AGREEMENT
AGREEMENT dated as of June 16, 1998, among Carlton Communications Plc,
a company organized under the laws of England ("Parent"), Neptune Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"),
and the other parties signatory hereto (each a "Stockholder" and collectively,
the "Stockholders").
W I T N E S S E T H :
WHEREAS, contemporaneously herewith, Parent, Sub and Nimbus CD
International, Inc., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to and subject to the conditions of which Sub will, as soon as
practicable (and not later than five business days) after the execution and
delivery of the Merger Agreement, commence an offer to purchase all of the
issued and outstanding shares of Company Common Stock (the "Offer") and Sub will
be merged with and into the Company (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Sub have required that the Stockholders agree, and the
Stockholders have each agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the common stock,
$0.01 par value, of the Company.
(b) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Tender of Shares.
(a) Each Stockholder hereby agrees to, as promptly as practicable (and
in no event later than the tenth day (or if such day is not a business day, the
next succeeding business day immediately thereafter) after commencement of the
Offer), validly tender (and not to withdraw) pursuant to and in accordance with
the terms of the Offer (provided that the Offer is not amended in a manner
prohibited by the Merger Agreement), in a timely manner for acceptance by Sub in
the Offer, the number of shares of Company Common Stock set forth opposite such
Stockholder's name on Schedule I hereto (the "Existing Shares" and, together
with any shares of Company Common Stock acquired by such Stockholder after the
date hereof and prior to the termination of this Agreement whether upon the
exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise and acquired by such Stockholder solely in its
capacity as a stockholder, the "Shares"), owned by such Stockholder. Each
Stockholder hereby acknowledges and agrees that Sub's obligation to accept for
payment and pay for Company Common Stock in the Offer, including the Shares, is
subject to the terms and conditions of the Offer.
(b) Each Stockholder agrees that if (i) at any time prior to the
expiration or termination of the Offer, (A) any Person shall have become the
beneficial owner of 50% or more of the outstanding shares of Common Stock or (B)
any Person makes or publicly announces an intention to make an Acquisition
Proposal or (C) the Company enters into an agreement with any Person with
respect to an Acquisition Proposal and (ii) at any time (x) in the case of (A)
within one year thereafter, (y) in the case of (B), within the period ending on
the thirtieth day after the withdrawal of such Acquisition Proposal, unless such
Person or any of its affiliates shall have entered into an Agreement with the
Company or any one or more Stockholders or their respective affiliates regarding
an Acquisition Proposal or have publicly announced a new or amended Acquisition
Proposal (in which event the termination of such period shall be tolled) and (z)
in the case of (C), within the period ending on the thirtieth day after the
termination of such agreement, unless such Person or any of its affiliates shall
have entered into a new or amended agreement with the Company or any one or more
Stockholders or their respective affiliates regarding an Acquisition Proposal or
have made or publicly announce an intention to make an Acquisition Proposal (in
which event the termination of such period shall be tolled), such Stockholder
sells or otherwise transfers or disposes of any of such Stockholder's Existing
Shares or any other shares of Common Stock of which such Stockholder becomes the
owner prior to the date of such sale or other transfer or disposition or any
shares of Common Stock that such Stockholder currently has the right to acquire
then, such Stockholder shall, as promptly as practicable (but in any event
within two business days after the later of the date of such sale or other
transfer or disposition, provided, that, if the fair market value of any portion
of the consideration is subject to the process for determination of its fair
market value set forth below, the payment relating to such portion of the
consideration shall be made no later than two business days after the date of
agreement or such determination) pay to Sub (or its designee) by wire transfer
of immediately available funds an amount in cash equal to the product of (i) the
number of such shares of Common Stock so sold or otherwise transferred and (ii)
the positive difference between value of the consideration per share of Common
Stock paid pursuant to such sale or other transfer or disposition and $11.50.
