Voting and Other Actions. (a) Each of the Shareholders hereby agrees that at each meeting of the shareholders of the Company at which directors are to be elected after the Closing (as defined in the Purchase Agreement) and in connection with any action by written consent such Shareholder will vote (or execute such written consent with respect to, as the case may be) all shares of the capital stock of the Company which are voting shares, and any other voting securities of the Company, over which such Shareholder has voting control or which are owned by such Shareholder, beneficially or of record, or will cause such shares or securities to be voted (or such consent to be executed), and will take all other necessary or desirable actions within such Shareholder's control in his or her capacity as a shareholder, director, member of a board committee or officer of the Company, including acting by written consent to the extent permitted under applicable law, so that: (i) during the term of this Agreement the Board of Directors of the Company (the "BOARD") will include, and until (but not necessarily after) the Payment Satisfaction Date (hereinafter defined) will exclusively include, (A) three persons nominated by Jimirro (including their successors, the "JIMIRRO DIRECTORS"), (B) so long as the Purchasers and their transferees who are or become parties to and bound by this Agreement continue to beneficially own in the aggregate not less than 281,690 shares of Common Stock including as beneficially owned by them all shares of Common Stock into which their Series B Preferred could be converted (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Common Stock occurring after the date of this Agreement), three persons nominated by the holders of a majority of the shares of Common Stock beneficially owned from time to time by the Purchasers (including their successors, the "SERIES B DIRECTORS"), and (C) one person nominated jointly by a majority of the Jimirro Directors and a majority of the Series B Directors (the "INDEPENDENT DIRECTOR"); provided, however, that the Independent Director will be nominated solely by a majority of the Series B Directors from and after the Payment Satisfaction Date (hereinafter defined); provided, further, that as a condition precedent to the effectiveness of each Jimirro Director's election or appointment to the Board, each Jimirro Director must execute and deliver to the Company, an agreement to resign from the Board effective immediately upon (but only upon) the termination of this Agreement, subject to the satisfaction of such Jimirro Director's fiduciary duties as a director of the Company, in the form attached hereto as Exhibit A; (ii) until the Payment Satisfaction Date (hereinafter defined) any committees of the Board will be created only upon the approval of a majority of the Series B Directors and a majority of the Jimirro Directors, and in each case will consist of (A) an equal number of Series B Directors and Jimirro Directors and, to the extent permitted, (B) the Independent Director; (iii) any vacancy created by the death, resignation or removal of any of the Jimirro Directors, the Series B Directors or the Independent Director will be filled by a person nominated to fill such vacancy by the person or group of persons entitled, under clause (i) above, to nominate the director who died, resigned or was removed; (iv) none of the Jimirro Directors or the Series B Directors will be removed (with or without cause) from the Board unless the Board has received a prior written request for such removal from the person or group of persons entitled to nominate the director to fill the vacancy that would be created by such removal; (v) Jimirro will be elected as Chairman of the Board, President and Chief Executive Officer of the Company during his employment with the Company, and will remain as Chairman of the Board after termination of such employment for so long as he beneficially owns at least 100,000 shares of Common Stock (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Company's Common Stock occurring after the date of this Agreement); (vi) Laikin will be elected to the office of Chief Operating Officer of the Company for so long as Jimirro is the President and Chief Executive Officer, or until such earlier time as the Directors may elect; (vii) unless approved in writing by the holders of a majority of the outstanding shares of Series B Preferred, so long as any shares of Series B Preferred Stock remain outstanding no action (including, without limitation, amending the Articles of Incorporation or the Bylaws of the Company) will be taken to amend, alter or repeal any rights, preferences or privileges of, or any restrictions provided for the benefit of, the Series B Preferred, to adversely affect the rights of the holders of the Series B Preferred or the Series B Directors, or to authorize, create or issue (by reclassification or otherwise) any shares of any class or series of stock having preferences senior to the Series B Preferred Stock; and (viii) unless approved in writing by Jimirro, until the Payment Satisfaction Date (hereinafter defined) no action will be taken to amend, alter or repeal the Articles of Incorporation or the Bylaws of the Company. (b) Each of the Shareholders hereby agrees that such Shareholder will not, and will not permit its affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) or associates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) to, (x) elect