EXHIBIT 3
---------
AMENDED AND RESTATED COMPANY STOCKHOLDER VOTING AGREEMENT
THIS AMENDED AND RESTATED COMPANY STOCKHOLDER VOTING
AGREEMENT, dated as of August 18, 2000 (this "Agreement"), by and among HAVAS
ADVERTISING, a societe anonyme organized under the laws of the French Republic
(the "Parent"), and each of the other signatories hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, Parent, HAS Acquisition Corp. and ▇▇▇▇▇▇
Communications, Inc., a Delaware corporation (the "Company"), entered into an
Amended and Restated Agreement and Plan of Merger dated as of August 3, 2000 and
effective as of February 20, 2000 (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, each Stockholder is the beneficial owner of the
number of shares ("Company Shares") of each class of capital stock of the
Company entitled to vote set forth opposite such Stockholder's name in Schedule
I hereto;
WHEREAS, approval and adoption of the Merger Agreement by the
Company's stockholders is required in order to consummate the Merger;
WHEREAS, the Board of Directors of the Company has, prior to
the execution of this Agreement, duly and validly approved and adopted the
Merger Agreement and has resolved and agreed to recommend to its stockholders
that they approve and adopt the Merger Agreement, and such approval, adoption,
resolution and agreement has not been withdrawn;
WHEREAS, certain Stockholders entered into a Company
Stockholder Voting Agreement dated as of February 20, 2000 (the "Original
Agreement") (i) as an inducement to Parent to enter into and execute the Merger
Agreement and (ii) in reliance upon the representations, warranties, agreements
and covenants of Parent set forth in the Merger Agreement;
WHEREAS, certain holders of shares of the capital stock of
Parent have executed the Parent Stockholder Voting Agreement pursuant to which
each such holder party thereto agreed to vote for the Capital Increase as an
inducement to the Company to enter into and execute the Merger Agreement; and
WHEREAS, Parent and each Stockholder desire to amend and
restate the Original Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1 Agreement to Vote. Each Stockholder hereby agrees (for itself
and not as to any other Stockholder) that, during the term of this Agreement,
such 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
the Company, however called, or in connection with any written consent of the
holders of Company Common Stock, 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 Company Common Stock to be counted as present thereat for
purposes of establishing a quorum, and such Stockholder shall vote or consent
(or cause to be voted or consented), in person or by proxy, all Company Common
Stock, and any other voting securities of the Company (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 ▇▇▇▇ ▇▇▇) 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 Merger
Agreement. Each 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
the Company, if such consent or vote by the stockholders of the Company would be
inconsistent with or frustrate the purposes or terms this Agreement or the
Merger Agreement.
In furtherance and not in limitation of the foregoing, each
Stockholder hereby grants to, and appoints, Parent and each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ in their respective capacities as officers of Parent, and
any individual who shall hereafter succeed to any such officer of Parent, and
any other designee of Parent, each of them individually, its irrevocable proxy
and attorney-in-fact (with full power of substitution) to vote the Company
Common Stock as indicated in this Section 1. Each 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.
Each Stockholder hereby revokes any and all previous proxies
with respect to its Company Common Stock or any other voting securities of the
Company that may relate to the approval of the Merger Agreement.
Section 2. Restriction on Transfer, Proxies and Non-Interference.
Except as contemplated by this Agreement, each 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 Company Shares or any interest
therein; (ii) grant any proxies or powers of attorney, deposit any Company
Shares into a voting trust or enter into a voting agreement with respect to any
Company Shares; or (iii) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect, or have the
effect of preventing or disabling the Stockholder from performing the
Stockholder's obligations under this Agreement or the Company from performing
the Company's obligations under the Merger Agreement.
