VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 18, 1999 (this "Agreement"), by and
among Metromedia International Group, Inc., a Delaware corporation ("Buyer"),
News America Incorporated, a Delaware corporation, News PLD LLC, a Delaware
limited liability company (each, a "Shareholder" and, collectively, the
"Shareholders"), and for purposes of Section 5.5 only, Metromedia Company, a
Delaware general partnership ("Metromedia").
WHEREAS, PLD Telekom, Inc., a Delaware corporation (the "Company"), and
Buyer propose to enter into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), which provides for, among other things,
the merger of a wholly-owned subsidiary of Buyer with and into the Company (the
"Merger");
WHEREAS, as of the date hereof, the Shareholders are holders of record
or Beneficially Own (as defined herein) shares of common stock, par value $.01
per share ("Company Common Stock"), of the Company; and
WHEREAS, as a condition to the willingness of Buyer to enter into the
Merger Agreement, Buyer has required that each Shareholder agrees, and in order
to induce Buyer to enter into the Merger Agreement, each Shareholder has agreed,
to enter into this Agreement with respect to all of the shares of Company Common
Stock now held of record or Beneficially Owned and which may hereafter be
acquired by such Shareholder (collectively, the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 General. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement.
Section 1.2 Beneficial Ownership. For purposes of this Agreement,
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean "beneficial ownership" of such securities (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), including pursuant to any agreement, arrangement or understanding,
whether or not in writing. Without duplicative counting of the same securities
by the same holder,
2
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group"
within the meaning of Section 13(d) of the Exchange Act.
ARTICLE II
Section 2.1 Voting Agreement. Each of the Shareholders hereby agrees as
follows:
(a) to appear, or cause the holder of record on any applicable
record date with respect to any Shares Beneficially Owned by such
Shareholder (the "Record Holder") to appear, for the purpose of
obtaining a quorum at any annual or special meeting of stockholders of
the Company and at any adjournment thereof at which matters relating to
the Merger, Merger Agreement or any transaction contemplated thereby
are considered; and
(b) at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the
Company, to vote, or cause to be voted by the Record Holder, the Shares
held of record or Beneficially Owned by such Shareholder: (i) in favor
of the Merger, the Merger Agreement (as amended from time to time) and
the transactions contemplated by the Merger Agreement and (ii) against
any proposal for any extraordinary corporate transaction, such as a
recapitalization, dissolution, liquidation, or sale of assets of the
Company or any merger, consolidation or other business combination
(other than the Merger) between the Company and any Person (other than
Buyer or a subsidiary of Buyer) or any other action or agreement that
is intended or which reasonably could be expected to (x) result in a
breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement, (y)
result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled or (z) impede, interfere with,
delay, postpone or materially adversely affect the Merger and the
transactions contemplated by the Merger Agreement.
Section 2.2 No Ownership Interest. Except as set forth in Section 2.1,
nothing contained in this Voting Agreement shall be deemed to vest in Buyer any
direct or indirect ownership or incidence of ownership of or with respect to any
Shares. All rights, ownership and economic benefits of and relating to the
Shares shall remain and belong to the Shareholders, and Buyer shall have no
authority to manage, direct, restrict, regulate, govern, or administer any of
the policies or operations of the Company or exercise any power or authority to
direct the Shareholders in the voting of any of the Shares except as otherwise
provided herein, or the performance of the Shareholders' duties or
responsibilities as stockholders of the Company.
3
Section 2.3 Evaluation of Investment. Each Shareholder, by reason of
its knowledge and experience in financial and business matters, believes itself
capable of evaluating the merits and risks of the investment in shares of common
stock, par value $.01 per share, of Buyer, contemplated by the Merger Agreement.
Each of the Shareholders acknowledges receipt and review of a copy of the Merger
Agreement and all reports, registration statements, proxy statements and other
filings made by Buyer with the Securities Exchange Commission since January 1,
1996.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each of the Shareholders hereby represents and warrants, severally and
not jointly, to Buyer as follows:
Section 3.1 Authority Relative to This Agreement. Such Shareholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. Where such Shareholder is a corporation, partnership or
other entity, the execution and delivery of this Agreement by such Shareholder
and the consummation by such Shareholder of the transactions contemplated hereby
have been duly and validly authorized by the board of directors or other
governing body of such Shareholder, and no other proceedings on the part of such
Shareholder are necessary to authorize this Agreement or to consummate such
transactions and where such Shareholder is an individual, such individual has
the capacity to enter into this Agreement. This Agreement has been duly and
validly executed and delivered by such Shareholder and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of such Shareholder, enforceable against
such Shareholder in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by general principles
governing the availability of equitable remedies.