to cumulate votes pursuant to Section 708(b) of the California Corporations Code, or (y) prior to the Payment Satisfaction Date (hereinafter defined) nominate for election as a director any person in addition to those nominated or to be nominated in accordance with Section 1(a)(i) of this Agreement, or (z) directly or indirectly cause, request, solicit or encourage any other shareholder of the Company to do any of the acts described in subdivisions (x) or (y) of this Section 1(b). In the event that any shareholder of the Company who is not a party to this Agreement nominates for election as a director a person other than those nominated or to be nominated in accord ance with Section 1(a)(i) of this Agreement, and in the further event that the shareholders of the Company shall be entitled to cumulate their votes in the election of directors in question, then each of the Shareholders hereby agrees that in any election of directors held or to be held until the termination of this Agreement for which such other person is so nominated such Shareholder shall vote such Shareholder's shares as follows: (A) for each person nominated to be a Jimirro or a Series B Director each Shareholder shall cast the number of votes with respect to its shares (whether on a cumulated basis or not, depending on whether an election has been made to cumulate votes pursuant to Section 708(b) of the California Corporations Code) which is equal to 14.3 percent of the total number of votes in respect of which such Shareholder is entitled to vote in respect of its shares, rounded up to the next whole number of votes; and (B) for the person nominated to be the Independent Director each Shareholder shal l vote the remainder of such Shareholder's votes in respect of its shares (whether on a cumulated basis or not). (c) Each of the Shareholders hereby agrees to take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company to cause the Company to reincorporate in the State of Delaware as soon as commercially practicable after the Closing (as defined in the Purchase Agreement). In connection with such reincorporation, each Shareholder agrees that such Shareholder will (x) take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company (1) to cause the Company's (or its successor entity's, as the case may be) corporate documents (including, without limitation, its charter and bylaws) to be substantially in the form of the Company's current corporate documents, subject only to such differences as are required by Delaware law, and (2) to cause the Company, as soon as it may do so u nder applicable law and in accordance with the existing factual circumstances, to issue the Section 2115 Certificate (hereinafter defined), and (y), if necessary, enter into a new voting agreement having terms substantively identical to this Agreement regarding the capital stock of any successor entity to the Company resulting from such reincorporation. Each of the Shareholders hereby agrees that as soon as commercially practicable following such reincorporation, such Shareholder will designate an address of record outside the State of California for purposes of the records of the Company or any successor entity to the Company and will maintain such address of record until the termination of this Agreement pursuant to Section 2 below. (d) Jimirro and Laikin agree that until the Payment Satisfaction Date (hereinafter defined), in the event either Jimirro or Laikin (if he is a Series B Director) is unable under applicable law to participate, or otherwise elects not to participate, in a vote or decision of the Board on account of his personal interest in the matter being voted on or decided, then neither of such persons shall participate as a Director in such vote or decision of the Board. (e) For purposes of this Agreement, the "PAYMENT SATISFACTION DATE" is the date following the termination of Jimirro's employment with the Company as of which the following condition (whichever is applicable) has been satisfied: (i) if Jimirro's employment with the Company has been terminated by the Company for "Cause" pursuant to Section 4(e) of the Employment Agreement between Jimirro and the Company dated May 17, 2002 (the "NEW AGREEMENT") or by Jimirro otherwise than for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon full payment of all compensation (excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx Xxreement; or (ii) if Jimirro's employment with the Company has been terminated by reason of Jimirro's death or disability, by the Company for "Convenience" pursuant to Section 4(f) of the New Agreement, or by Jimirro for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon the later of (A) full payment to Jimirro of all compensation (including payments under the Severance Note (as defined in the New Agreement) but excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx Xxreement, and (B) thirteen (13) months after the payment to Jimirro of the "Cash Severance Payment" pursuant to, and as defined in, Section 5(d)(i) of the New Agreement. (f) Each of the Shareholders hereby represents and warrants for the benefit of each of the other Shareholders that it beneficially owns as of the date of this Agreement the number of shares of Common Stock set forth opposite such Shareholder's name in Exhibit B to this Agreement. (g) For purposes of this Agreement, the term "beneficially", when it modifies "own" or a derivative of "own", shall have the meaning ascribed to it in the rules and regulations promulgated under Section 13(d) of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Samples: Voting Agreement (Holzer Ronald H)
