EXHIBIT 10
SHAREHOLDER VOTING AGREEMENT
SHAREHOLDER VOTING AGREEMENT (this "AGREEMENT"), dated as of December 28,
2000, among Xxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), and those
entities listed on the signature page hereof (each, a "SHAREHOLDER" and,
collectively, the "SHAREHOLDERS").
WHEREAS, PRIMEDIA Inc., a Delaware corporation ("PRIMEDIA"), Abracadabra
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Primedia ("MERGER SUB"), and the Company have entered into an Agreement and Plan
of Merger (the "MERGER AGREEMENT") (capitalized terms used herein and not
defined shall have the meanings set forth in the Merger Agreement), dated as of
October 29, 2000; and
WHEREAS, each Shareholder beneficially owns the number of shares of common
stock, par value $0.001 per share, of the Company set forth below such
Shareholder's name on the signature page hereof (all such shares, together with
any other shares of capital stock of the Company such Shareholder acquires after
the date hereof, including, without limitation, as a result of a stock dividend,
stock split, recapitalization, combination, reclassification, exchange, or
change of such shares, or upon exercise or conversion of any securities, the
"SHARES").
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereby agree as follows
Section 1. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder severally represents and warrants to the Company as follows:
(a) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by such Shareholder, and no other proceedings on the part of such
Shareholder are necessary to authorize this Agreement or to consummate the
transactions so contemplated.
(b) This Agreement has been duly and validly executed and delivered by such
Shareholder and, assuming this Agreement constitutes a valid and binding
obligation of the Company, constitutes a legal, valid and binding obligation of
such Shareholder enforceable against such Shareholder in accordance with its
terms (except insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by principles governing the availability of equitable
remedies).
(c) The execution, delivery and performance by such Shareholder of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) contravene or conflict with its organizational documents; (ii)
contravene or conflict with or constitute a violation of any provision of any
law, regulation, judgment, injunction, order or decree binding upon or
applicable to such Shareholder or any of its properties; or (iii) conflict with,
or result in the breach or termination of or constitute a default (with or
without the giving of notice or the lapse of time or both) under, or give
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rise to any right of termination, cancellation, or loss of any benefit to which
such Shareholder is entitled under any provision of any agreement, contract,
license or other instrument binding upon such Shareholder or any of its
properties, or allow the acceleration of the performance of any obligation of
such Shareholder under any indenture, mortgage deed of trust, lease, license,
contract, instrument or other agreement to which such Shareholder is a party or
by which such Shareholder, its assets or properties is subject or bound, other
than such contraventions, conflicts, violations, breaches, defaults or other
occurrences that would not reasonably be expected to prevent, delay or impair
such Shareholder's ability to consummate the transactions contemplated by this
Agreement.
(d) Other than any filings required by the Exchange Act or the rules and
regulations promulgated thereunder, the execution, delivery and performance by
such Shareholder of this Agreement and the consummation of the transactions
contemplated hereby by such Shareholder require no filings, notices,
declarations, consents or other actions to be made by such Shareholder with, nor
are any approvals or other confirmations or consents required to be obtained by
such Shareholder from, any governmental authority.
(e) As of the date hereof, there is no action, suit, claim, investigation
or proceeding pending or, to the knowledge of such Shareholder, threatened
against such Shareholder or its properties before any court or arbitrator or any
governmental authority which challenges or seeks to prevent, enjoin, alter or
delay the Merger or any of the other transactions contemplated hereby or by the
Merger Agreement. As of the date hereof, such Shareholder is not, and none of
its properties is, subject to any order, writ, judgment, injunction, decree,
determination or award which would prevent, delay or impair the consummation of
the transactions contemplated hereby.
(f) Such Shareholder is, and at the Effective Time will be, the sole record
and beneficial owner of and has, and at the Effective Time such Shareholder will
have, good and valid title to the Shares held by such Shareholder, free and
clear of any Liens, except for any Liens arising hereunder. Such Shareholder
has, and at the Effective Time will have, the power to vote, dispose of and
otherwise transfer such Shares without the approval, consent or other action of
any person.