Section 3.2 No Conflict. (a) The execution and delivery of this
Agreement by such Shareholder does not, and the performance of this Agreement by
such Shareholder shall not, (i) where such Shareholder is a corporation,
partnership or other entity, conflict with or violate the organizational
documents of such Shareholder, (ii) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which such
Shareholder is a party or by which such Shareholder (or the Shares held of
record or Beneficially Owned by such Shareholder) is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Shares held of
4
record or Beneficially Owned by such Shareholder pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Shareholder is a party or by which
such Shareholder (or the Shares held of record or Beneficially Owned by such
Shareholder) is bound or affected, except, in the case of clauses (ii) and (iii)
of this Section 3.2, for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent or delay the performance by such
Shareholder of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity except for applicable
requirements, if any, of the Exchange Act and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by such Shareholder of
its obligations under this Agreement.
Section 3.3 Title to the Shares. As of the date hereof, such
Shareholder is the record or Beneficial Owner of the Shares listed opposite the
name of such Shareholder on Schedule 1 hereto. The Shares listed opposite the
name of such Shareholder on Schedule 1 hereto are all the securities of the
Company either held of record or Beneficially Owned by such Shareholder. Such
Shareholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares held of record or Beneficially
Owned by such Shareholder. The Shares listed opposite the name of such
Shareholder on Schedule 1 hereto are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreement,
limitations on such Shareholder's voting rights, charges and other encumbrances
of any nature whatsoever.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
Section 4.1 No Inconsistent Agreements. Each Shareholder hereby
represents, warrants, covenants and agrees that, except as contemplated by this
Agreement and the Merger Agreement, such Shareholder has not and shall not, and
shall not permit any Person under such Shareholder's control (including any
Record Holder) to, enter into any voting agreement or grant a proxy or power of
attorney with respect to the Shares held of record or Beneficially Owned by such
Shareholder which, in either case, is inconsistent with this Agreement.
Section 4.2 Transfer of Title. Each Shareholder hereby covenants and
agrees that such Shareholder will not, prior to the termination of this Voting
Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign,
5
pledge, hypothecate, transfer, exchange, or dispose of any Shares or options,
warrants or other convertible securities to acquire or purchase Company Common
Stock (collectively "Derivative Securities") or any other securities or rights
convertible into or exchangeable for shares of Company Common Stock, owned
either directly or indirectly by such Stockholder or with respect to which such
Stockholder has the power of disposition, whether now or hereafter acquired,
without the prior written consent of Buyer (provided nothing contained herein
will be deemed to restrict the exercise or conversion of Derivative Securities
outstanding on the date hereof), unless the Person to whom Shares or Derivative
Securities have been sold, assigned, pledged, hypothecated, transferred,
exchanged or disposed agrees to be bound by this Voting Agreement as if a party
hereto. Each Shareholder hereby agrees and consents to the entry of stop
transfer instructions by the Company against the transfer of any Shares
consistent with the terms of this Section 4.2.
ARTICLE V
MISCELLANEOUS
Section 5.1 No Solicitation. From the date hereof until the Effective
Time or, if earlier, the termination of the Merger Agreement in accordance with
its terms, the Shareholders (a) shall not have, or shall immediately terminate
any discussions with, any third party concerning a Transaction Proposal and (b)
shall not, and shall not permit any officer, director, employee, controlled
Affiliate, investment banker or other agent (in such agency capacity) of the
Shareholder to, directly or indirectly, (i) solicit, engage in discussions or
negotiate with any Person (whether such discussions or negotiations are
initiated by the Shareholder or otherwise) or take any other action intended or
designed to facilitate the efforts of any Person, other than Buyer, relating to
a Transaction Proposal, (ii) provide information with respect to the Company or
any of its subsidiaries to any Person, other than Buyer, relating to a possible
Transaction Proposal by any person other than Buyer, (iii) enter into an
agreement with any person, other than Buyer, providing for a possible
Transaction Proposal, or (iv) make or authorize any statement, recommendation or
solicitation in support of any possible Transaction Proposal by any Person,
other than by Buyer. Notwithstanding the above, the Shareholder may take any
actions in the Shareholder's role as a director or officer of the Company
permitted under the Merger Agreement.
Section 5.2 Termination. This Agreement shall terminate upon the
earlier to occur of (i) the closing of the transactions contemplated by the
Merger Agreement and (ii) the termination of the Merger Agreement in accordance
with its terms; provided, however, that nothing in this Agreement shall relieve
any party from liability for the breach of any of its representations and
warranties or the breach of any of its covenants and agreements set forth in
this Agreement which shall survive any such termination.
6
Section 5.3 Additional Shares. If, after the date hereof, a Shareholder
acquires the right to vote any additional shares of Company Common Stock (any
such shares shall be referred to herein as "Additional Shares"), including,
without limitation, upon exercise or conversion of any Derivative Security or
through any stock dividend or stock split, the provisions of this Agreement
applicable to the Shares shall be applicable to such Additional Shares as if
such Additional Shares had been outstanding Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any Person immediately upon the
acquisition by a Shareholder of record or Beneficial Ownership of such
Additional Shares.
