EXHIBIT 10.5
AMENDED AND RESTATED
VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (this "AGREEMENT") is
entered into as of October 5, 2001, by and among Xxxxx Xxxxxxx, Xxxx Xxxxx,
Xxxxxx Xxxxx, (collectively, Xxxxx Xxxxxxx, Xxxx Xxxxx and Xxxxxx Xxxxx, the
"MANAGEMENT DIRECTORS" and each a "MANAGEMENT DIRECTOR"), Xxxxxx Xxxxxxxxx, (the
"SELLER DIRECTOR"), , CEA Capital Partners USA, L.P., a Delaware limited
partnership ("CEA CAPITAL"), CEA Capital Partners USA CI L.P., a Cayman Island
limited partnership ("CEA CAPITAL CI"), Alta Subordinated Debt Partners III,
L.P., a Delaware limited partnership ("ALTA SDP"), Alta Comm S by S, LLC, a
Delaware limited liability company ("ALTA SS"), Alta Communications VI, L.P. a
Delaware limited partnership ("ALTA VI"), and TCW Shared Opportunity Fund II,
L.P., a Delaware limited partnership ("TCW SHOPII"), TCW Leveraged Income Trust,
L.P., a Delaware limited partnership ("TCW-LINC") (collectively, CEA Capital,
CEA Capital CI, Alta SDP, Alta SS, Alta VI, TCW SHOPII and TCW-LINC, the
"INVESTOR STOCKHOLDERS" and each an "INVESTOR STOCKHOLDER") and ACME
Communications, Inc. (the "COMPANY") to amend and restate the long-term Voting
Agreement by and among the Management Directors, Seller Director, Investor
Stockholders and Company, dated as of September 29, 1999 (the "PRIOR
AGREEMENT").
RECITALS
A. WHEREAS, the Company commenced its initial public offering
of shares of its common stock to the public (the "IPO") on September 29, 1999.
B. WHEREAS, in connection with the IPO and the corporate
reorganization before the IPO, the Company filed both a Form 316 "short-form"
application and a Form 315 "long-form" application (the "Long- Form
Application") with the Federal Communications Commission (the "FCC").
C. WHEREAS, in connection with the IPO and expiration of the
Form 315 application, the parties agreed to enter into the Prior Agreement upon
the terms and conditions set forth therein.
D. WHEREAS, certain of the parties to the Prior Agreement
desire to amend and restate the Prior Agreement in its entirety in order to
extend the term of such agreement and to make certain other modifications to the
terms and conditions of the Prior Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises made in this
Agreement, the parties hereby agree to amend and restate the Prior Agreement in
its entirety as follows:
1
1. ELECTION OF DIRECTORS
1.1 ELECTION OF MANAGEMENT DIRECTOR DESIGNEES. During the Term:
1.1.1 Each Investor Stockholder, each Investor Stockholder Designee (as
defined below) and each Seller Director agrees to vote or cause to be
voted all of the shares of any class of the Company's capital stock that
it or he owns or for which it or he controls the vote in favor of the
election to the Company's board of directors (the "BOARD") of each of
three individuals designated by the Management Directors (the
"MANAGEMENT DIRECTOR DESIGNEES"). The initial Management Director
Designees are Xxxxx Xxxxxxx, Xxxx Xxxxx and Xxxxxx Xxxxx.
1.1.2 Upon a vacancy in the directorship by any Management Director
Designee during the term of this Agreement, a majority of the Management
Directors Designees may select a designee to fill such vacancy. The
Management Directors must then notify each of the Investor Stockholders
and Investor Stockholder Designees (only if such Investor Stockholder
Designee owns or controls the vote of any class of the Company's common
stock) and each Seller Director in writing of the identity of the
individual designated to fill such vacancy (a "MANAGEMENT DESIGNATION
NOTICE") and the Investor Stockholders and, if applicable, the Investor
Stockholder Designees in their respective capacities as stockholders of
the Company, and the Seller Director will take any action necessary to
cause such designee to be elected as a director to fill such vacancy
within 30 days after receipt of a Management Designation Notice.
