EXHIBIT 8
VOTING AGREEMENT
THIS AGREEMENT made as of the 12th day of June, 1998.
BY AND AMONG:
XXXXX X. XXXXXXXXX,
of the City of Toronto in the
Province of Ontario
(hereinafter referred to as "Drabinsky"),
OF THE FIRST PART
- and -
XXXXX X. XXXXXXXX,
of the City of Toronto in the
Province of Ontario
(hereinafter referred to as "Xxxxxxxx"),
OF THE SECOND PART
- and -
XXX X. XXXXXX,
of the City of New York in the
State of New York
(hereinafter referred to as "Xxxxxx"),
OF THE THIRD PART
- and -
XXXXX X. XXXXXX,
of the City of Xxxxxxx Hills in the
State of California
(hereinafter referred to as "Xxxxxx" and together with
Drabinsky, Gottlieb and Xxxxxx, as the "Shareholders"),
OF THE FOURTH PART
- and -
LYNX VENTURES L.P.,
a limited partnership existing under the laws of
the State of Delaware
(hereinafter referred to as the "Investor"),
OF THE FIFTH PART.
WHEREAS the Shareholders have purchased, or have rights to
purchase, shares of common stock, no par value (the "Common Shares"), of
Livent Inc. (the "Corporation");
WHEREAS the Shareholders, the Investor, the Corporation and
Montreal Trust Company of Canada, as depositary (the "Depositary"), have
entered into a Voting Trust Agreement, dated as of the date hereof (the
"Voting Trust Agreement"), pursuant to which each of the Shareholders have
agreed to deposit all of the Common Shares beneficially owned by him which
are free and clear of any encumbrances with the Depositary to allow such
securities to be voted by the Investor, in its capacity as Voting Trustee
(as defined therein), pursuant to the terms thereof;
WHEREAS the Shareholders and the Investor have each agreed to
enter into a voting agreement pursuant to which the Investor shall be
authorized to vote all Common Shares or voting securities beneficially
owned by the Shareholders which are not subject to the Voting Trust
Agreement on all matters presented to shareholders of the Corporation for a
vote; and
WHEREAS the execution and delivery of this Agreement is a
condition precedent to the closing of the transactions contemplated by the
Investment Agreement, dated as of April 13, 1998 (the "Investment
Agreement"), between the Corporation and the Investor.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of
the respective covenants and agreements of the parties contained herein and
for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto), the parties,
intending to be legally bound, hereby agree as follows:
1. SUBJECT SHARES. Each of the Shareholders hereby agree that all Common
Shares and other voting securities beneficially owned by him as of the date
hereof or that become beneficially owned by him hereafter, which are not
subject to the Voting Trust Agreement (the "Subject Shares"), shall be
subject to the terms and provisions of this Agreement. Each of the
Shareholders, with respect to the Common Shares indicated opposite such
Shareholder's name in Schedule A annexed hereto, does hereby represent and
warrant that such shares represent all of the Common Shares and other
voting securities in the Corporation beneficially owned by him as of the
date hereof which are not subject to the Voting Trust Agreement. Each
Shareholder hereby agrees to provide prompt notice to the Investor in the
event of a change in the number of Subject Shares beneficially owned by
such Shareholder.
2. PROXY AUTHORITY. Each Shareholder shall take all such action as shall
be required in order to appoint the Investor as its duly authorized proxy
holder for all of the Subject Shares beneficially owned by such
Shareholder. Such appointment shall provide the Investor with full
authority to vote all of the Subject Shares beneficially owned by such
Shareholder, on all matters presented to the shareholders of the
Corporation for a vote, as the Investor, in its sole discretion shall deem
appropriate. Such appointment shall be renewed as appropriate by the
Shareholders during the term of this Agreement in order to ensure that the
Investor remains the duly authorized proxy holder of such Shareholder at
all times during the term of this Agreement. Each Shareholder hereby
represents and warrants, with respect to the Subject Shares beneficially
owned by him, that no proxies have been granted by such Shareholder with
respect to any of the Subject Shares that remain in effect as of the date
hereof and hereby covenants that, for so long as this Agreement remains in
full force and effect, no proxy shall be granted to a third party with
respect to any of the Subject Shares beneficially owned by such Shareholder
without the prior written consent of the Investor.