Voting and Other Actions. (a) Each of the Shareholders hereby agrees that at each meeting of the shareholders of the Company at which directors are to be elected after the Closing (as defined in the Purchase Agreement) and in connection with any action by written consent such Shareholder will vote (or execute such written consent with respect to, as the case may be) all shares of the capital stock of the Company which are voting shares, and any other voting securities of the Company, over which such Shareholder has voting control or which are owned by such Shareholder, beneficially or of record, or will cause such shares or securities to be voted (or such consent to be executed), and will take all other necessary or desirable actions within such Shareholder's control in his or her capacity as a shareholder, director, member of a board committee or officer of the Company, including acting by written consent to the extent permitted under applicable law, so that:
(i) during the term of this Agreement the Board of Directors of the Company (the "BOARD") will include, and until (but not necessarily after) the Payment Satisfaction Date (hereinafter defined) will exclusively include, (A) three persons nominated by Jimirro (including their successors, the "JIMIRRO DIRECTORS"), (B) so long as the Purchasers and their transferees who are or become parties to and bound by this Agreement continue to beneficially own in the aggregate not less than 281,690 shares of Common Stock including as beneficially owned by them all shares of Common Stock into which their Series B Preferred could be converted (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Common Stock occurring after the date of this Agreement), three persons nominated by the holders of a majority of the shares of Common Stock beneficially owned from time to time by the Purchasers (including their successors, the "SERIES B DIRECTORS"), and (C) one person nominated jointly by a majority of the Jimirro Directors and a majority of the Series B Directors (the "INDEPENDENT DIRECTOR"); provided, however, that the Independent Director will be nominated solely by a majority of the Series B Directors from and after the Payment Satisfaction Date (hereinafter defined); provided, further, that as a condition precedent to the effectiveness of each Jimirro Director's election or appointment to the Board, each Jimirro Director must execute and deliver to the Company, an agreement to resign from the Board effective immediately upon (but only upon) the termination of this Agreement, subject to the satisfaction of such Jimirro Director's fiduciary duties as a director of the Company, in the form attached hereto as Exhibit A;
(ii) until the Payment Satisfaction Date (hereinafter defined) any committees of the Board will be created only upon the approval of a majority of the Series B Directors and a majority of the Jimirro Directors, and in each case will consist of (A) an equal number of Series B Directors and Jimirro Directors and, to the extent permitted, (B) the Independent Director;
(iii) any vacancy created by the death, resignation or removal of any of the Jimirro Directors, the Series B Directors or the Independent Director will be filled by a person nominated to fill such vacancy by the person or group of persons entitled, under clause (i) above, to nominate the director who died, resigned or was removed;
(iv) none of the Jimirro Directors or the Series B Directors will be removed (with or without cause) from the Board unless the Board has received a prior written request for such removal from the person or group of persons entitled to nominate the director to fill the vacancy that would be created by such removal;
(v) Jimirro will be elected as Chairman of the Board, President and Chief Executive Officer of the Company during his employment with the Company, and will remain as Chairman of the Board after termination of such employment for so long as he beneficially owns at least 100,000 shares of Common Stock (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Company's Common Stock occurring after the date of this Agreement);
(vi) Laikin will be elected to the office of Chief Operating Officer of the Company for so long as Jimirro is the President and Chief Executive Officer, or until such earlier time as the Directors may elect;
(vii) unless approved in writing by the holders of a majority of the outstanding shares of Series B Preferred, so long as any shares of Series B Preferred Stock remain outstanding no action (including, without limitation, amending the Articles of Incorporation or the Bylaws of the Company) will be taken to amend, alter or repeal any rights, preferences or privileges of, or any restrictions provided for the benefit of, the Series B Preferred, to adversely affect the rights of the holders of the Series B Preferred or the Series B Directors, or to authorize, create or issue (by reclassification or otherwise) any shares of any class or series of stock having preferences senior to the Series B Preferred Stock; and
(viii) unless approved in writing by Jimirro, until the Payment Satisfaction Date (hereinafter defined) no action will be taken to amend, alter or repeal the Articles of Incorporation or the Bylaws of the Company.
