VOTING AND LOCK-UP AGREEMENT
THIS VOTING AND LOCK-UP AGREEMENT dated May 22, 2000 by and between
JAKKS Pacific, Inc., a Delaware corporation ("JAKKS"), and the stockholders of
Pentech International Inc., a Delaware corporation ("Pentech"), listed on the
signature page hereof (each, a "Principal Stockholder").
W I T N E S S E T H:
WHEREAS, concurrently herewith, JAKKS and Pentech are entering into an
Agreement of Merger, pursuant to which a subsidiary of JAKKS will merge into
Pentech (the "Merger Agreement"); and
WHEREAS, each Principal Stockholder has determined that the Merger is in
the best interests of Pentech and its stockholders, and intends to endorse and
vote in favor of the Merger; and
WHEREAS, JAKKS is requiring that the Principal Stockholders enter into this
agreement as a condition to its entering into the Merger Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms, not otherwise defined herein, are
used herein as defined in the Merger Agreement.
2. Voting Agreement.
2.1 Each Principal Stockholder shall cause all shares of Pentech
Common Stock owned by him on the record date for the Stockholders' Meeting or
as to which he has or may exercise the right to vote or to direct the manner of
voting to be voted at the Stockholders' Meeting or at any other meeting of
Pentech's stockholders or in connection with any other action, including
action by written consent, of Pentech's stockholders relating to this
Agreement or the Merger:
(a) to adopt the Merger Agreement and to approve the Merger,
and in favor of any other action that could reasonably be expected to
facilitate the Merger; and
(b) against any action or proposal that could reasonably be
expected to result in the failure of any of the conditions to the obligations
of the parties to the Merger Agreement with respect to the Merger or otherwise
prevent, interfere with or delay the consummation of the Merger.
3. Lock-Up and Other Covenants.
3.1 No Principal Stockholder shall, without the prior written
consent of JAKKS:
(a) except as set forth on Schedule I, sell, assign, pledge or
otherwise transfer or dispose of any shares of Pentech Common Stock or create
or suffer to exist any Lien upon any shares of Pentech Common Stock owned by
him;
(b) agree or consent to relinquish or limit any right which he
has or may exercise to vote or to direct the manner of voting of any shares of
Pentech Common Stock; or
(c) enter into any agreement, commitment or arrangement by
which any other Person would acquire any right to vote or to direct the manner
of voting any shares of Pentech Common Stock.
3.2 No Principal Stockholder shall make in such capacity any public
statement or to take a public position adverse to or inconsistent with the
approval and recommendation of the Merger.
3.3 Each Principal Stock agrees to resign, effective as of the
Effective Time, from each position as a director or officer of Pentech or a
Subsidiary which he may occupy immediately prior to the Effective Time.
3.4 JAKKS and each Principal Stockholder agree to execute and
deliver to each other at the Closing the Services Agreement relating to such
Principal Stockholder.
4. Acknowledgments. Each of the Principal Stockholders expressly
acknowledges that:
(a) he will receive a direct and substantial pecuniary benefit
from the consummation of the Merger; and
(b) JAKKS and Newco are relying upon the agreements,
covenants, representations and warranties of the Principal Stockholders set
forth in this Agreement as a substantial inducement for each of them to enter
into the Merger Agreement and to effect the Merger.
5. Representations and Warranties. Each Principal Stockholder hereby
represents and warrants to JAKKS as follows:
(a) such Principal Stockholder owns beneficially and of record
all of the shares of Pentech Common Stock set forth opposite his name on
Schedule I free and clear of all Liens or any restriction with respect to the
voting or disposition thereof (except as set forth on Schedule I and except for
any such restriction provided in this Agreement and other than restrictions
of general applicability imposed by federal or state securities Laws), and
has the sole right to vote such shares at the Stockholders' Meeting, and has
the right to vote or to direct the manner of voting of such other shares of
Pentech Common Stock as are set forth on Schedule I;
(b) such Principal Stockholder has the power and authority to
execute and deliver this Agreement and to assume and perform his obligations
hereunder;
(c) this Agreement has been duly executed and delivered by such
Principal Stockholder and is his legally valid and binding obligation,
enforceable against him in accordance with its terms, subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar Laws now or hereafter
in effect relating to creditors' rights generally and (ii) equitable principles
limiting the availability of specific performance, injunctive relief and
other equitable remedies;
(d) the execution and delivery of this Agreement do not, and
the performance by such Principal Stockholder of his obligations hereunder will
not, create any Lien upon any shares of Pentech Common Stock owned by him or
violate, conflict with, result in any breach of, or constitute a default under
any agreement, indenture, instrument, Lien, Law or Order to which he is a
party or is subject or which is or purports to be binding upon him or his
assets; and
(e) no Consent of, Notice to, any Person is required as to such
Principal Stockholder in connection with his execution and delivery of this
Agreement or the performance of his obligations hereunder.
6. Termination. The obligations of the parties hereto shall terminate
at the Effective Time, subject to the performance and satisfaction of all such
obligations prior to or at the Closing or, if the Merger does not become
effective, at the time of termination of the Merger Agreement in
accordance with the provisions thereof, unless such termination is contested by
JAKKS in good faith in a Proceeding in a court of competent jurisdiction, in
which case this Agreement shall remain in full force and effect until the
resolution of such Proceeding by an Order that is final beyond appeal
determines the effectiveness and time of such termination; provided that
the provisions of Sections 4 and 5 and any claim of any party hereto of a breach
of any representation, warranty, covenant or other provision hereof by any
other party hereto shall survive such termination.
