) termination of this Agreement pursuant to Section 6.14, or (b) the
Effective Time. None of the representations and warranties in this Agreement
will survive the Effective Time. This Section 6.1 shall not limit any covenant
or agreement of the parties which by its terms contemplates performance after
the Effective Time.
Section 6.2. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership
or incidents of ownership of or with respect to the Subject Shares. All rights,
ownership and economic benefits of and relating to the Subject Shares shall
remain and belong to Shareholder, and neither Parent nor Merger Sub shall have
any authority to manage, direct, superintend, restrict, regulate, govern or
administer any of the policies or operations of the Company or exercise any
power or authority to direct Shareholder in the voting of any of the Subject
Shares, except as otherwise expressly provided herein or in the Merger
Agreement.
Section 6.3. Notices. All notices, requests, claims, demands and other
communications under this Agreement must be in writing and will be deemed given
if delivered personally, by facsimile (which is confirmed by the sending
facsimile machine) or sent by a nationally recognized overnight courier service
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as is specified by like notice):
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(a) if to Parent or Merger Sub, to:
Faith Media Holdings, LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Company, to:
Xxxxxx Xxxxxx, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxx, PLC
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) If to Shareholder, to:
Xxx X. Xxxxx
00 Xxxxxxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
and
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S. Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Manner
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 6.4. Further Actions. Upon the request of any party to this
Agreement, the other party(ies) will (a) furnish to the requesting party any
additional information, (b) execute and deliver, at their own expense, any other
documents and (c) take any other actions, in each instance, as the requesting
party may reasonably require to carry out the intent of the specific provisions
of this Agreement.
Section 6.5. Entire Agreement and Modification. This Agreement (together
with the agreements referenced herein) constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to its subject matter and constitutes a complete and exclusive statement
of the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended, supplemented or otherwise modified
except in a written document executed by the party against whose interest the
modification will operate.
Section 6.6. Interpretation. When a reference is made in this Agreement to
an Article, Section or Exhibit, such reference is to an Article or Section of,
or an Exhibit to, this Agreement unless otherwise indicated. The table of
defined terms and headings contained in this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they will be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement will refer to this Agreement as a whole and
not to any particular provision of this Agreement. All terms defined in this
Agreement will have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes. The parties hereto have participated jointly in
the negotiating and drafting of this Agreement and, in the event an ambiguity or
question of intent arises, this
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Agreement shall be construed as jointly drafted by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provision of this Agreement.
Section 6.7. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 6.8. No Third-Party Rights. Shareholder may not assign any of
Shareholder's rights or delegate any of Shareholder's obligations under this
Agreement without the prior written consent of Parent. Neither Parent nor Merger
Sub may assign any of its rights or delegate any of its obligations under this
Agreement with respect to Shareholder without the prior written consent of
Shareholder. The Company may not assign any of its rights or delegate any of its
obligations under this Agreement with respect to Shareholder without the prior
written consent of Shareholder. This Agreement will apply to, be binding in all
respects upon, and inure to the benefit of each of their respective successors,
personal or legal representatives, heirs, distributes, devisees, legatees,
executors, administrators and permitted assigns of Shareholder and the
successors and permitted assigns of Parent and Merger Sub and the successors and
permitted assigns of the Company. Nothing expressed or referred to in this
Agreement will be construed to give any Person, other than the parties to this
Agreement, any legal or equitable right, remedy or claim under or with respect
to this Agreement or any provision of this Agreement except such rights as may
inure to a successor or permitted assignee under this Section.
Section 6.9. Enforcement of Agreement. 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. The parties accordingly agree that the parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in the United States
district court for the Middle District of Tennessee, this being in addition to
any other remedy to which they are entitled at law or in equity.
Section 6.10. Waiver. The failure of any party to this Agreement to assert
any of its rights under this Agreement or otherwise will not constitute a waiver
of such rights.
Section 6.11. Governing Law. This Agreement is to be governed by, and
construed in accordance with, the laws of the State of Tennessee, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
Section 6.12. Consent to Jurisdiction; Waiver of Jury Trial.
12
(a) Each of the parties hereto (i) consents to submit itself to the
exclusive jurisdiction of the United States district court for the Middle
District of Tennessee in the event any dispute arises out of this Agreement or
any of the transactions contemplated by this Agreement, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (iii) agrees that it will not bring
any action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than the United States district court for the
Middle District of Tennessee.
(B) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.12(B).
Section 6.13. Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 6.14. Termination. This Agreement shall terminate upon the earliest
of (a) the Effective Time (as defined in the Merger Agreement), (b) September
30, 2006, (c) any modification or amendment of the Merger Agreement that reduces
the consideration to be received by the Shareholders and is not agreed to in
writing by Xxxxx, (d) the termination of the Merger Agreement in accordance with
Section 7.1 thereof, or (e) written notice by Parent to Shareholder of the
termination of this Agreement (the earliest of the events described in clauses
(a), (b), (c), (d) and (e), the "Expiration Date").
