1
EXHIBIT 10.11
VOTING AGREEMENT
INTRODUCTION
THIS VOTING AGREEMENT, dated as of February 28, 1999 (as the same may be
supplemented, modified, amended, restated or replaced from time to time in the
manner provided herein, this "Agreement"), is made by and among CLINTON E.
OWENS, an individual ("Owens") and RVM/PIA, a California limited partnership
("RVM/PIA") (Owens and RVM/PIA may be referred to individually as a "PIA
Stockholder" and collectively as the "PIA Stockholders"), PIA MERCHANDISING
SERVICES, INC., a Delaware corporation ("PIA Delaware"), ROBERT G. BROWN, an
individual ("Brown") and WILLIAM H. BARTELS, an individual ("Bartels") (Brown
and Bartels may be referred to individually as a "SPAR Stockholder" and
collectively as the "SPAR Stockholders"), and SPAR ACQUISITION, INC., a Nevada
corporation (the "SPAR Acquisition"). The PIA Stockholders, PIA Delaware, the
SPAR Stockholders and SPAR Acquisition are sometimes referred to herein
individually as a "Party" and collectively as the "Parties".
RECITALS
PIA Delaware and certain of its subsidiaries and SPAR Acquisition and
certain of its affiliates (which will be subsidiaries at closing) are parties to
an Agreement and Plan of Merger dated as of February 28, 1999 (as the same may
be supplemented, modified, amended, restated or replaced from time to time in
the manner provided therein, the "Merger Agreement"). SPAR Acquisition and the
SPAR Stockholders are parties to a Reorganization Agreement dated as of February
28, 1999 (as the same may be supplemented, modified, amended, restated or
replaced from time to time in the manner provided therein, the "Reorganization
Agreement"). "PIA Stock" shall mean the shares of common stock, par value $0.01
per share, issued by PIA Delaware. "SPAR Stock" shall mean the shares of common
stock, par value $0.01 per share, issued by SPAR Acquisition. Capitalized terms
used and not otherwise defined herein shall have the meanings respectively
assigned to them in the Merger Agreement or the Reorganization Agreement, as
applicable.
The PIA Stockholders own of record certain shares of PIA Stock (all such
shares, together with all other shares of PIA Stock that any PIA Stockholder
currently has or hereafter acquires record ownership of, are collectively
referred to as the "PIA Shares"). The SPAR Stockholders own of record certain
shares of SPAR Stock (all such shares, together with all other shares of SPAR
Stock that any SPAR Stockholder currently has or hereafter acquires beneficial
ownership of, are collectively referred to as the "SPAR Shares").
Pursuant to the Merger Agreement, PIA Delaware and SPAR Acquisition have
agreed to merge SG Acquisition, Inc., a subsidiary of PIA Delaware, into and
with SPAR Acquisition, in return for the issuance of PIA Stock to the SPAR
Stockholders and other consideration as more fully described, on the terms and
provisions and subject to the conditions in the Merger Agreement (the "Merger").
-1-
2
As PIA Delaware and SPAR Acquisition have incurred, and may be required
to incur additional, substantial expenses in connection with the negotiation,
execution, stockholder approval, proxy disclosure and performance of the Merger
Agreement, PIA Delaware has requested, as a condition to its willingness to
enter into the Merger Agreement, that the SPAR Stockholders agree to certain
matters with respect to the voting of the SPAR Shares by the SPAR Stockholders,
and SPAR Acquisition has requested, as a condition to its willingness to enter
into the Merger Agreement, that the PIA Stockholders agree to certain matters
with respect to the voting of the PIA Shares by the PIA Stockholders, all upon
the terms and provisions and subject to the conditions hereinafter set forth.