Section 5.4 Registration Statement. Prior to the closing of the
transactions contemplated by the Merger Agreement, the Buyer shall enter into a
registration rights agreement with the Shareholders and, as contemplated
thereby, agrees to file promptly after the Registration Statement (as defined in
the Merger Agreement) is declared effective and use its reasonable best efforts
to have declared effective by the SEC not later than six months after the
Effective Time a registration statement covering the shares of common stock of
the Buyer ("Buyer Common Stock") to be received by the Shareholders in the
Merger in exchange for their Shares and use its reasonable best efforts to
maintain the effectiveness of such registration statement until the earlier of
(x) the date all such shares are disposed of and (y) two years from the date of
its effectiveness.
Section 5.5 Tag-Along Rights.
(a) In the event at any time prior to the date News America
Incorporated and its affiliates no longer Beneficially Own in excess of 5% of
the outstanding shares of Buyer Common Stock, Metromedia proposes to sell,
transfer or assign any shares of Buyer Common Stock to a non-affiliated third
party (other than a sale pursuant to an effective registration under the
Securities Act or Rule 144 promulgated under the Securities Act), Metromedia
shall have the obligation, and each of News America Incorporated, News PLD LLC
and any affiliate thereof that owns Buyer Common Stock (collectively, "News")
shall have the right (the "Tag- along Right"), to require the proposed
transferee to purchase from News a number of shares of Buyer Common Stock up to
or equal to the product (rounded up to the nearest integer) of (i) the quotient
determined by dividing the number of shares of the Buyer Common Stock held by
News by the number of shares of Buyer Common Stock owned by Metromedia, and (ii)
the number of shares of the Buyer Common Stock proposed to be transferred in the
contemplated sale, and at the same price per share and upon the same terms and
conditions offered to Metromedia. Metromedia shall give notice to News of each
proposed transfer giving rise to the Tag-along Right, at least 10 days prior to
the proposed consummation of such transfer, setting forth the maximum number of
shares of Buyer Common Stock proposed to be transferred, the name and address of
the transferee, the proposed amount of consideration and the other terms and
conditions of the transactions, and the
7
maximum number of shares News may require the transferee to purchase from such
Investor under the Tag-along Right (in accordance with the first sentence of
this Section 5.5).
(b) The Tag-along Right provided by this Section 5.5 must be
exercised by News within 5 days following the receipt of the notice required by
the preceding paragraph (a), by delivery prior to the end of such 5-day period
of a written notice to Metromedia indicating News' desire to exercise its rights
under this Section 5.5 and specifying the number of shares it desires to sell.
(c) The closing of the purchase of the shares of Buyer Common
Stock owned by News by the transferee shall be held (i) at the principal office
of the Buyer on the same day as the closing of the sale from Metromedia to the
transferee; or (ii) at such other time and place as the parties to the
applicable transaction may agree. At such closing, Metromedia and News shall
deliver certificates representing the shares of Buyer Common Stock being sold,
duly authenticated by another officer of the corporation, for transfer and
accompanied by all requisite transfer taxes, if any, and such shares of Buyer
Common Stock shall be free and clear of any Liens other than those arising
hereunder. News shall further represent and warrant that it beneficially owns
such shares, that it or its designee is the record holder of such shares and
that the delivery of such shares shall convey good and marketable title to such
shares. At such closing the transferee shall deliver payment in full in
immediately available funds for the Buyer Common Stock purchased by such
transferee.
Section 5.6 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 5.7 Entire Agreement. This Agreement constitutes the entire
agreement between Buyer and the Shareholders with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Buyer and the Shareholders with respect to the subject matter
hereof.
Section 5.8 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
Section 5.9 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being
8
enforced, the parties hereby shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in a mutually
acceptable manner in order that the terms of this Agreement remain as originally
contemplated.
Section 5.10 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to a Stockholder, to:
Xxxxxx X. Xxxxxxx, Esq.
Senior Executive Vice President and
Group General Counsel
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Metromedia International Group, Inc., to:
Xxxxxx X. Xxxxxx, Esq.
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Section 5.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state.
9
Section 5.12 Obligations of Stockholders. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Stockholder have any liability or obligation with respect
to any misrepresentation or breach of covenant of any other Stockholder.
Section 5.13 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
10
IN WITNESS WHEREOF, each of the Shareholders and Buyer have caused this
Agreement to be duly executed on the date hereof.
METROMEDIA INTERNATIONAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer,
Executive Vice President,
Treasurer and Director
NEWS AMERICA INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President and Deputy
General Counsel
NEWS PLD LLC
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title:
For Purposes of Section 5.5 only:
METROMEDIA COMPANY
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
11
SCHEDULE 1
NAME OF SHAREHOLDER NUMBER OF SHARES
------------------- ----------------
News America Incorporated 18,436,149
(includes 3,804,369 shares issuable upon
the conversion of notes held by News
America Incorporated and 250,000 shares
issuable upon the exercise of warrants held
by News PLD LLC)
News PLD LLC 14,631,780
(includes 250,000 shares issuable
upon the exercise of warrants held
by News PLD LLC)