Section 3. Restriction on Transfer of Shares Parent ADSs. Each
Stockholder agrees (a) not to effect any Disposition during the first one
hundred eighty (180) days following the Effective Time of an aggregate number of
Parent ADSs in excess of fifty (50%) percent of the Net Parent ADSs (as defined
below) and (b) not to effect any Disposition during the first ninety (90) days
following the Effective Time of an aggregate number of Parent ADSs in excess of
the number of Parent ADSs deliverable by such Stockholder pursuant to the
Forward Purchase Contracts (as defined below), excluding (in the case of clause
(b) only) any Parent ADSs sold pursuant to the immediately following sentence.
During the period of ninety (90) days following the Effective Time, Parent shall
use reasonable best efforts to facilitate or arrange a third party placement or
underwriting of up to 50% of the Net Parent ADSs on terms acceptable to the
Stockholders, with all out-of-pocket costs and expenses incurred in connection
with any such placement or underwriting to be paid by Parent (and any
underwriting commission or discount paid by the Stockholders). The Parent agrees
that it will cooperate with the Stockholders and file any resale prospectus or
registration statement as may reasonably be requested by the Stockholders with
respect to the Parent ADSs received by the Stockholders in the Merger until such
time as the Parent ADSs may be sold without restrictions under Rule 145(d), with
all out-of-pocket costs and expenses incurred in connection with any such resale
prospectus or registration statement to be paid by Parent (and any underwriting
commission or discount paid by the Stockholders). For purposes of this
Agreement, "Net Parent ADSs" means the difference of (i) the number of Parent
ADSs received by such Stockholder in the Merger minus (ii) the number of Parent
ADSs deliverable by such Stockholder pursuant to the Forward Purchase Contracts.
2
For purposes hereof, "Forward Purchase Contracts" means (i) the Forward Purchase
Contract dated September 18, 1997 among the ▇▇▇▇▇▇ Strypes Trust, the Bank of
New York, as collateral agent and administrator, and D.M.S. Endowment, LLC, ▇.▇.
▇▇▇▇▇▇, LLC, ▇.▇. ▇▇▇▇▇▇▇, LLC and USN College Marketing, L.P. and (ii) the
Purchase Agreements dated as of July 29, 1998 between Bear, ▇▇▇▇▇▇▇ & Co. Inc.
and each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and USN College Marketing, L.P.,
respectively. Unless the Disposition of any Parent ADSs received by the
Stockholders in the Merger is permitted pursuant to this Section 3, the
certificates representing such Parent ADSs will bear an appropriate legend with
respect to the restrictions set forth in this Section 3, and stop transfer
instructions will be given to the transfer agent of Parent with respect to such
Parent ADSs.
Section 4. Non-Solicitation. Each Stockholder shall comply in all
respects with the non-solicitation and other provisions of Section 5.05 of the
Merger Agreement and the other provisions of the Merger Agreement related
thereto, and shall not take any of the actions or do any of the things
restricted or otherwise prohibited thereby.
Section 5. 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.
Section 6. Representations and Warranties of Parent. Parent represents
and warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of
Directors of Parent, representing all necessary corporate
action on the part of Parent for the execution and performance
hereof and thereof by Parent (no action by the stockholders of
Parent being required).
(b) This Agreement has been duly executed and
delivered by a duly authorized officer of Parent.
(c) This Agreement constitutes the valid and binding
agreement of Parent, enforceable against Parent in accordance
with its terms.
(d) The execution and delivery of this Agreement by
Parent does not violate or breach, and will not give rise to
any violation or breach, of Parent's organizational documents,
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 Parent or its subsidiaries or their respective assets or
properties may be bound.
Section 7. Representations and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder only, represents and warrants to Parent as
follows:
(a) Schedule I sets forth, opposite each
Stockholder's name, the number and type of Company Common
Stock of which such Stockholder is the record or beneficial
owner and the number of votes per share to which the
Stockholder is entitled with respect to the Merger Agreement.
Such Stockholder is the lawful owner of such Company Common
Stock and has the sole power to vote (or cause to be voted)
the Company Shares as set forth in this Agreement. Except as
set forth on such Schedule I, neither such Stockholder nor any
of its wholly owned affiliates owns or holds any rights to
acquire any additional shares of any class of Company Common
Stock or other securities of the Company or any interest
therein or any voting rights with respect to any additional
shares of any class of Company Common Stock or any other
securities of the Company.