AGREEMENT
In consideration of the foregoing, the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration (the receipt
and adequacy of which is hereby acknowledged by the Parties), the Parties hereto
hereby agree as follows:
Section 1. PIA Stockholder Voting. Until the earlier of the termination
or closing of the Merger Agreement in accordance with its terms, subject to the
receipt of proper notice and the absence of a preliminary or permanent
injunction or other final order by any United States federal court or state
court barring such action, each PIA Stockholder shall do the following:
(a) be present, in person or represented by proxy, at each meeting (whether
annual or special, and whether or not an adjourned or postponed meeting)
of the stockholders of PIA Delaware, however called, or in connection
with any written consent of stockholders of PIA Delaware, so that all
PIA Shares then entitled to vote may be counted for the purposes of
determining the presence of a quorum at such meeting; and
(b) vote or cause the vote of the PIA Shares held of record by such PIA
Stockholder, at each such meeting held before the Effective Time and
with respect to each written consent, (i) to approve the Merger
Agreement and the Merger, the Proposed Restated Certificate, the
Proposed Plan Amendment, and any action in furtherance thereof, (ii)
except as otherwise approved in writing in advance by SPAR Acquisition
(which approval may be granted, withheld, conditioned or delayed in its
sole discretion), against any Acquisition Proposal (other than the
Merger), and (iii) in favor of any amendment to or restatement of the
charter or by-laws of PIA Delaware required by the Merger Agreement, and
except as otherwise approved in writing in advance by SPAR Acquisition
(which approval may be granted, withheld, conditioned or delayed in its
sole discretion), against any other amendment to or restatement of the
charter or by-laws of PIA Delaware.
Section 2. SPAR Stockholder Voting. Until the earlier of the termination
or closing of the Merger Agreement in accordance with its terms, subject to the
receipt of proper notice and the absence of a preliminary or permanent
injunction or other final order by any United States federal court or state
court barring such action, each SPAR Stockholder shall do the following:
(a) be present, in person or represented by proxy, at each meeting (whether
annual or special, and whether or not an adjourned or postponed meeting)
of the stockholders of SPAR Acquisition, however called, or in
connection with any written consent of stockholders of SPAR Acquisition,
-2-
3
so that all SPAR Shares then entitled to vote may be counted for the
purposes of determining the presence of a quorum at such meeting; and
(b) vote or cause the vote of the SPAR Shares, at each such meeting held
before the Effective Time and with respect to each written consent, (i)
to approve the Merger Agreement and the Merger and any action in
furtherance thereof, (ii) except as otherwise approved in writing in
advance by PIA Delaware (which approval may be granted, withheld,
conditioned or delayed in its sole discretion), against any Acquisition
Proposal (other than the Merger), and (iii) in favor of any amendment to
or restatement of the charter or by-laws of SPAR Acquisition required by
the Merger Agreement, and except as otherwise approved in writing in
advance by PIA Delaware (which approval may be granted, withheld,
conditioned or delayed in its sole discretion), against any other
amendment to or restatement of the charter or by-laws of SPAR
Acquisition.
Section 3. Representations and Warranties of the PIA Stockholders. Each
PIA Stockholder hereby severally represents and warrants (with respect to such
PIA Stockholder and the PIA Shares held of record by such PIA Stockholder) to
SPAR Acquisition that:
(a) Such PIA Stockholder has the full right, power and authority to
enter into this Agreement.
(b) The execution, delivery and performance of this Agreement by such
PIA Stockholder and the consummation of the transactions contemplated hereby do
not and will not, with or without the giving of notice or the passage of time,
(i) violate any applicable law or any judgment, injunction or order of any
court, arbitrator or governmental agency applicable to such PIA Stockholder, or
(ii) constitute a breach or default or require the consent of any third party
under any agreement, instrument, judgment, order or decree to which such PIA
Stockholder is a party or by which such PIA Stockholder or the PIA Shares held
of record by such PIA Stockholder may be bound or subject.
(c) This Agreement has been duly and validly executed and delivered by
such PIA Stockholder and is the legal, valid and binding obligation of such PIA
Stockholder, enforceable against such PIA Stockholder in accordance with its
terms and provisions, except as enforcement may be limited by the Bankruptcy
Exceptions.
Section 4. Additional Covenants of the PIA Stockholders. Each PIA
Stockholder hereby covenants and agrees with SPAR Acquisition that, until the
termination of this Agreement as provided below, unless waived by SPAR
Acquisition in writing (in its sole and absolute discretion):
(a) Such PIA Stockholder shall not enter into any transaction, take any
action, or by inaction permit any event to occur, that would result in any of
the representations or warranties of such PIA Stockholder herein contained not
being true and correct at and as of the time immediately after the occurrence of
such transaction, action or event.