1.1.3 Each Investor Stockholder and each Seller Director hereby approves
Xxxxx Xxxxxxx, Xxxx Xxxxx and Xxxxxx Xxxxx as the initial Management
Director Designees.
1.2 ELECTION OF INVESTOR STOCKHOLDER DESIGNEES. "INVESTOR STOCKHOLDER
DESIGNEE" shall mean the individual designated by the applicable
Investor Stockholder as its designee for election to the Board. During
the Term:
1.2.1 Each Investor Stockholder, Investor Stockholder Designee, Seller
Director, Management Director and Management Director Designee agrees to
vote or cause to be voted all of the shares of any class of the
Company's capital stock that it or he owns or for which it or he
controls the vote in favor of the election to the Board of Investor
Stockholder Designees.
1.2.2 If the amount of common stock that is owned or for which the vote
is controlled by an Investor Stockholder is less than 75% of the capital
stock of the Company that such Investor Stockholder owned or for which
such Investor Stockholder controlled the vote on the closing date of the
IPO, no other party to this agreement will be required to vote in favor
of the election to the Board of the designee of such Investor
Stockholders; provided, however, that nothing contained
2
herein releases such Investor Stockholder Designee from his voting
obligations under this Agreement so long as such Investor Stockholder
Designee remains on the Board.
1.2.2 The initial Investor Stockholder Designee for each of the Investor
Stockholders is as set forth below:
Investor Stockholder Designee
-------------------- --------
Alta Communications Xxxxx XxXxxxx
CEA Capital Xxx Xxxxxx
Trust Company of the West Xxxxxx Xxxxxx
1.2.3 Upon a vacancy in the directorship by any Investor Stockholder
Designee during the term of this Agreement, the applicable Investor
Stockholders may select a designee to fill such vacancy. The Investor
Stockholder must then notify each of the parties to this agreement, in
writing, of the identity of the individual designated to fill such
vacancy (an "INVESTOR DESIGNATION NOTICE") and the Management Directors
and, if applicable, the Management Director Designees in their
respective capacities as stockholders of the Company, the Seller
Director, and the other Investor Stockholder Designees will take any
action necessary to cause such designee to be elected as a director to
fill such vacancy within 30 days after receipt of an Investor
Designation Notice.
1.2.1 Each Management Director and Seller Director hereby approves
Xxxxxx Xxxxxx, Xxx Xxxxxx and Xxxxx XxXxxxx as the initial Investor
Stockholder Designees.
1.3 ELECTION OF SELLER DIRECTOR. During the Term:
1.3.1 Each Investor Stockholder, Investor Stockholder Designee,
Management Director and Management Director Designee agrees to vote or
cause to be voted all of the shares of any class of the Company's
capital stock that it or he owns or for which it or he controls the vote
in favor of the election to the Board of Xxxxxx Xxxxxxxxx.
1.3.2 Each Investor Stockholder and each Management Director hereby
approves Xxxxxx Xxxxxxxxx as the Seller Director.
1.3.3 If the amount of common stock that is owned or for which the vote
is controlled by Seller Director equals less than 75% of the capital
stock of the Company that such Seller Director owned or for which such
Seller Director controlled the vote on the closing date of the IPO, no
Management Director, Management Director Designee, Investor Stockholder
or Investor Stockholder Designee will be required to vote in favor of
the election to the board of directors of such Seller Director;
provided, however, that nothing contained herein releases such
3
Seller Director from his voting obligations under this Agreement so long
as such Seller Director remains on the Board.
1.4 REMOVAL. Except as may be necessary to enforce Section 1.6.1 below, each
Management Director, Management Director Designee, Investor Stockholder,
Investor Stockholder Designee and Seller Director agrees during the Term
not to vote for the removal as a Company director of any other person
who is or becomes a party to this Agreement.
1.5 VACANCIES. Each party to this Agreement agrees during the Term to use it
best efforts to ensure that there are enough vacancies on the Board for
the persons voted in favor of election pursuant to this Agreement.