(b) Each of the Shareholders hereby agrees that such Shareholder will not, and will not permit its affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) or associates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) to, (x) elect to cumulate votes pursuant to Section 708(b) of the California Corporations Code, or (y) prior to the Payment Satisfaction Date (hereinafter defined) nominate for election as a director any person in addition to those nominated or to be nominated in accordance with Section 1(a)(i) of this Agreement, or (z) directly or indirectly cause, request, solicit or encourage any other shareholder of the Company to do any of the acts described in subdivisions (x) or (y) of this Section 1(b). In the event that any shareholder of the Company who is not a party to this Agreement nominates for election as a director a person other than those nominated or to be nominated in accord ance accordance with Section 1(a)(i) of this Agreement, and in the further event that the shareholders of the Company shall be entitled to cumulate their votes in the election of directors in question, then each of the Shareholders hereby agrees that in any election of directors held or to be held until the termination of this Agreement for which such other person is so nominated such Shareholder shall vote such Shareholder's shares as follows:
(A) for each person nominated to be a Jimirro or a Series B Director each Shareholder shall cast the number of votes with respect to its shares (whether on a cumulated basis or not, depending on whether an election has been made to cumulate votes pursuant to Section 708(b) of the California Corporations Code) which is equal to 14.3 percent of the total number of votes in respect of which such Shareholder is entitled to vote in respect of its shares, rounded up to the next whole number of votes; and (B) for the person nominated to be the Independent Director each Shareholder shal l shall vote the remainder of such Shareholder's votes in respect of its shares (whether on a cumulated basis or not).
(c) Each of the Shareholders hereby agrees to take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company to cause the Company to reincorporate in the State of Delaware as soon as commercially practicable after the Closing (as defined in the Purchase Agreement). In connection with such reincorporation, each Shareholder agrees that such Shareholder will (x) take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company (1) to cause the Company's (or its successor entity's, as the case may be) corporate documents (including, without limitation, its charter and bylaws) to be substantially in the form of the Company's current corporate documents, subject only to such differences as are required by Delaware law, and (2) to cause the Company, as soon as it may do so u nder under applicable law and in accordance with the existing factual circumstances, to issue the Section 2115 Certificate (hereinafter defined), and (y), if necessary, enter into a new voting agreement having terms substantively identical to this Agreement regarding the capital stock of any successor entity to the Company resulting from such reincorporation. Each of the Shareholders hereby agrees that as soon as commercially practicable following such reincorporation, such Shareholder will designate an address of record outside the State of California for purposes of the records of the Company or any successor entity to the Company and will maintain such address of record until the termination of this Agreement pursuant to Section 2 below.
(d) Jimirro and Laikin agree that until the Payment Satisfaction Date (hereinafter defined), in the event either Jimirro or Laikin (if he is a Series B Director) is unable under applicable law to participate, or otherwise elects not to participate, in a vote or decision of the Board on account of his personal interest in the matter being voted on or decided, then neither of such persons shall participate as a Director in such vote or decision of the Board.
(e) For purposes of this Agreement, the "PAYMENT SATISFACTION DATE" is the date following the termination of Jimirro's employment with the Company as of which the following condition (whichever is applicable) has been satisfied:
(i) if Jimirro's employment with the Company has been terminated by the Company for "Cause" pursuant to Section 4(e) of the Employment Agreement between Jimirro and the Company dated May 17, 2002 (the "NEW AGREEMENT") or by Jimirro otherwise than for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon full payment of all compensation (excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx txx Xxx XxreementXxxeement; or
(ii) if Jimirro's employment with the Company has been terminated by reason of Jimirro's death or disability, by the Company for "Convenience" pursuant to Section 4(f) of the New Agreement, or by Jimirro for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon the later of (A) full payment to Jimirro of all compensation (including payments under the Severance Note (as defined in the New Agreement) but excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx txx Xxx Xxreement, and (B) thirteen (13) months after the payment to Jimirro of the "Cash Severance Payment" pursuant to, and as defined in, Section 5(d)(i) of the New Agreement.
(f) Each of the Shareholders hereby represents and warrants for the benefit of each of the other Shareholders that it beneficially owns as of the date of this Agreement the number of shares of Common Stock set forth opposite such Shareholder's name in Exhibit B to this Agreement.
(g) For purposes of this Agreement, the term "beneficially", when it modifies "own" or a derivative of "own", shall have the meaning ascribed to it in the rules and regulations promulgated under Section 13(d) of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Samples: Voting Agreement (Holzer Ronald H)
Voting and Other Actions. (a) Each of the Shareholders hereby agrees that at each meeting of the shareholders of the Company at which directors are to be elected after the Closing (as defined in the Purchase Agreement) and in connection with any action by written consent such Shareholder will vote (or execute such written consent with respect to, as the case may be) all shares of the capital stock of the Company which are voting shares, and any other voting securities of the Company, over which such Shareholder has voting control or which are owned by such Shareholder, beneficially or of record, or will cause such shares or securities to be voted (or such consent to be executed), and will take all other necessary or desirable actions within such Shareholder's control in his or her capacity as a shareholder, director, member of a board committee or officer of the Company, including acting by written consent to the extent permitted under applicable law, so that:
(i) during the term of this Agreement the Board of Directors of the Company (the "BOARD") will include, and until (but not necessarily after) the Payment Satisfaction Date (hereinafter defined) will exclusively include, (A) three persons nominated by Jimirro (including their successors, the "JIMIRRO DIRECTORS"), (B) so long as the Purchasers and their transferees who are or become parties to and bound by this Agreement continue to beneficially own in the aggregate not less than 281,690 shares of Common Stock including as beneficially owned by them all shares of Common Stock into which their Series B Preferred could be converted (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Common Stock occurring after the date of this Agreement), three persons nominated by the holders of a majority of the shares of Common Stock beneficially owned from time to time by the Purchasers (including their successors, the "SERIES B DIRECTORS"), and (C) one person nominated jointly by a majority of the Jimirro Directors and a majority of the Series B Directors (the "INDEPENDENT DIRECTOR"); provided, however, that the Independent Director will be nominated solely by a majority of the Series B Directors from and after the Payment Satisfaction Date (hereinafter defined); provided, further, that as a condition precedent to the effectiveness of each Jimirro Director's election or appointment to the Board, each Jimirro Director must execute and deliver to the Company, an agreement to resign from the Board effective immediately upon (but only upon) the termination of this Agreement, subject to the satisfaction of such Jimirro Director's fiduciary duties as a director of the Company, in the form attached hereto as Exhibit A;
(ii) until the Payment Satisfaction Date (hereinafter defined) any committees of the Board will be created only upon the approval of a majority of the Series B Directors and a majority of the Jimirro Directors, and in each case will consist of (A) an equal number of Series B Directors and Jimirro Directors and, to the extent permitted, (B) the Independent Director;
(iii) any vacancy created by the death, resignation or removal of any of the Jimirro Directors, the Series B Directors or the Independent Director will be filled by a person nominated to fill such vacancy by the person or group of persons entitled, under clause (i) above, to nominate the director who died, resigned or was removed;