(b) Such PIA Stockholder shall not, whether directly, indirectly, or
through any employee, agent or otherwise (i) solicit or initiate any inquiry or
submission of a proposal or an offer from any person, corporation,
unincorporated organization, partnership, association, joint venture, trust or
any other entity (a "Third Party") relating to any Acquisition Proposal, or (ii)
participate in any
-3-
4
discussions or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way or assist or
facilitate any Acquisition Proposal by any Third Party except to the extent that
PIA Delaware is permitted to do so pursuant to the Merger Agreement.
(c) Such PIA Stockholder shall not, directly or indirectly, (i) grant
any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any of the PIA Shares held of record by such PIA
Stockholder, (ii) acquire, sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect acquisition or sale, assignment,
transfer, encumbrance or other disposition of, any of such PIA Shares, or (iii)
seek or solicit any such acquisition or sale, assignment, transfer encumbrance
or other disposition or any such contract, option or other arrangement or
assignment or understanding.
(d) Such PIA Stockholder shall execute and deliver any additional
documents reasonably requested by SPAR Acquisition as necessary or desirable to
implement and effect the provisions of this Agreement, each in form and
substance reasonably acceptable to such PIA Stockholder.
Section 5. Representations and Warranties of the SPAR Stockholders. Each
SPAR Stockholder hereby severally represents and warrants (with respect to such
SPAR Stockholder and the SPAR Shares owned of record by such SPAR Stockholder)
to PIA Delaware that:
(a) Such SPAR Stockholder has the full right, power and authority to
enter into this Agreement.
(b) The execution, delivery and performance of this Agreement by such
SPAR Stockholder and the consummation of the transactions contemplated hereby do
not and will not, with or without the giving of notice or the passage of time,
(i) violate any applicable law or any judgment, injunction or order of any
court, arbitrator or governmental agency applicable to such SPAR Stockholder, or
(ii) constitute a breach or default or require the consent of any third party
under any agreement, instrument, judgment, order or decree to which such SPAR
Stockholder is a party or by which such SPAR Stockholder or the SPAR Shares held
of record by such SPAR Stockholder may be bound or subject.
(c) This Agreement has been duly and validly executed and delivered by
such SPAR Stockholder and is the legal, valid and binding obligation of such
SPAR Stockholder, enforceable against him in accordance with its terms and
provisions, except as enforcement may be limited by the Bankruptcy Exceptions.
Section 6. Additional Covenants of the SPAR Stockholders. Each SPAR
Stockholder hereby covenants and agrees with PIA Delaware that, until the
termination of this Agreement as provided below, unless waived by PIA Delaware
in writing (in its sole and absolute discretion):
(a) Such SPAR Stockholder shall not enter into any transaction, take any
action, or by inaction permit any event to occur, that would result in any of
the representations or warranties of
-4-
5
such SPAR Stockholder herein contained not being true and correct at and as of
the time immediately after the occurrence of such transaction, action or event.
(b) Such SPAR Stockholder shall not, directly or indirectly, (i) grant
any proxies or enter into any voting trust or other agreement or arrangement
with respect to the voting of any of the SPAR Shares held of record by such SPAR
Stockholder, (ii) acquire, sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect acquisition or sale, assignment,
transfer, encumbrance or other disposition of, any of such SPAR Shares except
for transfers or sales either directly or indirectly to Family Members (as
defined in the Merger Agreement) of the SPAR Stockholders, or (iii) seek or
solicit any such acquisition or sale, assignment, transfer encumbrance or other
disposition or any such contract, option or other arrangement or assignment or
understanding.
(c) Such SPAR Stockholder shall execute and deliver any additional
documents reasonably requested by PIA Delaware as necessary or desirable to
implement and effect the provisions of this Agreement, each in form and
substance reasonably acceptable to such SPAR Stockholder.
Section 7. Represents and Warranties of PIA Delaware. PIA Delaware
hereby represents and warrants to SPAR Acquisition that:
(a) PIA Delaware has all requisite power and authority to enter into and
perform all of its obligations under this Agreement. The execution, delivery and
performance of this Agreement and all of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of PIA Delaware.
