Exhibit 10.2
PARENT STOCKHOLDER VOTING AGREEMENT
PARENT STOCKHOLDER VOTING AGREEMENT, dated as of February __, 2000
(this "Agreement"), by and among XXXXXX COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and HAVAS (the "Stockholder").
WHEREAS, concurrently herewith, the Company, Havas Advertising, a
societe anonyme organized under the laws of the French Republic ("Parent"), and
HAS Acquisition Corp. 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, the Stockholder is the beneficial owner of the number of
shares ("Parent Shares") of each class of capital stock of Parent entitled to
vote set forth in Schedule I hereto;
WHEREAS, approval of the Capital Increase by Parent's stockholders is
required in order to consummate the Merger;
WHEREAS, the Board of Directors of Parent has, prior to the execution
of this Agreement, duly and validly approved and adopted the Merger Agreement,
and such approval and adoption has not been withdrawn;
WHEREAS, the Stockholder is executing this Agreement (i) as an
inducement to the Company to enter into and execute the Merger Agreement and
(ii) in reliance upon the representations, warranties, agreements and covenants
of the Company set forth in the Merger Agreement; and
WHEREAS, certain holders of shares of the Company capital stock are
concurrently executing the Company Stockholder Voting Agreement agreeing to vote
for the Merger as an inducement to Parent 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 10. Agreement to Vote Parent Shares. The Stockholder agrees
that, during the term of this Agreement, the 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 Parent, however called, or in
connection with any written consent of the holders of any of the Parent Shares,
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 Parent Shares
to be counted as present thereat for purposes of establishing a quorum, and the
Stockholder shall vote or consent (or cause to be voted or consented), in person
or by proxy, all Parent Shares, and any other voting securities of Parent
(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 Capital Increase. The 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 Parent, if such consent or vote by the stockholders of Parent
would be inconsistent with or frustrate the purposes or terms of this Agreement,
the Capital Increase or the Merger Agreement.
In furtherance and not in limitation of the foregoing, the
Stockholder hereby grants to, and appoints, each of Xxxxxxx Xxxxxx and
Xxxx-Xxxxx Le Nail, each of them individually, its irrevocable proxy and
attorney-in-fact (with full power of substitution) to vote the Parent Shares as
indicated in this Section 1. The 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.
The Stockholder hereby revokes any and all previous proxies with
respect to its Parent Shares or any other voting securities of Parent that may
relate to the voting of its Parent Shares in accordance with the provisions of
this Section 1.
Section 11. Restriction on Transfer, Proxies and Non-Interference.
Except as contemplated by this Agreement, the 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 Parent Shares or any interest
therein; (ii) grant any proxies or powers of attorney, deposit any Parent Shares
into a voting trust or enter into a voting agreement with respect to any Parent
Shares; or (iii) take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect, or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations pursuant to this Agreement or the Company's obligations under the
Merger Agreement.
Section 12. Restriction on Transfer of Shares Parent ADSs. The
Stockholder agrees not to effect any Disposition of the Parent Shares during the
first one hundred eighty (180) days following the Effective Time.
Section 13. 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.
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Section 14. Representations and Warranties of the Company. The
Company represents and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of the
Company, representing all necessary corporate action on the part of
the Company for the execution and performance hereof and thereof by
the Company (no action by the stockholders of the Company being
required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of the Company.
(c) This Agreement constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms.
(d) The execution and delivery of this Agreement by the Company does not
violate or breach, and will not give rise to any violation or
breach, of the Company's certificate of incorporation 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 the Company or its subsidiaries or
their respective assets or properties may be bound.
Section 15. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to the Company as follows:
(a) Schedule I sets forth the number and type of Parent Shares of which
the Stockholder is the record or beneficial owner and the number of
votes per share that the Stockholder is entitled to with respect to
the Capital Increase. The Stockholder is the lawful owner of such
Parent Shares and has the sole power to vote (or cause to be voted)
the Parent Shares as set forth in this Agreement. Except as set
forth on such Schedule I, neither the Stockholder nor any of its
wholly owned affiliates owns or holds any rights to acquire any
additional shares of any class of Parent Shares or other securities
of Parent or any interest therein or any voting rights with respect
to any additional Parent Shares or any other securities of Parent.
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of the Stockholder.
(c) This Agreement constitutes the valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with
its terms.
(d) The execution and delivery of this Agreement by the Stockholder does
not violate or breach, and will not give rise to any violation or
breach, of the Stockholder's organizational documents, trust
instrument or partnership agreement, to the extent applicable or,
except as will not materially impair the ability of the Stockholder
to effectuate, carry out or comply with all of the terms of this
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Agreement, any applicable law, third party consent, approval,
filing, registration or similar requirement of any governmental
authority or any agreement or contract by which the Stockholder or
its assets or properties may be bound.
Section 16. 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), or (y) Article 7 of the Merger
Agreement entitled "Termination" or (B) the waiver on or prior to the Closing
Date by Parent of any material condition precedent set forth in Article 6 of the
Merger Agreement, shall require the written consent of the Stockholder, failing
which this Agreement may be terminated in writing by the 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 the Stockholder and it shall be of no further force or
effect as to the Stockholder.
Section 17. 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:
if to the Company, to:
Xxxxxx Communications, Inc.
Two Democracy Centre
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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if to the Stockholder, to:
Xxxxx X.X.
00 xxx xx Xxxxxxx
00000 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.
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 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 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
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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 the Company and the
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 the Company and the 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 the Company and the 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
8(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 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.
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(k) Expenses. Each of the Company and the Stockholder shall bear its own
expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
(l) Action in Stockholder Capacity Only. The Stockholder makes no
agreement or understanding herein as a director or officer of Parent
or in any capacity other than as a stockholder of Parent. The
Stockholder signs solely in its capacity as a record holder and
beneficial owner of Parent Shares, and nothing herein shall limit or
affect any actions taken by a representative of the Stockholder in
such representative's capacity as an officer or director of Parent.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO PARENT STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Parent
Stockholder Voting Agreement as of the date first above written.
THE COMPANY:
-----------
XXXXXX COMMUNICATIONS, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
------------------------------------
Name: A. Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
STOCKHOLDER:
-----------
HAVAS
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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Schedule I
Ownership of Voting Stock
Name and Address Number of Shares Ordinary shares issuable on Number of
of Stockholder Owned exercise of Warrants Votes per Share
-------------- ----- ----------- ---------------
Xxxxx X.X. 1,496,960 ordinary shares 105,786 1
00 xxx xx Xxxxxxx
00000 Xxxxx, Xxxxxx
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