Exhibit 10.1
COMPANY STOCKHOLDER VOTING AGREEMENT
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COMPANY STOCKHOLDER VOTING AGREEMENT, dated as of February 20, 2000
(this "Agreement"), by and among HAVAS ADVERTISING, a societe anonyme organized
under the laws of the French Republic (the "Parent"), and each of the other
signatories hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, concurrently herewith, Parent, HAS Acquisition Corp. and
Xxxxxx Communications, Inc., a Delaware corporation (the "Company"), are
entering into an Agreement and Plan of Merger (as such agreement may hereafter
be amended from time to time, the "Merger Agreement"; capitalized terms used
without definition herein having the meanings ascribed thereto in the Merger
Agreement);
WHEREAS, each Stockholder is the beneficial owner of the number of
shares ("Company Shares") of each class of capital stock of the Company entitled
to vote set forth opposite such Stockholder's name in Schedule I hereto;
WHEREAS, approval and adoption of the Merger Agreement by the
Company's stockholders is required in order to consummate the Merger;
WHEREAS, the Board of Directors of the Company has, prior to the
execution of this Agreement, duly and validly approved and adopted the Merger
Agreement and has resolved and agreed to recommend to its stockholders that they
approve and adopt the Merger Agreement, and such approval, adoption, resolution
and agreement has not been withdrawn;
WHEREAS, the Stockholders are executing this Agreement (i) as an
inducement to Parent to enter into and execute the Merger Agreement and (ii) in
reliance upon the representations, warranties, agreements and covenants of
Parent set forth in the Merger Agreement; and
WHEREAS, certain holders of shares of the capital stock of Parent are
concurrently executing the Parent Stockholder Voting Agreement pursuant to which
each such holder party thereto is agreeing to vote for the Capital Increase as
an inducement to the Company to enter into and execute the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote.
Each Stockholder hereby agrees (for itself and not as to any other
Stockholder) that, during the term of this Agreement, such Stockholder shall,
from time to time, at any meeting (whether annual or special and whether or not
an adjourned or postponed meeting) of stockholders of the Company, however
called, or in connection with any written consent of the holders of Company
Common Stock, in either case, prior to the earlier of the Effective Time and the
termination of this Agreement, appear at such meeting or otherwise cause the
Company Common Stock to be counted as present thereat for purposes of
establishing a quorum, and such Stockholder shall vote or consent (or cause to
be voted or consented), in person or by proxy, all Company Common Stock, and any
other voting securities of the Company (whether acquired heretofore or
hereafter) that are beneficially owned by such Stockholder or its wholly-owned
affiliates (within the meaning of Rule 12b-2 under the 0000 Xxx) or as to which
such Stockholder has, directly or indirectly, the right to vote or direct the
voting, in favor of the approval and adoption of the Merger Agreement. Each
Stockholder agrees, during the period commencing on the date hereof and ending
on the earlier of the Effective Time and the termination of this Agreement, not
to, and not to permit any of its wholly-owned affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote of the Company, if
such consent or vote by the stockholders of the Company would be inconsistent
with or frustrate the purposes or terms this Agreement or the Merger Agreement.
In furtherance and not in limitation of the foregoing, each
Stockholder hereby grants to, and appoints, Parent and each of Xxxxxxx Xxxxxx
and Xxx Xxxxxxxxxxx in their respective capacities as officers of Parent, and
any individual who shall hereafter succeed to any such officer of Parent, and
any other designee of Parent, each of them individually, its irrevocable proxy
and attorney-in-fact (with full power of substitution) to vote the Company
Common Stock as indicated in this Section 1. Each Stockholder intends this proxy
to be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy.
Each Stockholder hereby revokes any and all previous proxies with
respect to its Company Common Stock or any other voting securities of the
Company that may relate to the approval of the Merger Agreement.
Section 2. Restriction on Transfer, Proxies and Non-Interference.
Except as contemplated by this Agreement, each Stockholder agrees not to,
directly or indirectly, (i) 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 the offer for
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
(each, a "Disposition") of, any or all of the Company Shares or any interest
therein; (ii) grant any proxies or powers of attorney, deposit any Company
Shares into a voting trust or enter into a voting agreement with respect to any
Company Shares; or (iii) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect, or have the
effect of preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Agreement or the Company from performing
the Company's obligations under the Merger Agreement.
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Section 3. Restriction on Transfer of Shares Parent ADSs. Each
Stockholder agrees (a) not to effect any Disposition during the first one
hundred eighty (180) days following the Effective Time of an aggregate number of
Parent ADSs in excess of fifty (50%) percent of the Net Parent ADSs (as defined
below) and (b) not to effect any Disposition during the first ninety (90) days
following the Effective Time of an aggregate number of Parent ADSs in excess of
the number of Parent ADSs deliverable by such Stockholder pursuant to the
Forward Purchase Contracts (as defined below), excluding (in the case of clause
(b) only) any Parent ADSs sold pursuant to the immediately following sentence.