(b) The execution, delivery and performance of this Agreement by the PIA
Delaware and the consummation of the transactions contemplated hereby do not and
will not, with or without the giving of notice or the passage of time, (i)
violate the organizational documents of PIA Delaware, (ii) violate any
applicable law or any judgment, injunction or order of any court, arbitrator or
governmental agency applicable to PIA Delaware, or (iii) constitute a breach or
default or require the consent of any third party under any agreement,
instrument, judgment, order or decree to which PIA Delaware is a party or by
which PIA Delaware may be bound or subject.
(c) This Agreement has been duly executed and delivered by PIA Delaware
and is the legal, valid and binding obligation of PIA Delaware, enforceable
against it in accordance with its terms and provisions, except as enforcement
may be limited by the Bankruptcy Exceptions.
Section 8. Represents and Warranties of SPAR Acquisition. SPAR
Acquisition hereby represents and warrants to PIA Delaware that:
(a) SPAR Acquisition has all requisite power and authority to enter into
and perform all of its obligations under this Agreement. The execution, delivery
and performance of this Agreement and all of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of SPAR
Acquisition.
(b) The execution, delivery and performance of this Agreement by the
SPAR Acquisition and the consummation of the transactions contemplated hereby do
not and will not, with or
-5-
6
without the giving of notice or the passage of time, (i) violate the
organizational documents of SPAR Acquisition, (ii) violate any applicable law or
any judgment, injunction or order of any court, arbitrator or governmental
agency applicable to SPAR Acquisition, or (iii) constitute a breach or default
or require the consent of any third party under any agreement, instrument,
judgment, order or decree to which SPAR Acquisition is a party or by which SPAR
Acquisition may be bound or subject.
(c) This Agreement has been duly executed and delivered by SPAR
Acquisition and is the legal, valid and binding obligation of SPAR Acquisition,
enforceable against it in accordance with its terms and provisions, except as
enforcement may be limited by the Bankruptcy Exceptions.
Section 9. Termination. This Agreement shall terminate upon the first to
occur of (a) the consummation of the Merger pursuant to Merger Agreement and (b)
the termination of the Merger Agreement in accordance with its terms.
Section 10. Equitable Relief. Each Party acknowledges and agrees that it
may be impossible to measure in money the damage to the other Parties in the
event of a breach of or default under any of the terms and provisions of this
Agreement, and that, in the event of any such breach or default, PIA Delaware or
SPAR Acquisition, as the case may be, in addition to all other rights, powers,
privileges and remedies that it may have, shall be entitled to injunctive
relief, specific performance or such other equitable relief as such Party may
request to exercise or otherwise enforce any of the terms and provisions of this
Agreement and to enjoin or otherwise restrain any act of any SPAR Stockholder or
PIA Stockholder (respectively) prohibited thereby, and the Parties will not
raise and each Party hereby expressly waives any objection or defense that there
is an adequate remedy available at law.
Section 11. Waiver of Jury Trial. In any action, suit or proceeding in
any jurisdiction brought against any Party by any other Party, each Party hereby
irrevocably waives trial by jury.
Section 12. Notice. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to the addressee at the address set forth above (or at such other address as
shall be designated hereunder by notice to the other parties and persons
receiving copies, effective upon actual receipt) and shall be deemed
conclusively to have been given: (i) on the first Business Day following the day
timely deposited with Federal Express (or other equivalent national overnight
courier) or United States Express Mail, with the cost of delivery prepaid or for
the account of the sender; (ii) on the fifth Business Day following the day duly
sent by certified or registered United States mail, postage prepaid and return
receipt requested; or (iii) when otherwise actually received by the addressee on
a Business Day (or on the next Business Day if received after the close of
normal business hours or on any non-Business Day).
Section 13. Further Assurances. Each Party agrees to do such further
acts and things and to execute and deliver such statements, assignments,
agreements, instruments and other documents as the other Party from time to time
reasonably may request in order to effectuate the purpose and the terms and
provisions of this Agreement, each in such form and substance as may be
acceptable to the Parties.
