EXHIBIT 6.7
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of this 3rd day of
March, 1997, by and among Platinum Entertainment, Inc. ("Buyer"), Mr. Philip
Kives, an individual, K-5 Leisure Products, Inc., a Minnesota corporation
("K-5"), and National Development Ltd., a Manitoba corporation ("NDL") (Mr.
Kives, K-5 and NDL individually, a "Shareholder" and collectively, the
"Shareholders").
RECITALS:
WHEREAS, this Voting Agreement is being entered into in connection with
that certain Purchase and Sale Agreement, dated of even date herewith, by and
between Buyer and K-tel International, Inc. ("Seller") (the "Purchase
Agreement"), whereby Buyer is purchasing from Seller all of the issued and
outstanding shares of capital stock of two wholly-owned subsidiaries of Seller,
K-tel International (USA), Inc. and Dominion Entertainment, Inc. (the
"Contemplated Transaction").
WHEREAS, the consummation of the Contemplated Transaction requires that
the requisite shareholders of Seller vote upon and approve the Contemplated
Transaction;
WHEREAS, Mr. Kives is the beneficial owner of certain shares of capital
stock of Seller;
WHEREAS, K-5 and NDL are controlled by Mr. Kives and each of K-5 and
NDL are the beneficial owners of certain shares of capital stock of Seller;
WHEREAS, the Shareholders, own in excess of 70% of the of the issued
and outstanding voting capital stock of Seller as of the date hereof; and
WHEREAS, this Voting Agreement is an inducement to, and requirement of,
Buyer entering into the Purchase Agreement, and the Shareholders have agreed to
document their agreement in their capacity as the beneficial owners of capital
stock of Seller (for Mr. Kives, solely in his capacity as a shareholder of
Seller but not in his capacity as an officer or director of Seller) to vote the
outstanding shares of Seller beneficially owned by each of them for the
Contemplated Transaction.
NOW, THEREFORE, in consideration of the foregoing premises and the
following agreements, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Voting
Agreement hereby agree as follows:
I. VOTING FOR THE CONTEMPLATED TRANSACTION
To facilitate the execution and delivery of the Purchase Agreement and
satisfy the condition thereunder that the requisite shareholders of Seller duly
approve the Contemplated Transaction, each of the Shareholders agree on behalf
of themselves and any person to whom any of them transfer any shares of Voting
Stock (as defined herein), during the term hereof, to vote any and all shares of
Voting Stock beneficially owned by them and any and all outstanding shares of
Voting Stock over which each of them has voting control in favor of the Purchase
Agreement and the Contemplated Transaction at the meeting of Seller's
shareholders to consider approval of the Contemplated Transaction. In the event
that such action is proposed in the form of a written consent thereto, the
Shareholders shall execute any consent form provided for such purpose to approve
the Contemplated Transaction. To facilitate the execution and delivery of the
Purchase Agreement and satisfy the condition thereunder that the requisite
shareholders of Seller duly approve the Contemplated Transaction the
Shareholders agree and confirm that, in connection with the Contemplated
Transaction, none of them shall demand an appraisal of the shares of Voting
Stock beneficially owned by each of them in connection with the Contemplated
Transaction in accordance with Section 302A.471 and 302A.473 of the Minnesota
Business Corporation Act or any applicable Canadian corporation law. As used in
this Agreement, the term "Voting Stock" means the voting stock or other
securities of any class, classes or series of the Seller, the holders of which
are entitled to vote on the Contemplated Transaction and the Purchase Agreement.
II. REPRESENTATIONS, WARRANTIES AND COVENANTS
Representations and Warranties. Each Shareholder
severally, and not jointly and severally, represents and warrants to Buyer that:
the execution, delivery and performance of
this Voting Agreement has been duly authorized by all necessary action of the
Shareholder and constitutes the valid and binding obligation of such
Shareholder, enforceable in accordance with the terms hereof except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by the principles governing the availability of equitable remedies;
the Shareholder has not granted and is not a
party to any proxy, voting trust or other agreement which is inconsistent with,
conflicts with or violates the provisions of this Voting Agreement; and
the execution, delivery and performance of
this Voting Agreement will not conflict with or result in the breach or
violation of any of the terms or conditions of, or constitute (or with notice or
lapse of time or both, would constitute) a default under, (i) its organizational
documents to the extent applicable (ii) any instrument, contract or other
agreement by or to which he is a party or his assets are bound or subject; (iii)
any statute or regulation, order, judgment or decree of any court or
governmental or regulatory body; or (iv) any license, permit, order or approval
of any governmental or regulatory body. No approval or consent of any foreign,
Federal, state, county, local or other governmental or regulatory body or court
and no approval or consent of any other person is required in connection with
the execution, delivery or performance of this Voting Agreement by him or it as
the case may be.