During the period of ninety (90) days following the Effective Time, Parent shall
use reasonable best efforts to facilitate or arrange a third party placement or
underwriting of up to 50% of the Net Parent ADSs on terms acceptable to the
Stockholders, with all out-of-pocket costs and expenses incurred in connection
with any such placement or underwriting to be paid by Parent (and any
underwriting commission or discount paid by the Stockholders). The Parent agrees
that it will cooperate with the Stockholders and file any resale prospectus or
registration statement as may reasonably be requested by the Stockholders with
respect to the Parent ADSs received by the Stockholders in the Merger until such
time as the Parent ADSs may be sold without restrictions under Rule 145(d), with
all out-of-pocket costs and expenses incurred in connection with any such resale
prospectus or registration statement to be paid by Parent (and any underwriting
commission or discount paid by the Stockholders). In addition, in connection
with the engagement of the custodian Parent will use its reasonable best efforts
to require the custodian under the ADR program to waive any deposit or withdraw
fee requirements with respect to the Parent ADS, received by the Stockholders in
the Merger. For purposes of this Agreement, "Net Parent ADSs" means the
difference of (i) the number of Parent ADSs received by such Stockholder in the
Merger minus (ii) the number of Parent ADSs deliverable by such Stockholder
pursuant to the Forward Purchase Contracts. For purposes hereof, "Forward
Purchase Contracts" means (i) the Forward Purchase Contract dated September 18,
1997 among the Xxxxxx Strypes Trust, the Bank of New York, as collateral agent
and administrator, and D.M.S. Endowment, LLC, X.X. Xxxxxx, LLC, X.X. Xxxxxxx,
LLC and USN College Marketing, L.P. and (ii) the Purchase Agreements dated as of
July 29, 1998 between Bear, Xxxxxxx & Co. Inc. and each of Xxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx and USN College Marketing, L.P., respectively. Unless the
Disposition of any Parent ADSs received by the Stockholders in the Merger is
permitted pursuant to this Section 3, the certificates representing such Parent
ADSs will bear an appropriate legend with respect to the restrictions set forth
in this Section 3, and stop transfer instructions will be given to the transfer
agent of Parent with respect to such Parent ADSs.
Section 4. Non-Solicitation. Each Stockholder shall comply in all
respects with the non-solicitation and other provisions of Section 5.05 of the
Merger Agreement and the other provisions of the Merger Agreement related
thereto, and shall not take any of the actions or do any of the things
restricted or otherwise prohibited thereby.
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Section 5. Further Assurances. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of its obligations under this Agreement.
Section 6. Representations and Warranties of Parent. Parent
represents and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of
Parent, representing all necessary corporate action on the part of
Parent for the execution and performance hereof and thereof by
Parent (no action by the stockholders of Parent being required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of Parent.
(c) This Agreement constitutes the valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms.
(d) The execution and delivery of this Agreement by Parent does not
violate or breach, and will not give rise to any violation or
breach, of Parent's organizational documents, or bylaws, or, except
as will not materially impair its ability to effectuate, carry out
or comply with all of the terms of this Agreement or the Merger
Agreement, any applicable law, Governmental Authority approval or
contract by which Parent or its subsidiaries or their respective
assets or properties may be bound.
Section 7. Representations and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder only, represents and warrants to Parent as
follows:
(a) Schedule I sets forth, opposite each Stockholder's name, the number
and type of Company Common Stock of which such Stockholder is the
record or beneficial owner and the number of votes per share to
which the Stockholder is entitled with respect to the Merger
Agreement. Such Stockholder is the lawful owner of such Company
Common Stock and has the sole power to vote (or cause to be voted)
the Company Shares as set forth in this Agreement. Except as set
forth on such Schedule I, neither such Stockholder nor any of its
wholly owned affiliates owns or holds any rights to acquire any
additional shares of any class of Company Common Stock or other
securities of the Company or any interest therein or any voting
rights with respect to any additional shares of any class of Company
Common Stock or any other securities of the Company.
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of such Stockholder or, if the Stockholder is a
natural person, the Stockholder has the legal capacity to execute
this Agreement.
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(c) This Agreement constitutes the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with
its terms.
(d) The execution and delivery of this Agreement by such Stockholder do
not violate or breach, and will not give rise to any violation or
breach, of such Stockholder's organizational documents, trust
instrument or partnership agreement, to the extent applicable, or,
except as will not materially impair the ability of such Stockholder
to effectuate, carry out or comply with all of the terms of this
Agreement, any applicable law, third party consent, approval,
filing, registration or similar requirement of any governmental
authority or any agreement or contract by which such Stockholder or
its assets or properties are bound.