Section 6.15. Expenses. Except as otherwise provided in this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses. Nothing in this Agreement shall be deemed to limit the obligations of
the Company pursuant to Section 7.3 of the Merger Agreement. Furthermore, the
Company hereby agrees to promptly reimburse the Shareholders for all legal, tax
and accounting fees and expenses incurred by the Shareholders after October 28,
2005 and related to any change of control transaction of the Company.
[Signature Pages to Agreement to Follow]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PARENT:
FAITH MEDIA HOLDINGS, LLC
By: InterMedia Partners, L.P., its
managing member
By: HK Capital Partners, its general
partner
By: /s/ Xxx Xxxxxxx, Xx.
------------------------------------
Name: Xxx Xxxxxxx, Xx.
Title: General Partner
MERGER SUB:
FM MERGERCO, INC.
By: /s/ Xxx Xxxxxxx, Xx.
------------------------------------
Name: Xxx Xxxxxxx, Xx.
Title: Authorized Signatory
THE COMPANY:
XXXXXX XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
SHAREHOLDERS:
/s/ Xxx Xxxxx
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Xxx Xxxxx
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14
(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
/s/ Xxx X. Xxxxx
----------------------------------------
Xxx X. Xxxxx
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SHAREHOLDER:
/s/ Xxxxx Xxxx Xxxxx
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Xxxxx Xxxx Xxxxx
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SHAREHOLDER:
/s/ Xxx Xxxxx
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Xxx Xxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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SHAREHOLDER:
XXX XXXXX XXX
By: /s/ Xxx Xxxxx
------------------------------------
Its: Authorized Person
-----------------------------------
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
CHARITABLE REMAINDER TRUST '93
By: /s/ Xxx Xxxxx
------------------------------------
Its: Trustee
-----------------------------------
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SHAREHOLDER:
CHARITABLE REMAINDER TRUST '94
By: /s/ Xxx Xxxxx
------------------------------------
Its: Trustee
-----------------------------------
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SHAREHOLDER:
XXXXX INTERNATIONAL FOUNDATION
By: /s/ Xxx Xxxxx
------------------------------------
Its: Authorized Person
-----------------------------------
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SHAREHOLDER:
/s/ Xxx Xxxxx
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Xxx Xxxxx
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SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
----------------------------------------
S. Xxxxxx Xxxxx
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SHAREHOLDER:
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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SHAREHOLDER:
----------------------------------------
Xxxxx Xxxxx
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SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
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S. Xxxxxx Xxxxx
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SHAREHOLDER:
S. XXXXXX XXXXX GRANTOR TRUST
UNDER AGREEMENT
By: /s/ S. Xxxxxx Xxxxx
------------------------------------
Its: Trustee
-----------------------------------
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SHAREHOLDER:
X.X. XXXXXX SAVINGS & INVESTMENT PLAN
By: /s/ S. Xxxxxx Xxxxx
------------------------------------
Its: Authorized Person
-----------------------------------
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SHAREHOLDER:
XXX X. XXXXX CUSTODIAN FOR S. XXXXXX
XXXXX
By: /s/ Xxx X. Xxxxx
------------------------------------
Its: Custodian
-----------------------------------
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SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx
S. Xxxxxx Xxxxx as
Legal and Natural Guardian
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SHAREHOLDER:
XXXXXX XXXXX CUSTODIAN FOR XXXXXX
XXXXXXXX XXXXX UTMA
By: /s/ S. Xxxxxx Xxxxx
------------------------------------
Its: Custodian
-----------------------------------
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxxx Xxxxx
S. Xxxxxx Xxxxx as
Legal and Natural Guardian
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
S. Xxxxxx Xxxxx
as Legal and Natural Guardian
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
/s/ S. Xxxxxx Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
S. Xxxxxx Xxxxx
as Legal and Natural Guardian
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
S. XXXXXX XXXXX CUSTODIAN FOR XXXXXXX
XXXXX UGMA
By: /s/ S. Xxxxxx Xxxxx
------------------------------------
Its: Custodian
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SHAREHOLDER:
XXXXXX XXXXX TRUST UNDER AGREEMENT
By:
------------------------------------
Its:
-----------------------------------
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SHAREHOLDER:
XXXXXX XXXXX ANNUITY TRUST
By:
------------------------------------
Its:
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
XXXXXX XXX XXXXX TRUST UNDER AGREEMENT
By: /s/ Xxx Xxxxx
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Its: Trustee
-----------------------------------
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
XXX XXXXX CUSTODIAN FOR XXXXXXX X.
XXXXXX UGMA
By: /s/ Xxx Xxxxx
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Its: Custodian
-----------------------------------
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
XXX XXXXX FBO XXXXXXX XXXXXX
By: /s/ Xxx Xxxxx
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Its:
-----------------------------------
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SHAREHOLDER:
XXX XXXXX CUSTODIAN FOR XXXXXXX X.