For purposes of the foregoing, the parties agree that the value of the
consideration per share of Common Stock paid pursuant to such sale or other
transfer or disposition shall be deemed to include the value of any dividends or
other distributions of any kind whatsoever (including, by means of stock
dividend, cash dividend, stock split, recapitalization, combination,
reorganization, exchange of shares of Common Stock or otherwise) received or
distributable in respect of such shares of Common Stock held on or prior to the
date of such sale or other transfer or disposition and that no Stockholder shall
sell, distribute or otherwise transfer (including by means of liquidation) such
shares of Common Stock to any of its limited partners, general partners, family
members or other affiliates unless such transferee first agrees in writing for
the benefit of Sub and Parent (in form reasonably satisfactory to Sub and
Parent) that such transferee agrees to be bound by the provisions of this
Agreement. For purposes of determining the value of the consideration paid per
share of Common Stock and the value of any distributions with respect to shares
of Common Stock, the parties agree that (i) the value of any part of such
consideration or distribution paid in cash shall be such cash value and (ii) any
part of such consideration or distribution paid in securities or other property
shall be valued at the fair market value of such securities or other property as
of the date of such sale or other transfer or disposition. For purposes of the
preceding clause (ii), the parties agree that the fair market value of
securities or other property shall be determined as follows: (A) if such
securities or other property are publicly traded, the fair market value of such
securities or other property shall be the average of the high and low sales
prices of such securities or other property as publicly reported by or for the
principal exchange or other market on which such securities or other property
are traded on the date of such sale or other transfer or disposition and (B) if
such securities or other property are not publicly traded and the parties cannot
otherwise agree on their fair market value within two business days after the
sale or other transfer or disposition, by averaging the fair market values of
such securities or other property as determined within five business days after
such sale or other transfer or disposition by two internationally recognized
investment banking firms, one chosen by Sub and one chosen by the Stockholders
(acting together); provided, however, that if such investment banking firms
shall fail to make such determinations within such time period or the fair
market values of such securities or other property as of the date of such sale
or other transfer or disposition as determined by such investment banking firms
differ by more than 10% of the lower of the two values, such determination
(which shall be final and binding on all parties hereto) shall be made within 10
business days after the sale or other transfer or disposition by a third
internationally recognized investment banking firm chosen by the other two
investment banking firms. The parties agree to use reasonable best efforts to
ensure the prompt payment, and if necessary, the prompt determination of the
fair market value of any securities or other property pursuant to this
paragraph, it being understood and agreed that, without limiting the generality
of the foregoing, it is the intent of the parties that Sub, and not the
Stockholders, should receive the value of the consideration in excess of $11.50
from any sale or other transfer or disposition of the shares of Common Stock
subject to this Agreement as a result of any change in control or agreement
relating to or public announcement of the making of or an intention to make an
Acquisition Proposal prior to the date the Offer is terminated or otherwise
expires. For purposes of this Agreement, an Acquisition Proposal shall be deemed
to include an acquisition (or series of acquisitions) by the Company pursuant to
which the Company issues shares of Common Stock constituting, in the aggregate,
more than the number of issued and outstanding shares of Common Stock as of the
date of this Agreement and, in such circumstances, the value of the
consideration received for the shares of Common Stock subject to this paragraph
shall be the fair market value of such shares of Common Stock as of the date of
any such acquisitions by the Company.
(c) Each Stockholder hereby agrees to permit Parent and Sub to publish
and disclose in the Offer Documents and, if approval of the stockholders of the
Company is required under applicable law, the Proxy Statement (including all
documents and schedules filed with the SEC) its identity and ownership of
Company Common Stock and the nature of its commitments, arrangements and
understandings under this Agreement.
3. Provisions Concerning Company Common Stock. Each Stockholder hereby
agrees that during the period commencing on the date hereof and continuing until
the first to occur of (i) the Effective Time and (ii) the termination of this
Agreement pursuant to Section 8 hereof at any meeting of the holders of Company
Common Stock, however called, or in connection with any written consent of the
holders of Company Common Stock, such Stockholder shall vote (or cause to be
voted) the Shares owned by such Stockholder whether issued, heretofore owned or
hereafter acquired, (i) in favor of the Merger and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or of such Stockholder under this Agreement; and (iii) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or its
subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; or (C) (1) any
change in a majority of the persons who constitute the board of directors of the
Company; (2) any change in the present capitalization of the Company or any
amendment of Company's Certificate of Incorporation or By-laws; (3) any other
material change in the Company's corporate structure or business; or (4) any
other action involving the Company or its subsidiaries which is intended, or
could reasonably be expected, to prevent, impede, interfere with, delay,
postpone, or materially adversely affect the Offer, the Merger or the
consummation of the transactions contemplated by this Agreement and the Merger
Agreement. No Stockholder shall enter into any agreement or understanding with
any Person or entity the effect of which would be to violate the provisions and
agreements contained in this Section 3.
4. Representations and Warranties of the Stockholders. Each
Stockholder, as to itself, hereby severally represents and warrants to Sub and
Parent as follows:
(a) Legal Status. If such Stockholder is a corporation, partnership or
other similar business entity, such Stockholder is a duly organized and validly
existing corporation, partnership or other similar business entity, as the case
may be, in good standing under the laws of its jurisdiction of organization.
(b) Ownership of Shares. Such Stockholder is the record and beneficial
owner of the number of Shares set forth opposite such Stockholder's name on
Schedule I hereto. On the date hereof, the Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the Shares owned
by such Stockholder. Except as set forth on Schedule I, such Stockholder has
sole voting power and sole power to issue instructions with respect to the
matters set forth in Sections 2 and 3 hereof, sole power of disposition, sole
power of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Existing Shares set forth opposite such Stockholder's name
on Schedule I hereto, with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement. Other than this Agreement and the Merger Agreement, 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 the
Existing Shares, any interest therein or any rights with respect thereto, or
related to the voting, disposition or control of the Existing Shares, or (ii)
obligates such Shareholder to grant, offer or enter into any of the foregoing.