Section 8. Effectiveness and Termination. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its obligations hereunder, none of the parties hereto
shall have any further obligation or liability hereunder. This Agreement shall
continue in full force and effect despite any amendment or other modification
of, or any consent or waiver under, the Merger Agreement; provided, however, (A)
that any amendment by the parties to the Merger Agreement to (x) the Exchange
Ratio or the Merger Consideration (as defined in Section 2.01(a) and Section
2.02(b), respectively, of the Merger Agreement), (y) Section 5.05 of the Merger
Agreement (including the definition of "Acquisition Proposal" set forth in
Section 5.05(c) thereof), or (z) Article 7 of the Merger Agreement entitled
"Termination" or (B) the waiver on or prior to the Closing Date by the Company
of any material condition precedent set forth in Article 6 of the Merger
Agreement, shall require the written consent of the Stockholders, failing which
this Agreement may be terminated in writing by any Stockholder who has not
consented to such amendment or such waiver. In any event, if the Effective Time
shall not have occurred on or before the End Date, this Agreement may be
terminated in writing by any Stockholder and it shall be of no further force or
effect as to such Stockholder.
Section 9. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, by cable, telegram, confirmed facsimile or telex, or by
first class mail (postage prepaid, return receipt requested), to the
other party as follows:
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if to
Parent, to:
Havas Advertising
00 xxx xx Xxxxxxxx
00000 Xxxxxxxxx-Xxxxxx Xxxxx
Xxxxxx
with a
copy to:
Xxxxx & Xxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention:Xxxxx X. Xxxxxxxxx
J. Xxxxxx Xxxxxxx, Xx.
if to any Stockholder, to the address set forth on Schedule I hereto
with respect to such Stockholder:
with a copy to
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may
have previously furnished to the other in writing in the manner set forth above.
(b) Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
(d) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. This Agreement
shall be binding upon and inure solely to the benefit of
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each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the fullest
extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without regard to
the principles or policies of conflicts of laws thereof.
(g) Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party.
(h) Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or
otherwise), without the prior written consent of the other parties
hereto and the written undertaking of the assignee to be bound by
the terms of this Agreement, and any attempt to make any such
assignment without such consent shall be null and void. Subject to
the preceding sentence, this Agreement will be binding upon, inure
to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of Parent and each
Stockholder irrevocably agrees that any legal action or proceeding
with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or
its successors or assigns may be brought and determined in any
Federal court located in the State of Delaware or any Delaware state
court, and each of Parent and each Stockholder hereby irrevocably
submits with regard to any such action or proceeding for itself and
in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of Parent and
each Stockholder hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise,
in any action or proceeding with respect to this Agreement, (a) any
claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve
process in accordance with this Section 9(i), (b) that it or its
property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through
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service of notice, attachment prior to judgment, attachment in aid
of execution of judgment, execution of judgment or otherwise), and
(c) to the fullest extent permitted by applicable law, that (i) the
suit, action or proceeding in any such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts.
(j) Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not
specifically enforced, and they therefore consent that the rights
and obligations of the parties under this Agreement may be enforced
by a decree of specific performance issued by a court of competent
jurisdiction. Such remedy shall, however, not be exclusive and,
shall be in addition to any other remedies which any party may have
under this Agreement or otherwise.
(k) Expenses. Each of Parent and each Stockholder shall bear its own
expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
(l) Action in Stockholder Capacity Only. No Stockholder makes any
agreement or understanding herein as a director or officer of the
Company or in any capacity other than as a stockholder of the
Company. Each Stockholder signs solely in his/her capacity as a
record holder and beneficial owner of Company Shares and nothing
herein shall limit or affect any actions taken by a representative
of such Stockholder in such representative's capacity as an officer
or director of the Company.
(m) Obligations Several. The obligations of each Stockholder under this
Agreement shall be several and not joint. No Stockholder shall have
any liability, duty or obligation arising out of or resulting from
any failure by any other Stockholder (or any Affiliate thereof) to
comply with the terms and conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO COMPANY STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Company
Stockholder Voting Agreement as of the date first above written.
PARENT:
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HAVAS ADVERTISING
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Director-General
STOCKHOLDERS:
------------
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxxxxx
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XXXXXXXX X. XXXXXXXXX
/s/ Xxxx Xxxxxxx
------------------------------------------
XXXX XXXXXXX
USN COLLEGE MARKETING, L.P.
By: USN College Marketing, Inc.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: President
D.M.S. Endowment, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
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X.X. Xxxxxx, LLC
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Member
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Schedule I
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Ownership of Company Common Stock
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Name and Address Class of Company
of Stockholder Common Stock Number of Shares
-------------- ------------ ----------------
Xxxxxx X. Xxxxxx SNC 6,478,123
x/x Xxxx xx Xxxxxxx
0000 Xxxxx Xxxxx XXXX 1,614,531
Bethesda, Maryland
Xxxxxxx X. Xxxxxx SNC 1,935,490
00000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx CIRC 481,372
D.M.S. Endowment, LLC SNC 4,337,976
c/x Xxxxxx Communications, Inc.
0000 Xxxxxxxxx Xxxxx XXXX 1,084,494
Xxxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxx SNC 1,125,303
X.X. Xxxxxx, LLC
x/x Xxx Xxxxx Xxxx XXXX 281,325
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
USN College Marketing L.P. SNC 6,085,539
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 CIRC 1,521,384
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