EXHIBIT 2.2
AGREEMENT
THIS AGREEMENT, dated as of October 23, 1995, is made by and among XxXxxx De
Leeuw & Co. II, L.P., XxXxxx De Leeuw Associates, L.P., XxXxxx De Leeuw & Co.
Offshore (Europe), L.P., XxXxxx De Leeuw & Co. Offshore (Asia), L.P. (each of
the foregoing being each referred to herein as a "Stockholder" and,
collectively, as the "Stockholders") and Arch Acquisition Corp., a Delaware
corporation (the "Purchaser").
WHEREAS, concurrently herewith, the Purchaser, Heritage Media Corporation,
the Purchaser's parent corporation ("Parent"), and DIMAC Corporation, a Delaware
corporation (the "Company"), have executed and delivered an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"); and
WHEREAS, capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Merger Agreement; and
WHEREAS, the Stockholders are principal stockholders of the Company and will
benefit from the consummation of the transactions contemplated by the Merger
Agreement; and
WHEREAS, in order to provide reasonable assurance to Purchaser to enter into
the Merger Agreement and that the transactions contemplated by the Merger
Agreement will be consummated, the Stockholders are willing to make certain
agreements regarding the shares of Company Common Stock owned by them (the
"Shares"), upon the terms and subject to the conditions set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. VOTING OF SHARES. Unless (i) the Board of Directors of the Company has
withdrawn or materially modified or changed its recommendation that the
stockholders of the Company approve the Merger Agreement and the Merger and (ii)
as a result thereof the Merger Agreement has been terminated, the Stockholders
agree to vote such Shares in favor of the Merger and shall not seek to assert
any appraisal right.
2. REPRESENTATION AND WARRANTIES OF STOCKHOLDERS. Each Stockholder,
jointly and severally, represents and warrants to the Purchaser that:
(a) Such Stockholder is the sole record and beneficial owner of the
number of Shares listed opposite such Stockholder's name on Schedule I
hereto; no person has a right to acquire or direct the disposition, or holds
a proxy or other right to vote or direct the vote, of such Shares. Other
than this Agreement and the Merger Agreement and except as set forth on
Schedule I hereto, there is no option, warrant, right, call, proxy,
agreement, commitment or understanding of any nature whatsoever, fixed or
contingent, that directly or indirectly (i) calls for the sale, pledge or
other transfer or disposition of any of such Stockholder's Shares, any
interest therein or any rights with respect thereto, or relates to the
voting, disposition or control of such Shares, or (ii) obligates such
Stockholder to grant, offer or enter into any of the foregoing.
(b) Such Stockholder has the full right, power, authority and legal
capacity to enter into this Agreement, and this Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a valid
and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants that:
(a) It has the corporate power to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
(b) It has taken all corporate action necessary to authorize its
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby; and that this Agreement has been
duly and validly executed and delivered by Purchaser and constitutes a valid
and binding obligation of Purchaser.
4. BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective heirs, personal
representatives, successors and permitted assigns.
5. INJUNCTIVE RELIEF; REMEDIES CUMULATIVE. Each party hereto acknowledges
that the other parties will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
such party that are contained in this Agreement. It is accordingly agreed that,
in addition to any other remedies that may be available to the non-breaching
party or parties upon the breach by any other party of such covenants and
agreements, the non-breaching party or parties shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of such covenants
or agreements or otherwise to obtain specific performance of any of such
covenants or agreements. No remedy conferred upon or reserved to any party
herein is intended to be exclusive of any other remedy, and every remedy shall
be cumulative and in addition to every other remedy herein or now or hereafter
existing at law, in equity or by statute.
6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the law of
conflicts of laws thereof.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together shall constitute a single agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed as of the date first above written.
Arch Acquisition Corp.
By: /s/ XXXXX X. XXXXXXXX
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XxXxxx De Leeuw & Co. II, L.P.
By MDC Management Company II, L.P.
(general partner)
By: /s/ XXXXX XX XXXXX
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XxXxxx De Leeuw Associates, L.P.
By MDC Management Company II, L.P.
(general partner)
By: /s/ XXXXX XX XXXXX
--------------------------------------
XxXxxx De Leeuw & Co. Offshore
(Europe), L.P.
By MDC Management Company IIE, L.P.
(general partner)
By: /s/ XXXXX XX XXXXX
--------------------------------------
XxXxxx De Leeuw & Co. Offshore (Asia),
L.P.
By MDC Management Company IIE, L.P.
(general partner)
By: /s/ XXXXX XX XXXXX
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SCHEDULE I
NAME NUMBER OF SHARES
----------------------------------------------------------------------------------------------- -----------------
XxXxxx De Leeuw & Co. II, L.P.................................................................. 1,000,021
XxXxxx De Leeuw Associates, L.P................................................................ 419,363
XxXxxx De Leeuw & Co. Offshore (Europe), L.P................................................... 161,292
XxXxxx De Leeuw & Co. Offshore (Asia), L.P..................................................... 32,258
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