Covenants. Each Shareholder severally, and not
jointly, covenants that he or it as the case may be:
shall execute such documents and other
papers and perform such further acts as may be reasonably required or desirable
to carry out the provisions of this Voting Agreement;
shall not grant any proxy or become party to
any voting trust or other agreement which is inconsistent with, conflicts with
or violates the provisions of this Voting Agreement during the term hereof;
shall not during the term hereof sell,
transfer, assign, pledge or otherwise dispose of any interest in any Voting
Stock unless and until the person or entity to whom such security is to be
transferred shall have executed a written agreement, substantially in the form
of this Voting Agreement, pursuant to which such person becomes a party to this
Voting Agreement and agrees to be bound by all the provisions hereof as if such
person were an original party to this Voting Agreement; and
shall not and shall not authorize or permit
any of his or its as the case may be, financial advisors, attorneys, accountants
or other representatives retained by him or it as the case may be, (for Mr.
Kives, solely in his capacity as a shareholder of Seller but not in his capacity
as an officer or director of Seller) to solicit, initiate or encourage
(including by way of furnishing information), or take any other action to
facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any tender or exchange offer, proposal
for a merger, consolidation or other business combination involving the
Subsidiaries or the Business (as such terms are defined in the Purchase
Agreement), or any proposal or offer to acquire in any manner a material equity
interest in, or a material portion of the assets of, the Subsidiaries or the
Business, other than the transactions contemplated by the Purchase Agreement or
agree to or endorse any such proposal, or engage in any negotiations or
discussions with any person relating to any such proposal. The Shareholders
shall promptly advise Buyer orally and in writing of any inquiries regarding, or
offers of, any such proposal.
III. MISCELLANEOUS
a. Transferees Bound. This Voting Agreement shall
bind and inure to the benefit of the successors, heirs, personal
representatives, transferees and assigns of the parties hereto.
b. Termination of Voting Agreement. This Voting
Agreement shall terminate only upon the first to occur of the following events:
(i) the closing of the Contemplated
Transaction; or
(ii) the termination of the Purchase
Agreement, in accordance with the terms contained
therein.
c. Entire Agreement. This Voting Agreement
constitutes the entire agreement of, and supersedes any prior agreement among,
the undersigned with respect to the subject matter hereof.
d. Amendments. This Voting Agreement may be amended,
or any provision hereof waived, only if approved by the written consent of all
of the parties hereto.
e. Remedies for Breach. It is expressly understood
that the equitable remedies of specific performance and injunction shall be
available for the enforcement of the covenants and agreements herein, and that
the availability of these equitable remedies shall not be deemed to limit any
other right or remedy to which any party to this Voting Agreement otherwise
would be entitled.
f. Notices. Any notice permitted or required
hereunder shall be in writing and shall be given by personal delivery or by
deposit in the U.S. registered or certified mail, return receipt requested,
addressed, in the case of the Buyer, to its President, at Buyer's principal
place of business in the State of Illinois, and, in the case of the
Shareholders, to the last address reflected on the records of Seller, or to such
other address as any party may designate by written notice to the others in
accordance with this subsection.
g. Waivers. No waiver of any provision of this
Voting Agreement shall be implied, and no express waiver shall be valid, unless
in writing and signed by the party to be charged. No waiver of any breach of any
of the terms, provisions or conditions of this Voting Agreement shall be
construed as, or held to be a waiver of, any other breach or a waiver of,
acquiescence in, or consent to, any further or succeeding breach hereof.
h. Severability. If any provision of this Voting
Agreement is determined to be invalid or unenforceable, the remaining provisions
of this Voting Agreement shall not be affected thereby and shall be binding upon
the parties.
i. Governing Law. This Voting Agreement shall be
construed and enforced, and all questions concerning compliance by any person
with its terms shall be determined, under the laws of the State of Delaware,
without regard to principles of conflicts of law.
j. Counterparts. This Voting Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same agreement.
k. Headings. The headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Voting Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be signed as of the date first written above.
BUYER:
PLATINUM ENTERTAINMENT, INC.
By:
Its:
SHAREHOLDERS:
Philip Kives, individually
K-5 LEISURE PRODUCTS, INC.
By:
Its:
NATIONAL DEVELOPMENT LTD.
By:
Its: