STOCKHOLDER VOTING AGREEMENT
Exhibit
10.17
THIS STOCKHOLDER VOTING AGREEMENT (this
“Agreement”), dated as of July ___, 2009, is entered into by and among those
individuals named as Stockholders on the signature pages hereto (each of whom is
individually designated herein as a “Stockholder” and collectively referred to
herein as the “Stockholders”), MEDIALINK WORLDWIDE INCORPORATED, a Delaware
corporation (the “Company”), THE NEWSMARKET, INC., a Delaware corporation
(“Parent”) and TNM GROUP INCORPORATED, a Delaware corporation (“Merger Sub”).
Capitalized terms used herein and not otherwise defined herein have the
meaning given such terms in the Merger Agreement (as defined
below).
RECITALS:
The Company, Parent and Merger Sub are
concurrently with the execution of this Agreement entering into an Agreement and
Plan of Merger, dated as of the date hereof (as it may be modified or amended
from time to time, the “Merger Agreement”) pursuant to which, among other
things, Merger Sub would be merged with and into the Company.
The Stockholders have reviewed a copy
of the Merger Agreement.
Each Stockholder owns of record and/or
beneficially and has the unrestricted power to vote the shares of Common Stock,
par value $.01 per share, of the Company (the “Shares”) listed opposite such
Stockholder’s name on Exhibit
A attached hereto;
Pursuant to the terms of the Merger
Agreement, the Company has agreed, among other things, to call a meeting of its
stockholders for the purpose of voting upon the approval and adoption of the
Merger Agreement and the transactions contemplated thereby, including the Merger
(such meeting, together with any adjournments thereof, the
“Meeting”).
It is a condition to Parent and Merger
Sub entering into the Merger Agreement that the Stockholders shall have entered
into this Agreement providing, among things, that the Stockholders vote their
Shares in favor of the Merger.
AGREEMENT:
NOW, THEREFORE, in consideration of the
Company, Parent and Merger Sub entering into the Merger Agreement and the
respective representations, warranties, 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 hereby agree as
follows:
1. Representations and
Warranties of the Stockholders. Each Stockholder severally (not
jointly and severally) represents and warrants to Parent and Merger Sub as
follows:
(a) Ownership of
Securities. As of the date hereof, such Stockholder is the record and/or
beneficial owner of the number of Shares set forth on Exhibit A attached
hereto (such Shares, together with any Shares or other capital stock or
securities of the Company hereafter acquired by such Stockholder, the “Subject
Securities”). Such Stockholder (i) has sole voting power and/or sole power
to issue instructions with respect to the voting of the Subject Securities, sole
power of disposition, sole power of exercise or conversion and/or the sole power
to demand, whether directly or through a broker, appraisal rights, in each case
with respect to all of the Subject Securities and (ii) on the date of the
Meeting, will have sole voting power and/or sole power to issue instructions
with respect to the voting of all of such Subject Securities, and the sole
powers of disposition, exercise and/or to demand appraisal rights, in each case
with respect to all of such Subject Securities. As of the date hereof,
except for certain stock options not yet exercised, such Stockholder does
not beneficially or of record own any Shares or other capital stock or
securities of the Company other than those set forth on Exhibit
A.
(b) Power; Binding
Agreement. Such Stockholder has the legal capacity, power and
authority to enter into and perform all of such Stockholder’s obligations under
this Agreement. The execution, delivery and performance of this Agreement
by such Stockholder will not violate any other agreement to which such
Stockholder is a party including, without limitation, any trust agreement,
voting agreement, stockholders’ agreement or voting trust. This Agreement
has been duly and validly authorized, executed and delivered by such Stockholder
and constitutes a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors’
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity.
(c) No
Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby.
Neither the execution and delivery of this Agreement by such Stockholder
nor the consummation by such Stockholder of the transactions contemplated hereby
nor compliance by such Stockholder with any of the provisions hereof shall
conflict with or result in any breach of any organizational documents applicable
to such Stockholder, result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
such Stockholder is a party or by which such Stockholder’s properties or assets
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder’s properties or assets.
(d) No Proxies
etc. The Subject Securities are now and at all times during
the term hereof will be held by such Stockholder, or by a nominee or custodian
for the benefit of such Stockholder, free and clear of all proxies, voting
trusts or agreements, understandings or arrangements.
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2. Agreement to Vote.