1.6 RESIGNATION.
1.6.1 While (a) rendering services to the Company as a Company director,
none of the Management Directors, Management Director Designees,
Investor Stockholder Designees or Seller Director (individually, a
"DIRECTOR" and collectively, the "DIRECTORS") and (b) while any Investor
Stockholder has an Investor Stockholder Designee as a Company director,
no Investor Stockholder, may, without the express written consent of the
Board, directly or indirectly, engage in any activity that is, or
participate or invest in or assist (whether as owner, part-owner,
stockholder, partner, director, officer, trustee, employee, agent,
independent contractor or consultant, or in any other capacity) a
Competitive Enterprise. "Competitive Enterprise" means any entity that
operates television stations, cable distribution systems or other video
broadcast or distribution enterprises in a designated market area
("DMA") where the Company or any affiliate (as defined in the Securities
Exchange Act of 1934) of the Company owns and/or operates television
stations. Notwithstanding the foregoing, a Director or Investor
Stockholder may own equity interests in or control the vote of equity
interests in any publicly-held television enterprise engaged in a
Competitive Enterprise, provided, that such Director or Investor
Stockholder owns or controls the vote of less than 5% of the outstanding
equity interests in such Competitive Enterprise.
1.6.2 If any Director or Investor Stockholder directly or indirectly,
engages in any activity that is, or participates or invests in or
assists (whether as owner, part-owner, stockholder, partner, director,
officer, trustee, employee, agent, independent contractor or consultant,
or in any other capacity) a Competitive Enterprise (other than as
permitted pursuant to the last sentence of Section 1.6.1 above), then
such Director agrees to immediately resign from the Board and any
committee of the Board on which he serves and such Investor Stockholder
agrees to cause its Investor Stockholder Designee to immediately resign
from the Board and any committee of the Board.
1.7 VOTING RELEASE. Notwithstanding anything in Sections 1.1, 1.2 or 1.3 to
the contrary, if a Company director or Investor Stockholder is in breach
of Section 1.6.1 above, then no Management Director, Management Director
Designee, Investor Stockholder,
4
Investor Stockholder Designee or Seller Director (as applicable) will be
required to vote or cause to be voted any of the shares of any class of
the Company's capital stock that it or he owns or for which it or he
controls the vote in favor of the election to the Board of such
breaching director or Investor Stockholder Designee of the breaching
Investor Stockholder.
2. TERM
2.1 The "Term" of this Agreement will commence on the date that the FCC's
final approval of the Long-Form Application is no longer subject to
appeal or reconsideration, and this Agreement and the obligations of the
parties hereunder will terminate on the fourth anniversary of the
closing date of the IPO, unless sooner terminated pursuant to the
provisions hereof.
3. MISCELLANEOUS
3.1 NOTICES. All notices, demands and requests required by this Agreement
will be in writing and will be deemed to have been given for all
purposes: (a) upon personal delivery; (b) one day after being sent, when
sent by professional overnight courier service from and to locations
within the continental United States; (c) five days after posting when
sent by registered or certified mail; or (d) on the date of transmission
when sent by facsimile with confirmation of receipt, addressed to:
If to the Company:
Xxx Xxxxx
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
fax (000) 000-0000
If to any other party, to the respective address listed
on the signature pages hereto;
or to such other address or to such other person as any party will have last
designated by such notice to the other parties.
3.2 SEVERABILITY. The provisions of this Agreement are severable. The
invalidity, in whole or in part, of any provision of this Agreement will
not affect the validity or enforceability of any other of its
provisions. If one or more provisions are declared invalid or
unenforceable, the remaining provisions will remain in full force and
effect and will be construed in the broadest possible manner to
effectuate the purposes hereof, unless such change would adversely
affect one party to this agreement (defined below) vis-a-vis another
party to this agreement, in which case this Agreement will not be deemed
severable. The parties further agree to replace such void or
unenforceable provisions of this Agreement with valid and enforceable
5
provisions that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provisions.