3. VOTE AS DIRECTED. In the event that for any reason a Shareholder is
not able to grant the Investor the requisite authority necessary for the
Investor to vote the Subject Shares beneficially owned by such Shareholder
in accordance with the provisions of Section 2 on or before the date on
which the vote of the shareholders of the Corporation must be cast, such
Shareholder shall cause all such Subject Shares beneficially owned by him
to be voted on such matter in accordance with any instructions it receives
from the Investor.
4. TEMPORARY RELEASE OF VOTING AUTHORITY. The Investor may, in its sole
discretion and upon written notice to the Shareholder, irrevocably
relinquish its right to vote the Subject Shares identified in such notice
(the "Exempt Shares") for the period of time (the "Exemption Period") set
forth therein. Upon receipt of such notice, the Shareholder shall be
entitled to revoke the proxy issued to the Investor pursuant to Section 2
with respect to the Exempt Shares and vote all such shares during the
Exemption Period in such Shareholder's sole discretion. The Shareholder,
unless otherwise directed by the Investor, shall take all such action as
shall be necessary to reestablish the Investor's right to vote the Exempt
Shares in accordance with the terms of this Agreement, upon termination of
the Exemption Period.
5. TERM AND TERMINATION OF VOTING AGREEMENT.
(a) This Agreement shall become effective as of the Closing Date (as
such term is defined under the Investment Agreement) and shall remain in
full force and effect, unless otherwise terminated in accordance with the
terms of this Agreement, from the Closing Date through to the date which is
twenty one (21) years after the death of the last living Shareholder.
(b) This Agreement shall automatically terminate if at any time
following the Closing Date the Investor and its affiliates beneficially own
less than the Share Limit (as defined below). As used herein, the term
"Share Limit" shall mean initially 500,000 Common Shares and shall be
appropriately adjusted from time to time to take into account dilutive
effects resulting from changes in the number of shares of common stock
outstanding subsequent to the Closing Date, whether by recapitalization,
declaration of a stock split, payment of a stock dividend or otherwise.
6. ALLOCATION OF VOTING RIGHTS.
(a) The Investor will in no event have the right to cast votes with
respect to Non-Investor Shares to the extent that the sum of the number of
votes the Investor has a right to vote with respect to (i) Investor Shares
and (ii) Non-Investor Shares exceeds 50% of the total number of votes which
can be cast by all Voting Securities. For purposes of this provision, this
restriction shall apply first to the Investor's right to vote Common Shares
attributable to Outstanding Options held by the Shareholders pursuant to
this Agreement and the Voting Trust Agreement on a pro rata basis and then
to any Common Shares (other than Investor Shares) held by the Shareholders
on a pro rata basis.
(b) To the extent that the Investor is precluded from exercising
voting rights with respect to Common Shares outstanding pursuant to Section
6(a), voting rights with respect to such Common Shares outstanding (the
"Additional Voting Rights") shall be allocated to Xxxxxx provided that
Xxxxxx shall not have a right to cast votes that would cause such
Additional Voting Rights, when aggregated with any other voting rights
owned by Xxxxxx, to equal or exceed 10% of the total number of votes which
can be cast by all Voting Securities (assuming for such purposes that all
Outstanding Options are converted to Common Shares if Xxxxxx would have the
right to vote such Common Shares), in which case another party designated
by the parties to this Agreement shall have the right to cast the
Additional Voting Rights.
(c) Xxxxxx shall be entitled to exercise the Additional Voting Rights
on all matters presented to the shareholders of the Corporation for voting
in his sole discretion. Further, Xxxxxx shall be permitted to designate a
substitute party to exercise the Additional Voting Rights, provided that
the Investor consents and such consent is consistent with the terms of the
Boston Agreement.
(d) The provisions of this Section 6 shall expire if the sum of the
Investor Shares and the Boston Shares exceeds more than 50% of all
outstanding Voting Securities or the Corporation otherwise becomes a
controlled foreign corporation ("CFC") for U.S. federal income tax
purposes.
(e) Each of the parties hereto covenants and agrees to cooperate with
each other with respect to compliance with the provisions of this Section 6
and to report to each other any information affecting such compliance.
Further, each of the parties hereto hereby covenants and agrees to
implement a strategy to prevent the voting rights of any person other than
Investor to equal or exceed 10% of the total number of votes which can be
cast by all Voting Securities (assuming for such purposes that all
Outstanding Options are converted to Common Shares if such person would
have the right to vote such Common Shares).
(f) For purposes of this Section 6 only, the term "Voting Securities"
means all Common Shares and any other voting securities of the Corporation.
(g) For purposes of this Section 6 only, the term "Outstanding
Options" means all outstanding options, warrants and convertible debentures
of the Corporation that may be converted to Common Shares.
(h) For purposes of this Section 6 only, the term "Investor Shares"
means all Voting Securities owned by the Investor directly, indirectly, or
by attribution, assuming for such purposes that all Outstanding Options are
converted to Common Shares if such Common Shares would be considered to be
Investor Shares pursuant to this provision.
(i) For purposes of this Section 6 only, the term "Non-Investor
Shares" means all Voting Securities other than Investor Shares that
Investor has a right to vote pursuant to this Agreement, the Voting Trust
Agreement, the Boston Agreement or otherwise, assuming for such purposes
that all Outstanding Options are converted to Common Shares if such Common
Shares would be considered to be Non-Investor Shares pursuant to this
provision.
(j) For purposes of this Section 6 only, the term "Boston Agreement"
means the Voting, Right of First Offer and Waiver Agreement, dated as of
June __, 1998, among the Investor, Xxxxxx X. Xxx Equity Partners, L.P.
("THL"), and THL-CCI Limited Partnership ("THL-CCI").
(k) For purposes of this Section 6 only, the term "Boston Shares"
means all Voting Securities owned by THL and THL-CCI directly, indirectly,
or by attribution, assuming for such purposes that all Outstanding Options
are converted to Common Shares if such Common Shares would be considered to
be Boston Shares pursuant to this provision.
7. CHANGE OF COMMON SHARES. The parties hereto agree that the provisions
of this Agreement relating to the Subject Shares shall apply, mutatis
mutandis, to any shares or securities into which such Subject Shares may be
converted, changed, reclassified redivided, redisignated, subdivided or
consolidated, to any shares or securities which are received by the
Shareholder as a stock dividend or distribution payable in shares or
securities of the Corporation which entitle the holder thereof to vote at
any meeting of the shareholders of the Corporation and to any shares or
securities of the Corporation or of any successor or continuing company or
corporation to the Corporation which may be received by the Shareholder on
a reorganization, amalgamation, consolidation or merger, statutory or
otherwise.
8. AMENDMENTS. This Agreement may be amended only with the written
approval of each of the parties hereto.
9. WARRANTY. Each of the parties hereto represents, warrants and agrees
that he is free to enter into this Agreement and is not subject to any
obligations or agreements which will or might prevent or interfere with the
performance of his obligations hereunder. Each of the parties hereto
further represents and warrants and acknowledges and agrees that he has had
the opportunity to seek, and was not prevented or discouraged from seeking,
independent legal advice prior to the execution and delivery of this
Agreement and that, in the event that he did not avail himself of that
opportunity prior to signing this Agreement, he did so voluntarily without
any undue duress or pressure and agrees that this failure to obtain legal
advice shall not be used by him as a defense as to the enforcement of his
obligations under this Agreement.
10. NOTICE. All notices, requests, demands and other communications shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by United States or Canadian mails or by telegram or
telex confirmed by letter, or by facsimile transmission, receipt confirmed,
to the address set forth below:
(i) in the case of Drabinsky:
Livent Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
(ii) in the case of Xxxxxxxx:
Livent Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
(iii) in the case of Xxxxxx:
c/o Schulte, Xxxx & Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Fax No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
(iv) in the case of Xxxxxx:
Lynx Ventures L.P.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
X.X.X.
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
(v) in the case of the Investor:
Lynx Ventures L.P.
c/x Xxxxxx, Xxxxxxx & Associates
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
U.S.A.
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
U.S.A.
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
with a courtesy copy to:
Xxxxxx, Xxxxxx & Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
U.S.A.
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
All notices requiring timely attention shall be sent by facsimile
transmission, telex or overnight mail. Any notice shall be deemed
received, unless earlier received, (a) if sent by certified or registered
mail, return receipt requested, when actually received, (b) if sent by
overnight mail, on the next business day, (c) if sent by telegram or telex,
on the date sent, and (d) if sent by facsimile transmission or delivered by
hand, on the date of receipt. Any party may change its address for service
from time to time by notice given in accordance with the foregoing
provisions.
11. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY
AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE PROVINCE OF ONTARIO AND THE
FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE PROVINCE
OF ONTARIO OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE PROVINCE OF ONTARIO AND THE
FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
12. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
parties shall negotiate in good faith with a view to the substitution
therefor of a suitable and equitable solution in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid
provision, provided, however, that the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
13. ASSIGNMENT. This Agreement may not be assigned by a party hereto
without the prior written consent of the other parties hereto.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors, permitted
assigns, heirs, administrators, executors and legal personal
representatives.
15. NUMBER AND GENDER. Words importing the singular number only shall
include the plural and vice versa, words importing the masculine gender
shall include the feminine and neuter genders and vice versa and words
importing persons shall include individuals, partnerships, associations,
trusts, unincorporated organizations and corporations and vice versa.
16. ENTIRE AGREEMENT. This Agreement, including Schedule A hereto,
constitutes the entire agreement between the parties with respect to the
subject matter hereof. There are no conditions, covenants, agreements,
representations, warranties or other provisions, express or implied,
collateral, statutory or otherwise, relating to the subject matter hereof,
except as provided herein. No amendment, waiver or termination of this
Agreement shall be binding on a party hereto unless consented to in writing
by such party.
17. TIME OF THE ESSENCE. Time shall be the essence of this Agreement.
18. FURTHER ASSURANCES. Each of the parties to this Agreement shall do
all such acts and things and shall execute and deliver, or cause to be
executed and delivered, all such documents, instruments and agreements as
may be necessary or desirable to give effect to the provisions of and the
intent of this Agreement.
19. NO INCONSISTENT ARRANGEMENTS. Each of the parties hereby covenants
and agrees that, except as expressly provided in this Agreement, it shall
not take any action that would in any way restrict, limit or interfere with
the performance of its obligations hereunder or the transactions
contemplated hereby.
20. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which, when executed by a party hereto, shall be deemed to be an
original and such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have hereunto set their
corporate seals and hands and seals.
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxx
__________________________ __________________________
Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
__________________________ __________________________
Xxx X. Xxxxxx Xxxxx X. Xxxxxx
LYNX VENTURES L.P.
By: Lynx Ventures L.L.C.,
its General Partner
By /s/ Xxxxxxx X. Xxxxx
_____________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
SCHEDULE A
Shareholder Common Shares
Xxxxx X. Xxxxxxxxx 1,792,875
Xxxxx X. Xxxxxxxx 1,042,875
Xxx X. Xxxxxx 0
Xxxxx X. Xxxxxx 0