3
(b) This Agreement has been duly executed and
delivered by a duly authorized officer of such Stockholder or,
if the Stockholder is a natural person, the Stockholder has
the legal capacity to execute this Agreement.
(c) This Agreement constitutes the valid and binding
agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(d) The execution and delivery of this Agreement by
such Stockholder do not violate or breach, and will not give
rise to any violation or breach, of such Stockholder's
organizational documents, trust instrument or partnership
agreement, to the extent applicable, or, except as will not
materially impair the ability of such Stockholder to
effectuate, carry out or comply with all of the terms of this
Agreement, any applicable law, third party consent, approval,
filing, registration or similar requirement of any
governmental authority or any agreement or contract by which
such Stockholder or its assets or properties are bound.
Section 8. 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), (y) Section 5.05 of the Merger
Agreement (including the definition of "Acquisition Proposal" set forth in
Section 5.05(c) thereof), or (z) Article 7 of the Merger Agreement entitled
"Termination" or (B) the waiver on or prior to the Closing Date by the Company
of any material condition precedent set forth in Article 6 of the Merger
Agreement, shall require the written consent of the Stockholders, failing which
this Agreement may be terminated in writing by any 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 any Stockholder and it shall be of no further force or
effect as to such Stockholder.
Section 9. 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 Parent, to:
Havas Advertising ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
if to any Stockholder, to the address set forth on Schedule I
hereto with respect to such Stockholder:
with a copy to:
4
Weil, Gotshal & ▇▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 or policies 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 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 Parent and
each 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 Parent and each 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 Parent and each
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 9(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
5
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.
(k) Expenses. Each of Parent and each Stockholder shall bear
its own expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
(l) Action in Stockholder Capacity Only. No Stockholder makes
any agreement or understanding herein as a director or officer of the Company or
in any capacity other than as a stockholder of the Company. Each Stockholder
signs solely in his/her capacity as a record holder and beneficial owner of
Company Shares and nothing herein shall limit or affect any actions taken by a
representative of such Stockholder in such representative's capacity as an
officer or director of the Company.
(m) Obligations Several. The obligations of each Stockholder
under this Agreement shall be several and not joint. No Stockholder shall have
any liability, duty or obligation arising out of or resulting from any failure
by any other Stockholder (or any Affiliate thereof) to comply with the terms and
conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
6
SIGNATURE PAGE TO AMENDED AND RESTATED COMPANY STOCKHOLDER
VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this
Amended and Restated Company Stockholder Voting Agreement as of the date first
above written.
PARENT:
HAVAS ADVERTISING
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: _________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Director-General
STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
USN COLLEGE MARKETING, L.P.
By: USN College Marketing, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: _________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:President
D.M.S. ENDOWMENT, LLC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: __________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
▇.▇. ▇▇▇▇▇▇, LLC
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: _________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:Member
7
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ JEWISH DAY
SCHOOL OF GREATER
WASHINGTON, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ____________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
8
Schedule I
Ownership of Company Common Stock
Class
of
Company Number of
Name and Address of Stockholder Common Stock Shares
------------------------------- ------------ ------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SNC 5,551,171
c/▇ ▇▇▇▇▇▇ Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CIRC 1,382,793
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SNC 1,945,490
c/▇ ▇▇▇▇▇▇ Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CIRC 481,372
D.M.S. Endownment, LLC SNC 4,337,976
c/▇ ▇▇▇▇▇▇ Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CIRC 1,084,494
▇▇▇▇ ▇▇▇▇▇▇▇ SNC 1,125,303
▇.▇. ▇▇▇▇▇▇, LLC
c/o The Daily News
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ CIRC 281,325
USN College Marketing L.P. SNC 5,290,939
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ CIRC 1,322,734
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Jewish Day School of Greater SNC 1,086,942
Washington, Inc
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ CIRC 271,736
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ SNC 634,610
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ CIRC 158,652
9