(g) There are no options or rights to acquire, or understandings or
arrangements to which such Shareholder is a party relating to the Shares held by
such Shareholder, other than this Agreement.
(h) The Shares indicated below such Shareholder's name on the signature
page hereof represent all of the shares of Company Common Stock beneficially
owned (within the meaning of Rule 13d-3 under the Exchange Act) by such
Shareholder.
(i) Such Shareholder has received and read the preliminary Joint Proxy
Statement--Consent Solicitation--Prospectus of the Company and Primedia, filed
on December 7, 2000, relating to the Merger (the "PRELIMINARY PROXY").
Section 2. AGREEMENT TO VOTE; PROXY. Each Shareholder agrees with, and
covenants to, the Company as follows:
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(a) At any meeting of shareholders of the Company called to vote upon the
Merger, the Merger Agreement or the other transactions contemplated by the
Merger Agreement or at which a vote, consent or other approval with respect to
the Merger, the Merger Agreement or the other transactions contemplated by the
Merger Agreement is sought, such Shareholder shall vote (or cause to be voted)
or shall consent, execute a consent or cause to be executed a consent in respect
of the Shares held by such Shareholder in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger Agreement;
(b) At any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, such Shareholder shall vote (or cause to be voted) the
Shares held by such Shareholder against (A) any Acquisition Proposal or (B) any
amendment of the Company's Certificate of Incorporation or By-laws which
amendment would in any manner prevent or materially impede, interfere with or
delay the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement; and
(c) Such Shareholder shall grant to, and appoint, Xxxxx X. Xxxxxx and Xxxx
X. Xxxxxxxxx or any other individual who is designated by the Company, until the
termination of this Agreement pursuant to Section 11, an irrevocable proxy,
coupled with an interest, and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Shareholder, with
respect to the Shares held by such Shareholder, to vote the Shares held by such
Shareholder, or grant or execute a consent or approval, in complete discretion
of the Company, at any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote, consent
or other approval is sought in accordance with paragraph (a) of this Section 2.
Such Shareholder will take such further action and execute such other
instruments as may be necessary to effect the intent of this proxy, and hereby
revokes any proxy previously granted by it with respect to the Shares held by
it. Such Shareholder agrees that this Agreement, including the provisions of
this Section 2, will be recorded in the books and records of the Company.
Notwithstanding the foregoing, nothing in this Agreement shall limit or affect
such Shareholder's ability to vote in his, her or its sole discretion on, and
such Shareholder shall not grant or be deemed to grant any proxy or power of
attorney with respect to any matter other than those matters specifically
referred to in Section 2(a) above;
PROVIDED, HOWEVER, that such Shareholder shall not be obligated to so vote and
no such proxy shall be granted unless, prior to any such meeting, such
Shareholder shall have received the definitive Joint Proxy Statement - Consent
Solicitation - Prospectus of the Company and Primedia relating to the Merger and
the information contained in such definitive Joint Proxy Statement - Consent
Solicitation - Prospectus is not materially adversely different from the
information contained in the Preliminary Proxy.
Section 3. DISPOSITION OF SHARES. No Shareholder shall, without the prior
written consent of the Company, directly or indirectly, during the term of this
Agreement (i) grant or enter into any Lien, power of attorney or other agreement
or arrangement with respect to the voting of the Shares held by it, (ii) except
by operation of the laws of inheritance, sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or
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indirect sale, assignment, transfer, encumbrance or other disposition of any of
the Shares held by it or (iii) take any other action that would in any way
restrict, limit or interfere with performance of its obligations hereunder or
the transactions contemplated hereby. Each Shareholder hereby irrevocably waives
any rights of appraisal or rights to dissent from the Merger that such
Shareholder may have. Any purported transfer in violation of the foregoing shall
be null and void.
Section 4. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York.