(c) Power; Binding Agreement. Such Stockholder has the legal capacity,
power and authority to execute, deliver and enter into this Agreement, comply
with all of terms and provisions of this Agreement, perform all of such
Stockholder's obligations under this Agreement and consummate all of the
transactions involving such Stockholder contemplated by this Agreement and has
taken all necessary corporate or other action necessary to authorize the
execution, delivery and performance by such Stockholder of this Agreement and
the consummation of the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by such Stockholder will not violate
any other agreement to which such Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement or voting trust. This
Agreement has been duly and validly authorized (if such Stockholder is a
corporation, partnership or other similar business entity), executed and
delivered by such Stockholder and constitutes a valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency and
other similar laws affecting creditors' rights generally or by general
principles of equity. There is no other person whose consent is required for the
execution, delivery and performance of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby whose unconditional and
irrevocable consent has not heretofore been obtained.
(d) No Conflicts. Except for the required filings and the expiration
or earlier termination of the required waiting period under the HSR Act, (A) No
filing with, and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby and (B) none of the execution and delivery of
this Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereof shall (1) if such Stockholder is a corporation,
partnership or other similar business entity, conflict with or violate the
certificate of incorporation, bylaws, partnership agreement or other
organizational documents or instruments of such Stockholder, as the case may be,
(2) conflict with or result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder or any of its properties or assets may be
bound, (3) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or to which any of
its properties or assets are subject or (4) result in the creation of any
claims, liens, restrictions, security interests, pledges, limitations and
encumbrances of any kind.
(e) No Encumbrances. Such Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances of any kind whatsoever, except for any such encumbrances or
proxies arising hereunder. The transfer by such Stockholder of its Shares to Sub
in the Offer or otherwise pursuant to this Agreement shall pass to and
unconditionally vest in Sub good and valid title to all Shares, free and clear
of all claims, liens, restrictions, security interests, pledges, limitations and
encumbrances of any kind whatsoever.
(f) Broker's or Finder's Fees. No agent, broker, person or firm acting
on behalf of such Stockholder or any of its Affiliates (other than the Company)
is, or will be, entitled to any commission or broker's or finder's fees from any
Person other than such Stockholder or its Affiliates (other than the Company) in
connection with any of the sale of its Shares as contemplated by this Agreement.
(g) Offer Documents and Schedule 14D-9. None of the information
supplied by such Stockholder for inclusion or incorporation by reference in the
Offer Documents, the Company's Schedule 14D-9, at the respective times the Offer
Documents or the Company's Schedule 14D-9 are filed with the SEC and the date
they are first published, sent or given to the holders of Common Stock, will
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made, in light of the
circumstances under which they are made, not misleading. Such Stockholder agrees
promptly to correct any information provided by it for use in the Offer
Documents, or the Company's Schedule 14D-9 that shall be, or shall have become,
false or misleading in any material respect.
(h) Reliance by Parent. Such Stockholder understands and acknowledges
that Sub and Parent are each entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
5. Covenants of the Stockholders. Each Stockholder covenants and
agrees as follows:
(a) Restriction on Transfer, Proxies and Non-Interference. Beginning
on the date hereof and ending on the date this Agreement shall terminate
pursuant to Section 8 hereof, such Stockholder shall not (i) except as
contemplated by the Offer or this Agreement, directly or indirectly, 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 of, any or all of such
Stockholder's Shares or any interest therein; (ii) grant any proxies or powers
of attorney, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any 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 such Stockholder from
performing such Stockholder's obligations under this Agreement.
(b) Waiver of Appraisal Rights. Such Stockholder hereby irrevocably
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(c) Stop Transfer; Changes in Shares. Such Stockholder agrees with,
and covenants to, Parent and Sub that such Stockholder shall not request that
the Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made to Sub in compliance with the Offer or this Agreement. In
the event of a stock dividend or distribution, or any change in the capital
stock of the Company by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged and the purchase price per Share shall be
appropriately adjusted. Such Stockholder shall be entitled to receive any cash
dividend paid by the Company during the term of this Agreement until its Shares
are purchased in the Offer or hereunder.