At every meeting of the stockholders of the Company, including without
limitation the Meeting, called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent of
the stockholders
of the Company with respect to any of the following, each Stockholder, severally
and not jointly, agrees, in its capacity as a stockholder only,
that it shall vote or execute a written consent, as the case may be, with
respect to all the Subject Securities as to which it has power to vote in any
such vote or consent as follows:
(a) in
favor of the Merger and the approval and adoption of the Merger Agreement and
each of the other transactions contemplated thereby;
(b) against
the approval of an Acquisition Proposal; and
(c) against
any other action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that could reasonably be expected to impede,
interfere with or delay the Merger or this Agreement including, but not limited
to: (i) any extraordinary corporate transaction, such as a merger, consolidation
or other business combination involving the Company or its Subsidiaries (other
than a transaction involving Merger Sub); (ii) a sale, lease or transfer of a
material amount of assets of the Company or its Subsidiaries or a
reorganization, recapitalization or liquidation of the Company or its
Subsidiaries; (iii) any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by Parent; (iv) any material
change in the present capitalization or dividend policy of the Company or any
amendment of the Company’s certificate of incorporation; or (v) any other
material change in the Company’s corporate structure or business.
No
Stockholder shall enter into any agreement, arrangement or understanding with
any Person the effect of which would be inconsistent or violative of the
provisions and agreements contained in this Section 2.
3. PROXY.
EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS MERGER SUB AND THE PRESIDENT OF
MERGER SUB, IN HIS OR HER CAPACITY AS AN OFFICER OF MERGER SUB, AND ANY
INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO SUCH OFFICE, AND ANY OTHER DESIGNEE OF
MERGER SUB, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER’S PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN
CONSENT WITH RESPECT TO THE SUBJECT SECURITIES WITH RESPECT TO THE MATTERS IN
CLAUSES (a), (b), and (c) OF SECTION 2 ABOVE. THIS PROXY IS COUPLED WITH
AN INTEREST AND SHALL BE IRREVOCABLE, AND EACH STOCKHOLDER WILL TAKE SUCH
FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY IT WITH RESPECT TO THE SUBJECT SECURITIES.
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4. Termination.
This Agreement (including the proxy granted in Section 3 above) shall
terminate on the earlier of:
(a) the
date on which the Merger Agreement is terminated in accordance with its terms,
or
(b) the
date on which the Company’s Board of Directors makes a Change in the
Recommendation; or
(c) the
date on which the Merger is consummated.
Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby or by the Merger Agreement
on the part of any party hereto or any of its directors, officers, partners,
stockholders, employees, agents, advisors, representatives or
affiliates, provided, however, that nothing herein shall relieve any party from
liability for any breach of this Agreement prior to such termination, and
provided further that nothing herein shall limit, restrict, impair, amend or
otherwise modify the rights, remedies, obligations or liabilities of any Person
under any other contract or agreement, including, without limitation, the Merger
Agreement.
5. Covenants of the
Stockholders. Each Stockholder hereby agrees and covenants
that:
(a) No Solicitation.
Such Stockholder shall not, directly or indirectly, solicit (including by
way of furnishing information) or respond to any inquiries or the making of any
Acquisition Proposal or any proposal by any Person (other than Parent or Merger
Sub and other than advising such Person of the existence of this Agreement) with
respect to the Company that constitutes or could reasonably be expected to lead
to an Acquisition Proposal. If such Stockholder receives any such inquiry
or proposal, then it shall promptly inform Parent of the terms and conditions,
if any, of such inquiry or proposal and the identity of the Person making it.
Such Stockholder will immediately cease and cause to be terminated any
existing discussions or negotiations with any parties conducted heretofore with
respect to any of the foregoing. Notwithstanding anything contained
herein to the contrary, each Stockholder may act on behalf of the Company in its
capacity as a director or officer of the Company to the extent the Company is
permitted or required to act with respect to an Acquisition Proposal, and any
such action shall not be deemed a violation of this Section 5(a).
(b) Restriction on Transfer,
Proxies and Noninterference. Such Stockholder shall not, directly
or indirectly: (i) except pursuant to the terms of the Merger Agreement, offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to or consent to an offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder’s Subject Securities; (ii) except as contemplated hereby, grant any
proxies or powers of attorney, deposit any Subject Securities into a voting
trust or enter into a voting agreement with respect to any Subject Securities;
or (iii) take any action that would make any representation or warranty
contained herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing its obligations under this
Agreement.
