Exhibit 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made and entered into this 8th day of
July, 1999, by and among Marketing Services Group, Inc., a Nevada corporation
("MSGI"), and the undersigned Majority Stockholders of Xxxxxxxx Advertising
Incorporated, a Texas corporation ("Xxxxxxxx").
On even date herewith, MSGI, GCG Merger Corp., a Delaware corporation
("Merger-Sub"), and Xxxxxxxx have entered into an Agreement and Plan of Merger
(the "Merger Agreement"). The Merger Agreement generally provides (i) for the
merger of Xxxxxxxx with and into Merger-Sub (the "Merger") and (ii) for each
issued and outstanding share of Xxxxxxxx Common Stock to be converted into the
right to receive a certain amount of cash and a certain number of shares of MSGI
Common Stock. The transactions contemplated by the Merger Agreement are subject
to the affirmative vote of a majority of the stockholders of Xxxxxxxx, the
receipt of certain regulatory approvals and the satisfaction of other conditions
set forth in the Merger Agreement.
In order to induce MSGI to enter into the Merger Agreement, the
undersigned Majority Stockholders are entering into this Agreement with MSGI to
set forth certain terms and conditions governing the actions to be taken by the
undersigned Majority Stockholders with respect to the shares of Xxxxxxxx Common
Stock owned by each of the Majority Stockholders (collectively, the "Shares")
until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated by
the Merger Agreement and the mutual promises and covenants contained herein, the
parties agree as follows:
1. Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings assigned to them in the Merger Agreement.
2. The number of Shares beneficially owned by each Majority Stockholder
is set forth next to his/hers/its name on Exhibit A attached hereto. Except as
set forth in Schedule 3.1(p) (Sections VIII and IX), each such Share is fully
paid for, non-assessable, and not subject to any lien or encumbrance.
3. Without the prior written consent of MSGI, the undersigned Majority
Stockholders shall not transfer, sell, assign, convey or encumber any of the
Shares during the term of this Agreement except to MSGI pursuant to the terms of
the Merger Agreement. Without limiting the generality of the foregoing, the
undersigned Majority Stockholders shall not grant to any party any option or
right to purchase the Shares or any interest therein or, except as set forth in
Schedule 3.1(p) (Sections VIII and IX), pledge or encumber the Shares. Further,
except with respect to the Merger, the undersigned shall
not approve or ratify any agreement or contract pursuant to which the Shares
would be transferred to any other party as a result of a consolidation, merger,
reorganization or acquisition.
4.(a) Each undersigned Majority Stockholder shall vote all of the
Shares beneficially owned by such Majority Stockholder (and with respect to
which such Majority Stockholder has sole voting power) in favor of the Merger.
Each undersigned Majority Stockholder who is a director of Xxxxxxxx also shall
(i) recommend that the stockholders of Xxxxxxxx approve the Merger when the same
is presented to the stockholders for consideration in properly prepared proxy
materials, subject only to the undersigneds' legal obligations (if any) as
directors of Xxxxxxxx, and (ii) use his or her best efforts to effect
consummation of the Merger and the other transactions contemplated by the Merger
Agreement. Further, each undersigned Majority Stockholder intends to, and shall,
surrender the certificate or certificates representing his or her Shares which
are beneficially owned by him or her (and with respect to which he or she has
sole dispositive power) to MSGI at the Closing of the Merger as described in the
Merger Agreement.
(b) EACH MAJORITY STOCKHOLDER HEREBY APPOINTS MSGI AND ANY DESIGNEE OF
MSGI, EACH OF THEM INDIVIDUALLY, SUCH MAJORITY STOCKHOLDER'S PROXY AND
ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 2.29 OF THE TEXAS
BUSINESS CORPORATION ACT, WITH FULL POWER OF SUBSTITION AND RESUBSTITUTION, TO
VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH MAJORITY STOCKHOLDER'S
SUBJECT SHARES SOLELY ON THE MERGER AGREEMENT IN ACCORDANCE WITH SECTION 3.a.