(d) Exclusive Dealing. (a) Such Stockholder and each of its officers,
directors, employees, representatives, consultants, investment banker,
attorneys, accountants, agents or advisors (collectively "Agents") shall
immediately cease any discussions or negotiations with any other parties that
may be ongoing with respect to any purchase of such Stockholder's Shares or any
Acquisition Proposal (as defined below). Such Stockholder shall not, directly or
indirectly, take (and no Stockholder shall authorize or permit its Agents to so
take) any action to (i) encourage, solicit or initiate the making of any offer
to purchase such Stockholder's Shares or any Acquisition Proposal, (ii) enter
into any agreement with respect to any offer to purchase such Stockholder's
Shares or any Acquisition Proposal, or (iii) participate in any way in
discussions or negotiations with, or furnish or disclose any information to, any
Person (other than Parent or Sub) in connection with, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any offer to purchase such Stockholder's
Shares or any Acquisition Proposal.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary, the covenants and agreements set forth herein shall not require any
Stockholder, acting in his capacity as an officer or director of the Company, to
breach his fiduciary duties as a director of the Company to the Company and its
stockholders.
7. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, each of the parties hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(d) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party provided
that Parent and Sub may assign, at their respective sole discretion, their
respective rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of Parent, although no such assignment shall relieve
Parent or Sub of their respective obligations hereunder if such assignee does
not perform such obligations and provided further that, in the event of a
Stockholder's death or incapacity, such Stockholder's rights hereunder shall
inure to his heirs, guardians, administrators or successors.
(e) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the relevant
parties (e.g., Parent, Sub and, any one or more Stockholders with respect to the
respective rights and obligations as among Parent, Sub and such Stockholders
under this Agreement).
(f) 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 received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to a Stockholder: At the address set forth on Schedule I hereto
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr.
If to Parent:
Carlton Communications Plc
25 Knightsbridge
London SW1X 7RZ England
Attention: David Abdoo
copy to: Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: David M. Kies
If to Sub:
Neptune Acquisition Corp.
3233 East Mission Oaks Blvd.
Camarillo, California 93012
Attention: Thomas Collins
copy to: Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: David M. Kies
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the Southern
District of New York or any court of the State of New York located in the City
of New York in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (m) and
shall not be deemed to be a general submission to the jurisdiction of said
Courts or in the State of New York other than for such purposes. EACH PARTY
HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH
ACTION, SUIT OR PROCEEDING.
(n) Descriptive Headings. The descriptive headings used 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.
(o) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
8. Termination. This Agreement (other than Section 2(b) and Sections 7
and 8 which shall survive termination of this Agreement until any amounts due
and payable by any Stockholder pursuant to Section 2(b) have been paid) shall
terminate upon the termination of the Merger Agreement pursuant to Article VI
thereof and thereafter no party shall have any rights or obligations hereunder
and this Agreement shall become null and void and have no effect except that
nothing in this Section 8 shall relieve any party of liability for a breach of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of Parent, Sub and the Stockholders has
caused this Agreement to be duly executed as of the day and year first above
written.
CARLTON COMMUNICATIONS PLC
By: ______________________________________
Name:
Title:
NEPTUNE ACQUISITION CORP.
By: ______________________________________
Name:
Title:
STOCKHOLDERS
Name of Stockholder Number of Existing Shares
BEHRMAN CAPITAL L.P. 3,306,037
By: Behrman Brothers L.P., general partner
By: ______________________________
Darryl Behrman, general partner
BEHRMAN CAPITAL "B" L.P. 298,278
By: Behrman Brothers L.P., general partner
By: ______________________________
Darryl Behrman, general partner
STRATEGIC ENTREPRENEUR FUND, L.P. 65,751
By: __________________________________
Darryl Behrman, general partner
---------
Subtotal 3,670,066
The address of the foregoing Stockholders is 126 E.56th Street, New York,
New York 10022, Attention: Darryl Behrman.
(LIST OF STOCKHOLDERS CONTINUED ON NEXT PAGE)
STOCKHOLDERS (cont.)
Name of Stockholder Number of Existing Shares
McCOWN DE LEEUW & CO. III, L.P. 4,478,412
By: MDC Management Company III, L.P., general partner
By: ______________________________
Charles Ayres, general partner
McCOWN DE LEEUW & CO. (Europe) III, L.P. 774,046
By: MDC Management Company IIIA, L.P., general partner
By: ______________________________
Charles Ayres, general partner
McCOWN DE LEEUW & CO. (Asia) III, L.P. 82,931
By: MDC Management Company IIIA, L.P., general partner
By: ______________________________
Charles Ayres, general partner
GAMMA FUND LLC 193,512
By: __________________________________
Charles Ayres, member
---------
Subtotal 5,528,901
The address of each of the foregoing Stockholders is 101 East 52nd Street,
New York, New York 10022. Attention Charles Ayres.
______________________________________ 0
Lyndon J. Faulkner
______________________________________ 174,355
L. Steven Minkel
The address of each of the foregoing Stockholders is Nimbus CD
International Inc., 623 Welsh Run Road, Guildford Farm, Ruckersville, Virginia
22968
---------
TOTAL SHARES 9,373,322