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6. Appraisal
Rights. Such Stockholder agrees not to exercise any rights
(including, without limitation, under Section 262 of the General Corporation Law
of the State of Delaware) to demand appraisal of any Subject Securities which
may arise with respect to the Merger.
7. Action in Stockholder
Capacity Only. No Stockholder makes any agreement or understanding
hereunder as a director or officer of the Company. Each Stockholder signs
this Agreement solely in his, her or its capacity as record and beneficial
owners of the Subject Securities, and nothing herein shall limit or affect any
actions taken in such Stockholder’s capacity as an officer or director of the
Company, including, without limitation, any actions taken by such person in the
exercise of such person’s fiduciary duties as a director of the
Company.
8. Specific
Performance. Each Stockholder hereby acknowledges that damages
would be an inadequate remedy for any breach of the provisions of this Agreement
and agrees that the obligations of the Stockholder shall be specifically
enforceable and that Parent and Merger Sub shall be entitled to injunctive or
other equitable relief upon such a breach by any Stockholder. Each
Stockholder further agrees to waive any bond in connection with the obtaining of
any such injunctive or equitable relief. This provision is without
prejudice to any other rights that Parent or Merger Sub may have against a
Stockholder for any failure to perform the Stockholder’s obligations under this
Agreement.
9. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF DELAWARE REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
PRINCIPLES OF CONFLICTS OF LAWS APPLICABLE THERETO.
10. Amendments, No
Waivers.
(a) Any
provision of this Agreement may be amended or waived prior to the Effective Time
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by the Stockholders, the Company, Parent and Merger Sub or in
the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
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11. Further Actions.
Each of the parties hereto agrees to cooperate fully in the effectuation
of the transactions contemplated hereby and to execute any and all additional
documents or take such additional actions as shall be reasonably necessary or
appropriate for such purpose.
12. Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns. No party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of the other parties
hereto.
13. Exclusive
Jurisdiction. The parties agree that any legal action, suit or
proceeding arising out of or relating to this Agreement or the agreements and
transactions contemplated hereby shall be exclusively instituted in any federal
court located in the State of Delaware or any Delaware state court, which shall
be the exclusive jurisdiction and venue of said legal proceedings, and each
party hereto consents to the personal jurisdiction of such courts and waives any
objection that such party may now or hereafter have to the personal jurisdiction
of such courts or the laying of venue of any such action, suit or
proceeding.
14. Notices. All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made if and when
delivered personally or by overnight courier or sent by electronic transmission,
with confirmation received, to the address or telecopy number specified in this
Section 14 or to such other address or telecopy number as any party may furnish
to the other parties in writing in accordance herewith:
(a) If
to any Stockholder, to the applicable address set forth opposite such
Stockholder’s name on Exhibit
A attached hereto.
(b) If
to the Company, Parent or Merger Sub, to the applicable address set forth in
Section 10.1 of the Merger Agreement.
15. Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
16. Severability.
If any term or other provision of this Agreement is invalid, illegal, or
incapable of being enforced by any rule or law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the legal substance of the rights and obligations
contemplated by this Agreement are not affected in any manner materially adverse
to any party. 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 in order that the Merger and other
transactions contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
[Signature
page follows]
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IN WITNESS WHEREOF, each Stockholder,
the Company, Parent and Merger Sub have executed this Agreement to be effective
as of the date set forth in the first paragraph above.
COMPANY:
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Medialink
Worldwide Incorporated
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Chief
Financial Officer
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PARENT:
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The
Newsmarket, Inc.
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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CEO/resident
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MERGER
SUB:
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TNM
Group Incorporated
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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CEO/resident
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STOCKHOLDERS:
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/s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx
Xxxxxxxxx
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/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx
Xxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx
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[SIGNATURE
PAGE TO STOCKHOLDER VOTING AGREEMENT]
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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/s/ Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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/s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx
Xxxxxxxx
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/s/ Xxxxx X. X’Xxxxx
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Xxxxx
X. X’Xxxxx
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx
Xxxxx
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/s/ Xxxxxxxx Xx. Xxxxxxx
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Xxxxxxxx
Wm. Tashlik
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[SIGNATURE
PAGE TO STOCKHOLDER VOTING AGREEMENT]
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