-6-
7
Section 14. Interpretation, Headings, Severability, Etc. The parties
acknowledge and agree that the terms and provisions of this Agreement have been
negotiated, shall be construed fairly as to all parties hereto, and shall not be
construed in favor of or against any party. The section headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. In the event that any term or provision of
this Agreement shall be finally determined to be superseded, invalid, illegal or
otherwise unenforceable pursuant to applicable law by a governmental authority
having jurisdiction and venue, that determination shall not impair or otherwise
affect the validity, legality or enforceability (a) by or before that authority
of the remaining terms and provisions of this Agreement, which shall be enforced
as if the unenforceable term or provision were deleted or reduced pursuant to
the next sentence, as applicable, or (b) by or before any other authority of any
of the terms and provisions of this Agreement. If any term or provision of this
Agreement is held to be unenforceable because of the scope or duration of any
such provision, the parties agree that any court making such determination shall
have the power, and is hereby requested, to reduce the scope or duration of such
term or provision to the maximum permissible under applicable law so that said
term or provision shall be enforceable in such reduced form.
Section 15. Successors and Assigns; Assignment; Intended Beneficiaries.
Whenever in this Agreement reference is made to any person, such reference shall
be deemed to include the successors, assigns, heirs and legal representatives of
such person, and, without limiting the generality of the foregoing, all
representations, warranties, covenants and other agreements made by or on behalf
of any Party in this Agreement shall inure to the benefit of the successors,
assigns, heirs and legal representatives of each other Party; provided, however,
that nothing herein shall be deemed to authorize or permit any Party to assign
any of its rights or obligations under this Agreement to any other person, and
each Party covenants and agrees that it shall not make any such assignment,
without the prior written consent of the other Parties. The representations,
warranties and other terms and provisions of this Agreement are for the
exclusive benefit of the Parties hereto, and, except as otherwise expressly
provided herein, no other person (including creditors of any party hereto) shall
have any right or claim against any Party by reason of any of those terms and
provisions or be entitled to enforce any of those terms and provisions against
any Party.
Section 16. No Waiver by Action, Etc. Any waiver or consent respecting
any representation, warranty, covenant or other term or provision of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which given and shall not be deemed, regardless of frequency given,
to be a further or continuing waiver or consent. The failure or delay of a Party
at any time or times to require performance of, or to exercise its rights with
respect to, any representation, warranty, covenant or other term or provision of
this Agreement in no manner (except as otherwise expressly provided herein)
shall affect its right at a later time to enforce any such provision. No notice
to or demand on any Party in any case shall entitle such Party to any other or
further notice or demand in the same, similar or other circumstances. All
rights, powers, privileges, remedies and other interests of each Party hereunder
are cumulative and not alternatives, and they are in addition to and shall not
limit (except as otherwise expressly provided herein) any other right, power,
privilege, remedy or other interest of such Party under this Agreement or
applicable law.
-7-
8
Section 17. Counterparts; New York Governing Law; Amendments; Entire
Agreement. This Agreement shall be effective as of the date first written above
when executed by all of the Parties. This Agreement may be executed in two or
more counterpart copies of the entire document or of signature pages to the
document, each of which may be executed by one or more of the Parties, but all
of which, when taken together, shall constitute a single agreement binding upon
all of the Parties. This Agreement shall be governed by and construed in
accordance with the applicable laws pertaining in the State of New York (other
than those that would defer to the substantive laws of another jurisdiction).
Each and every modification and amendment of this Agreement shall be in writing
and signed by all of the Parties, and each and every waiver of, or consent to
any departure from, any representation, warranty, covenant or other term or
provision of this Agreement shall be in writing and signed by each affected
Party. This Agreement and the other Merger Documents contain the entire
agreement of the parties and supersede all prior and other representations,
agreements and understandings (oral or otherwise) between the parties with
respect to the matters contained herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first written above.
PIA MERCHANDISING SERVICES, INC.
/s/ Clinton E. Owens By: /s/ Terry R. Peets
- ---------------------------------- ------------------------------------
CLINTON E. OWENS Name: Terry R. Peets
Title: President and Chief Executive
Officer
RVM/PIA, A CALIFORNIA LIMITED SPAR ACQUISITION, INC.
PARTNERSHIP
By: Riordan, Lewis & Haden By: /s/ Robert G. Brown
Its: General Partner ------------------------------------
Name: Robert G. Brown
Title: Chairman, Chief Executive
Officer and President
By: /s/ Patrick C. Haden
------------------------------
Name: Patrick C. Haden
Its: General Partner
/s/ Robert G. Brown /s/ William H. Bartels
- ----------------------------------- ---------------------------------------
ROBERT G. BROWN WILLIAM H. BARTELS
-8-