3.3 AMENDMENT. The provisions of this Agreement may not be amended, modified
or supplemented, and waivers of or consents to departures from the
provisions hereof may not be given, without the written consent of each
of the parties.
3.4 INJUNCTIVE RELIEF. Without intending to limit the remedies available to
the parties, the parties acknowledge that a breach of any of the
covenants contained in this Agreement may result in material irreparable
injury to the other parties for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the
other parties will be entitled to obtain a temporary restraining order
and a preliminary or permanent injunction restraining or requiring
actions prohibited or required by this Agreement or such other relief as
may be required to enforce specifically any of the covenants of this
Agreement.
3.5 GOVERNING LAW. This Agreement will be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
3.6 ASSIGNMENT; SUCCESSORS. This Agreement may not be assigned by any party
without prior written consent of a majority of the parties, which
consent must not be unreasonably withheld. This Agreement will be
binding upon and will inure to the benefit of the parties hereto and
will be binding upon and will inure to the benefit of their respective
successors and assigns.
[Rest of Page Intentionally Left Blank]
6
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
---------------------------
Address:
0000 Xxxx 0xx Xx., Xxx. 000X
Xxxxx Xxx, XX 00000
XXXX XXXXX
/s/ Xxxx Xxxxx
---------------------------
Address:
0000 Xxxx 0xx Xx., Xxx. 000X
Xxxxx Xxx, XX 00000
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
---------------------------
Address:
0000 Xxxx 0xx Xx., Xxx. 000X
Xxxxx Xxx, XX 00000
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------
Address:
Second Generation Place
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
7
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
----------------------------------------
Address:
Trust Company of the West
00000 Xxxxx Xxxxxx Xxxx., Xxx. 0000
Xxx Xxxxxxx, XX 00000
XXX XXXXXX
/s/ Xxx Xxxxxx
-----------------------------------------
Address:
Seaport Capital
000 Xxxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
XXXXX XXXXXXX
/s/ Xxxxx XxXxxxx
----------------------------------------
Address:
c/o Xxxx Xxxx Deleage & Co., Inc.
000 Xxxxxxxxx Xx.
Xxxxx 00
Xxxxxx, XX 00000
Attn: Xxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
ACME COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
8
Alta Communications VI, L.P.
By: Alta Communications VI Management
Partners, L.P., its general partner
By: /s/ Xxxxx XxXxxxx
----------------------------------------
Name: Xxxxx XxXxxxx
Title: G.P.
c/o Xxxx Xxxx Deleage & Co. Inc.
000 Xxxxxxxxx Xx.
Xxxxx 00
Xxxxxx, XX 00000
Attn: Xxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
ALTA-COMM S BY S, LLC
By: /s/ Xxxxx XxXxxxx
----------------------------------------
Name: Xxxxx XxXxxxx, a member
c/o Xxxx Xxxx Deleage & Co., Inc.
000 Xxxxxxxxx Xx.
Xxxxx 00
Xxxxxx, XX 00000
Attn: Xxxxx X. XxXxxxx
Tel: (000) 000-0000
Fax: (000) 0000-0000
Alta Subordinated Debt Partners III, L.P.
By: Alta Subordinated Debt Management III, L.P.,
its general partner
By: /s/ Xxxxx XxXxxxx
----------------------------------------
Name: Xxxxx XxXxxxx
Title: G.P.
c/o Xxxx Xxxx Deleage & Co., Inc.
000 Xxxxxxxxx Xx.
Xxxxx 00
Xxxxxx, XX 00000
9
CEA Capital Partners USA, L.P.
By: Seaport Capital, LLC,
its authorized representative
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title Executive Vice President
c/o Seaport Capital, LLC
000 Xxxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CEA Capital Partners USA CI L.P.
By: Seaport Capital, LLC,
its authorized representative
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title Executive Vice President
c/o Seaport Capital, LLC
000 Xxxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
10
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company,
its Investment Manager
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Tell, Jr.
----------------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
Address:
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Investment Management Company,
its Investment Manager
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx X. Tell, Jr.
----------------------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
Address:
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
11