(iv) none of the Jimirro Directors or the Series B Directors will be removed (with or without cause) from the Board unless the Board has received a prior written request for such removal from the person or group of persons entitled to nominate the director to fill the vacancy that would be created by such removal;
(v) Jimirro will be elected as Chairman of the Board, President and Chief Executive Officer of the Company during his employment with the Company, and will remain as Chairman of the Board after termination of such employment for so long as he beneficially owns at least 100,000 shares of Common Stock (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Company's Common Stock occurring after the date of this Agreement);
(vi) Laikin will be elected to the office of Chief Operating Officer of the Company for so long as Jimirro is the President and Chief Executive Officer, or until such earlier time as the Directors may elect;
(vii) unless approved in writing by the holders of a majority of the outstanding shares of Series B Preferred, so long as any shares of Series B Preferred Stock remain outstanding no action (including, without limitation, amending the Articles of Incorporation or the Bylaws of the Company) will be taken to amend, alter or repeal any rights, preferences or privileges of, or any restrictions provided for the benefit of, the Series B Preferred, to adversely affect the rights of the holders of the Series B Preferred or the Series B Directors, or to authorize, create or issue (by reclassification or otherwise) any shares of any class or series of stock having preferences senior to the Series B Preferred Stock; and
(viii) unless approved in writing by Jimirro, until the Payment Satisfaction Date (hereinafter defined) no action will be taken to amend, alter or repeal the Articles of Incorporation or the Bylaws of the Company.
(b) Each of the Shareholders hereby agrees that such Shareholder will not, and will not permit its affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) or associates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) to, (x) elect to cumulate votes pursuant to Section 708(b) of the California Corporations Code, or (y) prior to the Payment Satisfaction Date (hereinafter defined) nominate for election as a director any person in addition to those nominated or to be nominated in accordance with Section 1(a)(i) of this Agreement, or (z) directly or indirectly cause, request, solicit or encourage any other shareholder of the Company to do any of the acts described in subdivisions (x) or (y) of this Section 1(b). In the event that any shareholder of the Company who is not a party to this Agreement nominates for election as a director a person other than those nominated or to be nominated in accord ance accordance with Section 1(a)(i) of this Agreement, and in the further event that the shareholders of the Company shall be entitled to cumulate their votes in the election of directors in question, then each of the Shareholders hereby agrees that in any election of directors held or to be held until the termination of this Agreement for which such other person is so nominated such Shareholder shall vote such Shareholder's shares as follows:
(A) for each person nominated to be a Jimirro or a Series B Director each Shareholder shall cast the number of votes with respect to its shares (whether on a cumulated basis or not, depending on whether an election has been made to cumulate votes pursuant to Section 708(b) of the California Corporations Code) which is equal to 14.3 percent of the total number of votes in respect of which such Shareholder is entitled to vote in respect of its shares, rounded up to the next whole number of votes; and (B) for the person nominated to be the Independent Director each Shareholder shal l shall vote the remainder of such Shareholder's votes in respect of its shares (whether on a cumulated basis or not).
(c) Each of the Shareholders hereby agrees to take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company to cause the Company to reincorporate in the State of Delaware as soon as commercially practicable after the Closing (as defined in the Purchase Agreement). In connection with such reincorporation, each Shareholder agrees that such Shareholder will (x) take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company (1) to cause the Company's (or its successor entity's, as the case may be) corporate documents (including, without limitation, its charter and bylaws) to be substantially in the form of the Company's current corporate documents, subject only to such differences as are required by Delaware law, and (2) to cause the Company, as soon as it may do so u nder under applicable law and in accordance with the existing factual circumstances, to issue the Section 2115 Certificate (hereinafter defined), and (y), if necessary, enter into a new voting agreement having terms substantively identical to this Agreement regarding the capital stock of any successor entity to the Company resulting from such reincorporation. Each of the Shareholders hereby agrees that as soon as commercially practicable following such reincorporation, such Shareholder will designate an address of record outside the State of California for purposes of the records of the Company or any successor entity to the Company and will maintain such address of record until the termination of this Agreement pursuant to Section 2 below.