Section 5. NOTICES. Notices and other communications under this Agreement
shall be in writing and shall be deemed given as set forth in Section 8.2 of the
Merger Agreement, except that each Shareholder shall receive such notices at the
address set forth below:
Abra LLC
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxxx
Section 6. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, agreements, promises, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter and is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder. This Agreement may be amended only by a written instrument
duly executed by the Company and the Shareholders.
Section 7. ASSIGNMENT. Notwithstanding any other provision of this
Agreement, this Agreement shall not be assignable by any party hereto. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable against, (i) as to each Shareholder, such
Shareholder and such Shareholder's beneficiaries and representatives, and (ii)
the Company and their successors and permitted assigns. Each Shareholder agrees
that this Agreement and the obligations of such Shareholder hereunder shall
attach to such Shareholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass by the
laws of inheritance.
Section 8. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity and enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and unenforceable, the intent and purpose of such invalid and
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or
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circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity and unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
Section 9. STOP TRANSFER ORDER. In furtherance of this Agreement,
concurrently herewith each Shareholder shall and hereby does authorize the
Company to notify its transfer agent that there is a stop transfer order with
respect to all of the Shares subject to the terms of this Agreement (and that
this Agreement places limits on the voting and transfer of the Shares). Each
Shareholder further agrees to cause the Company not to register the transfer of
any certificate representing any of such Shareholder's Shares unless such
transfer is made in accordance with the terms of this Agreement.
Section 10. FURTHER ACTION. From time to time, at the request of the
Company and without further consideration, each Shareholder shall execute and
deliver to the Company such documents and take such action as the Company may
reasonably request in order to consummate the transactions contemplated hereby.
Section 11. TERMINATION. This Agreement shall terminate and be of no
further force and effect upon the earlier to occur of (a) the Effective Time and
(b) upon the termination of the Merger Agreement pursuant to its terms.
Section 12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
Section 13. SPECIFIC PERFORMANCE. The Shareholders and the Company
acknowledge that this Agreement and the Shares are unique and that no party will
have an adequate remedy at law if any other party breaches any covenant herein
or fails to perform its obligations hereunder. Accordingly, the Shareholders and
the Company agree that the others shall have the right, in addition to any other
rights which it may have, to specific performance and equitable injunctive
relief if any party shall fail or threaten to fail to perform any of its
obligations under this Agreement.
Section 14. EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such cost or expense.
Section 15. NO WAIVER. No failure or delay by the Company to assert any of
its rights under this Agreement or otherwise shall constitute a waiver of such
rights. No single or partial exercise of any right, remedy, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. Any waiver shall be effective
only in the specific instance and for the specific purpose for which given and
shall not constitute a waiver to any subsequent or other exercise of any right,
remedy, power or privilege hereunder.
Section 16. SUBMISSION TO JURISDICTION. Each of the parties hereto
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 any other
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party hereto or its successors or assigns may be brought and determined in the
courts of the State of New York, and each party hereto hereby irrevocably
submits with regard to any such action or proceeding for itself and with respect
to its property, generally and unconditionally, to the nonexclusive jurisdiction
of the aforesaid courts. Each of the parties hereto 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 lawfully serve process, (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 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 and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
Section 17. WAIVER OF JURY TRIAL. Each party hereto hereby irrevocably and
unconditionally waives any rights to a trial by jury in any legal action or
proceeding in relation to this Agreement and for any counterclaim therein.
Section 18. INTERPRETATION. The parties hereto agree that in interpreting
this Agreement there shall be no inferences against the drafting party.
[The remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by its representatives thereunto duly authorized, all
as of the day and year first above written.
XXXXX.XXX, INC.
By: /s/ XXXXX XXXXXX
----------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and CEO
ABRA LLC
By: KKR 1996 Fund, L.P.
Its Managing Member
By: KKR Associates 1996, L.P.
Its General Partner
By: KKR 1996 GP LLC
Its General Partner
By: /s/ XXXXXXX XXXXXX
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Member
Shares Beneficially Held: 2,236,641
