Exhibit 10.1
Execution Version
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as
of
March 8, 2007, by and between Catalina Marketing Corporation, a
Delaware
corporation (the "Company"), and the undersigned stockholder
("Stockholder") in
the Company. Certain capitalized terms used in this Agreement are
defined in
Section 6 hereof and certain other capitalized terms used in this
Agreement that
are not defined herein shall have the meaning given to such terms
in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, Stockholder is the holder of record and/or the
"beneficial
owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of
1934, as amended) of Company Common Stock;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company and CMC Holdings LLC, a Delaware limited
liability
company ("Parent"), and Catalina Merger Sub, Inc., a Delaware
corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), are entering into
an Agreement
of Merger (the "Merger Agreement") which provides, upon the terms
and subject to
the conditions set forth therein, for the merger of Merger Sub with
and into the
Company (the "Merger"); and
WHEREAS, as a condition and inducement to the Company's willingness
to
enter into the Merger Agreement, the Stockholders have agreed to
execute and
deliver this Agreement.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement, intending to be
legally
bound, agree as follows:
1.
Agreement to Vote Subject Securities. Prior to the Termination
Date,
at every meeting of the stockholders of the Company called with
respect to any
of the following, and at every adjournment or postponement thereof,
and on every
action or approval by written consent of the stockholders of the
Company with
respect to any of the following, the Stockholder shall vote or
cause to be voted
the Subject Securities: (a) in favor of approval and adoption of
(i) the Merger
Agreement including, without limitation, the Merger Consideration,
(ii) the
Merger, and (iii) any other matter contemplated under the Merger
Agreement or
that could reasonably be expected to facilitate the Merger that is
put to a vote
of the stockholders of the Company; (b) in the event that the
Company receives a
Superior Offer prior to obtaining the Required Stockholder Vote in
connection
with the Merger Agreement and the Merger, in favor of such Superior
Offer if
recommended to the holders of the Company Common Stock by action of
the Company
Board or a duly constituted committee thereof ("Board Action") and,
as
recommended by Board Action, any other matter with respect to such
Superior
Offer that is put to a vote of the stockholders of the Company; and
(c) other
than in connection with a Superior Offer recommended to the
stockholders of the
Company by Board Action, against any other action or agreement that
would result
in a breach of any covenant, representation or warranty or any
other obligation
or agreement of the Company under the Merger Agreement or which
would result in
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any of the conditions to the consummation of the Merger under the
Merger
Agreement not being fulfilled or which would reasonably be expected
to prevent,
impede, frustrate, interfere with, delay, postpone or adversely
affect the
Merger and the other transactions contemplated by the Merger
Agreement.
2. Agreement to Retain Subject Securities.
(a) Restriction on Transfer. During the period from the date of
this
Agreement through the Termination Date, the Stockholders shall not,
directly or
indirectly, cause or permit any Transfer of any of the Subject
Securities to be
effected.
(b) Restriction on Transfer of Voting Rights. During the period
from
the date of this Agreement through the Termination Date, the
Stockholders shall
ensure that, without the Company's prior written consent: (a) none
of the
Subject Securities is deposited into a voting trust; and (b) no
proxy (other
than a proxy solicited by the Company Board to vote in accordance
with Section 1
hereof (a "Proxy")) is granted, and no voting agreement or similar
agreement is
entered into, with respect to any of the Subject Securities.
3. Representations, Warranties and Covenants of the Stockholders.
Each
Stockholder, as to itself, hereby represents and warrants to the
Company as
follows:
(a) Due Authorization, Etc. All consents, approvals, authorizations
and
orders necessary for the execution and delivery by Stockholder of
this Agreement
have been obtained, and Stockholder has all legal capacity, full
right, power
and authority to enter into this Agreement, and perform
Stockholder's
obligations hereunder. This Agreement has been duly executed and
delivered by
Stockholder and constitutes a valid and binding agreement of
Stockholder
enforceable in accordance with its terms, except as the same may be
limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or
hereafter in effect relating to creditors' rights generally and
subject to
general principles of equity.
(b) No Conflict. The execution and delivery of this Agreement
by
Stockholder does not, and the performance of and under this
Agreement by
Stockholder will not (i) conflict with or violate any Legal
Requirement
applicable to the Subject Securities held by Stockholder (ii)
result in, give
rise to or constitute a violation or breach of or a default (or any
event which
with notice or lapse of time or both would become a violation,
breach or
default) under any of the terms of any understanding, agreement or
other
instrument or obligation to which Stockholder is a party or by
which Stockholder
or any of the Subject Securities may be bound.
(c) Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or
restrictions)
the number of outstanding shares of Company Common Stock set forth
under the
headings "Shares Held of Record" on the signature page hereof; (b)
Stockholder
Owns the additional securities of the Company set forth under the
heading
"Additional Securities Beneficially Owned" on the signature page
hereof; and (c)
Stockholder and its Affiliates do not directly or indirectly Own
any shares of
capital stock or other securities of the Company, or any option,
warrant or
other right to acquire (by purchase, conversion or otherwise) any
shares of
capital stock or other securities of the Company, other t