HEREOF. THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES OF EACH
MAJORITY STOCKHOLDER UNDER THIS AGREEMENT. EACH MAJORITY STOCKHOLDER AFFIRMS
THAT THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. EACH
MAJORITY STOCKHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUCMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
(c) Each Majority Stockholder represents that any proxies heretofore
given in respect of such Majority Stockholder's Shares are not irrevocable and
that all such proxies are hereby revoked.
5. Each undersigned Majority Stockholder acknowledges and agrees that
MSGI could not be made whole by monetary damages in the event of any default by
the undersigned of the terms and conditions set forth in this Agreement. It is
accordingly agreed and understood that MSGI, in addition to any other remedy
which it may have at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and specifically to enforce
the terms and provisions hereof in any action instituted in any court of the
United States or in any state having appropriate jurisdiction.
6. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
7. The covenants and obligations set forth in this Agreement shall
expire and be of no further force and effect on the later of __________, 1999,
or the date upon which Xxxxxxxx exercises its right to terminate the Merger
Agreement and the transactions contemplated thereby if the Merger is not
consummated by such date.
8. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed
under seal and delivered by the undersigned as of the day and year first above
written.
/s/ Xxxxx Xxxxxxxx Xxxxx
------------------------------- (SEAL)
Name: Xxxxx Xxxxxxxx Xxxxx
------------------------------- (SEAL)
Name: Xxxxxxx X. Xxxxx
------------------------------- (SEAL)
Name: Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------- (SEAL)
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------- (SEAL)
Name: Xxxxxx X. Xxxxxxxx, Xx.
------------------------------- (SEAL)
Name: Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------- (SEAL)
Name: Xxxxxx X. Xxxxxxxx, Xx.
------------------------------- (SEAL)
Name: Xxxxxx X. Xxxxxxxx, Xx.
------------------------------- (SEAL)
Name: Xxxxxxxxx X. Xxxxxxxx
/s/ Xxxx Xxxx Xxxxxxx
------------------------------- (SEAL)
Name: Xxxx Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------- (SEAL)
Name: Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
------------------------------- (SEAL)
Name: Xxxxx Xxxxxxxx
------------------------------- (SEAL)
Name: Xxxx Xxxxx Xxxxxxx
Trust for the Benefit of The Salvation Army
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Name:
------------------------------------
Title:
-----------------------------------
Trust -for the Benefit of Xxxx Xxxxx Xxxxxxx
/s/ Xxxx Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxx Xxxxxxx
------------------------------------
Title: Trustee
-----------------------------------
Trust -for the Benefit of Xxxx Xxxx Xxxxxxx
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Name:
------------------------------------
Title:
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[Signatures Continued on Next Page]
ATTEST: MARKETING SERVICES GROUP, INC.
By: By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ---------------------------------
Secretary Name: Xxxxxx Xxxxxxx
Title: President and Chief
Executive Officer
[Corporate Seal]
EXHIBIT A
Majority Stockholders Shares Beneficially Owned
--------------------- -------------------------
Xxxxx Xxxxxxxx Xxxxx 10129
Xxxxxxx X. Xxxxx 3000
Xxxxx X. Xxxxxxx 3210
Xxxxxxx X. Xxxxxxx 7410
Xxxxxx X. Xxxxxxxx, Xx., (Chip) Xxxxxxxx, Jr. 14246.71
Xxxxx X. Xxxxxxxx 3444
Xxxxxx X. Xxxxxxxx, Xx. 27188.48
Xxxxxx X. Xxxxxxxx, Xx. 800
Xxxxxxxxx X. Xxxxxxxx 953
Xxxx Xxxx Xxxxxxx 2800
Xxxxx Xxxxxxx 7459.43
Xxxxxx Xxxxxxxx 9547.39
Xxxx Xxxxxxx 500
The Salvation Army, c/o Xxx Xxxxxxxx 12413.56
Xxxx Xxxxx Xxxxxxx, Trustee 6013.06
Xxxx Xxxx Xxxxxxx, Trustee 6013.06