XXXXXX UTMA
By: /s/ Xxx Xxxxx
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Its: Custodian
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(Signatures to Voting Agreement Continued from Prior Page)
SHAREHOLDER:
CEDAR TREE TRUST
By:
------------------------------------
Its:
-----------------------------------
SCHEDULE A
NO. OF SHARES
NO. OF SHARES OF OF COMPANY
COMPANY COMMON CLASS B COMMON
NAME OF SHAREHOLDER STOCK STOCK OTHER COMPANY SECURITIES
------------------- ---------------- -------------- -----------------------------------
Xxx Xxxxx 206,320 289,119 Options to purchase an aggregate
of 604,634 shares of Company
Capital Stock (comprised of Options
to purchase an aggregate of 123,316
shares of Common Stock and 481,318
shares of Class B Common Stock)
Xxx X. Xxxxx 25,000 207,777 --
Xxxxx Xxxx Xxxxx 31,418 3,435 --
Xxx & Xxxxx Xxxxx -- 45,723 --
Xxx Xxxxx XXX 87,759 -- --
Charitable Remainder Trust '93 28,782 -- --
Charitable Remainder Trust '94 273,163 -- --
Xxxxx International Foundation 250,000 -- --
Xxx Xxxxx 62,773 86,070 --
S. Xxxxxx Xxxxx 133,406 891 --
Xxxxxx Xxxxx -- -- Options to purchase an aggregate of
14,000 shares of Company Capital
Stock (comprised of Options to
purchase an aggregate of 14,000
shares of Common Stock)
Xxxxx Xxxxx 2,380 -- --
A-1
NO. OF SHARES
NO. OF SHARES OF OF COMPANY
COMPANY COMMON CLASS B COMMON
NAME OF SHAREHOLDER STOCK STOCK OTHER COMPANY SECURITIES
------------------- ---------------- -------------- -----------------------------------
S. Xxxxxx Xxxxx 2,588 52,685 --
S. Xxxxxx Xxxxx Grantor Trust Under Agreement 22,750 36,785 --
X. X. Xxxxxx Savings & Investment Plan 12,282 -- --
Xxx X. Xxxxx Custodian for S. Xxxxxx Xxxxx -- 626 --
Xxxxxx X. Xxxxx 6,000 -- --
Xxxxxx Xxxxx Custodian for Xxxxxx Xxxxxxxx Xxxxx UTMA 6,125 -- --
Xxxxxx Xxxxxx Xxxxx 3,500 -- --
Xxxxxxx Xxxxx 3,000 -- --
Xxxxxxx X. Xxxxx 3,500 -- --
S. Xxxxxx Xxxxx Custodian for Xxxxxxx Xxxxx UGMA 1,500 1,000 --
Xxxxxx Xxxxx Trust Under Agreement 43,412 4,494 --
Xxxxxx Xxxxx Annuity Trust 43,133 -- --
Xxxxxx Xxx Xxxxx Trust Under Agreement 5,815 1,593 --
Xxx Xxxxx Custodian for Xxxxxxx X. Xxxxxx UGMA 375 -- --
Xxx Xxxxx FBO Xxxxxxx Xxxxxx 300 -- --
Xxx Xxxxx Custodian for Xxxxxxx X. Xxxxxx UTMA 3,621 -- --
Cedar Tree Trust -- 44,167 --
TOTAL: 1,258,902 774,365 618,634
A-2
SCHEDULE B
Form of Proxy
IRREVOCABLE PROXY
REFERENCE IS HEREBY MADE TO THAT CERTAIN VOTING AGREEMENT, DATED FEBRUARY
__, 2006, BY AND AMONG FAITH MEDIA HOLDINGS, LLC, A DELAWARE LIMITED LIABILITY
COMPANY ("PARENT"); FM MERGERCO, INC., A TENNESSEE CORPORATION AND A WHOLLY
OWNED SUBSIDIARY OF PARENT ("MERGER SUB"); XXXXXX XXXXXX, INC., A TENNESSEE
CORPORATION (THE "COMPANY"); AND THE UNDERSIGNED SHAREHOLDER OF THE COMPANY
("SHAREHOLDER") (THE "VOTING AGREEMENT"). Capitalized terms used but not defined
in this Proxy are used in this Proxy with the meanings given to such terms in
the Voting Agreement.
Pursuant to Section 2.1(e) of the Voting Agreement, the undersigned hereby
irrevocably appoints Parent, but if it is unable to act, _______________, as its
proxy, with full power of substitution, to execute written consents and vote all
Subject Shares with respect to, the matters as provided in Section 2.1(a) of the
Voting Agreement. Shareholder acknowledges that this proxy is coupled with an
interest pursuant to Section 00-00-000 of the Tennessee Business Corporation Act
and is therefore irrevocable during the term of the Voting Agreement.
Dated: , 200 ----------------------------------------
--------- ----- - Name of Shareholder
----------------------------------------
Signature
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Title (if applicable)
B-1