7. Limitation of Authority. Except as expressly provided herein, no
provision hereof shall be deemed to create any partnership, joint venture or
joint enterprise or association between the parties hereto, or to authorize
or to empower any party hereto to act on behalf of, obligate or bind
any other party hereto.
8. Notices. Any Notice or demand required or permitted to be given or
made hereunder to or upon any party hereto shall be deemed to have been duly
given or made for all purposes if (a) in writing and sent by (i) messenger or
an overnight courier service against receipt, or (ii) certified
or registered mail, postage paid, return receipt requested, or (b) sent by
telegram, telecopy, telex or similar electronic means, provided that a written
copy thereof is sent on the same day by postage-paid first-class mail, to such
party at the following address:
to JAKKS at: 22761 Pacific Coast Highway
Malibu, California 90265
Attn: President
Fax: (310) 317-8527
with a copy to: Feder, Kaszovitz, Isaacson,
Weber, Skala & Bass LLP
750 Lexington Avenue
New York, New York 10022
Attn: Murray L. Skala, Esq.
Fax: (212) 888-7776
to a Principal Stockholder: c/o Kalin & Associates, P.C.
One Penn Plaza - Suite 1425
New York, NY 10119
Attn: Richard S. Kalin, Esq.
Fax: (212) 239-8401
with a copy to: Richard S. Kalin, Esq.
Kalin & Associates, P.C.
One Penn Plaza - Suite 1425
New York, NY 10119
Fax: (212) 239-8401
or such other address as either party hereto may at any time, or from time to
time, direct by Notice given to the other party in accordance with this Section.
The date of giving or making of any such Notice or demand shall be, in the case
of clause (a)(i), the date of the receipt; in the case of clause (a)(ii), five
business days after such Notice or demand is sent; and, in the case of clause
(b), the business day next following the date such Notice or demand is sent.
9. Amendment. Except as otherwise provided herein, no amendment of this
Agreement shall be valid or effective, unless in writing and signed by or on
behalf of the parties hereto.
10. Waiver. No course of dealing or omission or delay on the part of any
party hereto in asserting or exercising any right hereunder shall constitute or
operate as a waiver of any such right. No waiver of any provision hereof shall
be effective, unless in writing and signed by or on behalf of the party to be
charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
11. Governing Law. This Agreement shall be governed by, and interpreted
and enforced in accordance with, the Laws of the State of Delaware without
regard to principles of choice of law or conflict of laws.
12. Jurisdiction. Each of the parties hereto hereby irrevocably consents
and submits to the jurisdiction of the Supreme Court of the State of New York
and the United States District Court for the Southern District of New York in
connection with any Proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby, waives any objection to venue in the
County of New York, State of New York or such District, and agrees that
service of any summons, complaint, Notice or other process relating to such
proceeding may be effected in the manner provided by clause (a)(ii) of
Section 8.
13. Remedies. In the event of any actual or prospective breach or
default by any party hereto, the other party shall be entitled to equitable
relief, including remedies in the nature of rescission, injunction and specific
performance. All remedies hereunder are cumulative and not exclusive, and
nothing herein shall be deemed to prohibit or limit any party from pursuing any
other remedy or relief available at law or in equity for such actual or
prospective breach or default, including the recovery of damages.
14. Severability. The provisions hereof are severable and in the event
that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid
and enforceable.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and which together shall constitute one
and the same agreement.
16. Further Assurances. Each party hereto shall promptly execute,
deliver, file or record such agreements, instruments, certificates and other
documents and perform such other and further acts as any other party hereto may
reasonably request or as may otherwise be necessary or proper to consummate and
perfect the transactions contemplated hereby.
17. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement is not intended, and shall not be deemed, to create
or confer any right or interest for the benefit of any Person not a
party hereto.
18. Assignment. This Agreement, and each right, interest and obligation
hereunder, may not be assigned by any party hereto without the prior written
consent of the other parties hereto, and any purported assignment without such
consent shall be void and without effect.
19. Titles and Captions. The titles and captions of the Sections of this
Agreement are for convenience of reference only and do not in any way define or
interpret the intent of the parties or modify or otherwise affect any of the
provisions hereof.
20. Grammatical Conventions. Whenever the context so requires, each
pronoun or verb used herein shall be construed in the singular or the plural
sense and each capitalized term defined herein and each pronoun used herein
shall be construed in the masculine, feminine or neuter sense.
21. References. The terms "herein," "hereto," "hereof," "hereby," and
"hereunder," and other terms of similar import, refer to this Agreement as a
whole, and not to any Section or other part hereof.
22. No Presumptions. Each party hereto acknowledges that it has
participated, with the advice of counsel, in the preparation of this Agreement.
No party hereto is entitled to any presumption with respect to the
interpretation of any provision hereof or the resolution of any alleged
ambiguity herein based on any claim that any other party hereto drafted or
controlled the drafting of this Agreement.
23. Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes any
prior agreement, commitment or arrangement relating thereto.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the day and year first above written.
JAKKS PACIFIC, INC.
By:s/Jack Friedman
Name: Jack Friedman
Title: Chairman (Chief Executive Officer)
PRINCIPAL STOCKHOLDERS
s/Norman Melnick s/Libby Melnick
Norman Melnick Libby Melnick
s/David Melnick s/Dana Melnick
David Melnick Dana Melnick, for herself and as
trustee or custodian for the benefit
of others
s/Richard S. Kalin
Richard S. Kalin
s/Noelle Makenzie Kalin
Noelle Makenzie Kalin, for herself
and as trustee or custodian for the
benefit of others
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