(d) Jimirro and Laikin agree that until the Payment Satisfaction Date (hereinafter defined), in the event either Jimirro or Laikin (if he is a Series B Director) is unable under applicable law to participate, or otherwise elects not to participate, in a vote or decision of the Board on account of his personal interest in the matter being voted on or decided, then neither of such persons shall participate as a Director in such vote or decision of the Board.
(e) For purposes of this Agreement, the "PAYMENT SATISFACTION DATE" is the date following the termination of Jimirro's employment with the Company as of which the following condition (whichever is applicable) has been satisfied:
(i) if Jimirro's employment with the Company has been terminated by the Company for "Cause" pursuant to Section 4(e) of the Employment Agreement between Jimirro and the Company dated May 17, 2002 (the "NEW AGREEMENT") or by Jimirro otherwise than for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon full payment of all compensation (excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx XxreementXgreement; or
(ii) if Jimirro's employment with the Company has been terminated by reason of Jimirro's death or disability, by the Company for "Convenience" pursuant to Section 4(f) of the New Agreement, or by Jimirro for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon the later of (A) full payment to Jimirro of all compensation (including payments under the Severance Note (as defined in the New Agreement) but excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx XxreementXgreement, and (B) thirteen (13) months after the payment to Jimirro of the "Cash Severance Payment" pursuant to, and as defined in, Section 5(d)(i) of the New Agreement.
(f) Each of the Shareholders hereby represents and warrants for the benefit of each of the other Shareholders that it beneficially owns as of the date of this Agreement the number of shares of Common Stock set forth opposite such Shareholder's name in Exhibit B to this Agreement.
(g) For purposes of this Agreement, the term "beneficially", when it modifies "own" or a derivative of "own", shall have the meaning ascribed to it in the rules and regulations promulgated under Section 13(d) of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Voting and Other Actions. (a) Each of Xxxxxx hereby agrees to act as Trustee for the IVI Shareholders and hereby agrees that at each meeting of the shareholders of the Company at which directors are to be elected or other action by shareholders taken after the Closing (as defined in the Purchase Exchange Agreement) and in connection with any action by written consent such Shareholder Xxxxxx will vote (or execute such written consent with respect to, as the case may be) all shares of the Common Stock which are all shares of the capital stock of the Company Turer Corp. which are voting shares, and any other voting securities of the Company, over which such Shareholder has IVI Shareholders would have voting control or which are owned by such Shareholder, beneficially or of record, or will cause such shares or securities to be voted (or such consent to be executed), and will take all other necessary or desirable actions within such Shareholder's Xxxxxx'x control in his or her capacity as a shareholder, director, member of a board committee or officer of Trustee for the CompanyIVI Shareholder, including acting by written consent to the extent permitted under applicable law, so that:
(i) during the term of this Agreement included on the Board of Directors of the Company (the "BOARDBoard") will include, and until (but not necessarily after) be during the Payment Satisfaction Date (hereinafter defined) will exclusively include, (A) three persons term of this Agreement one person nominated by Jimirro Xxxxxx and Xxxxxx (including their successors, the "JIMIRRO DIRECTORS"), (B) so long as the Purchasers and their transferees who are or become parties to and bound by this Agreement continue to beneficially own in the aggregate not less than 281,690 shares of Common Stock including as beneficially owned by them all shares of Common Stock into which their Series B Preferred could be converted (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Common Stock occurring after the date of this Agreement), three persons nominated by the holders of a majority of the shares of Common Stock beneficially owned from time to time by the Purchasers (including their successors, the "SERIES B DIRECTORSXxxxxx Directors"), and (C) one person nominated jointly by a majority of the Jimirro Directors and a majority of the Series B Directors (the "INDEPENDENT DIRECTOR"); provided, however, that the Independent Director will be nominated solely by a majority of the Series B Directors from and after the Payment Satisfaction Date (hereinafter defined); provided, further, that as a condition precedent to the effectiveness of each Jimirro Director's election or appointment to the Board, each Jimirro Director must execute and deliver to the Company, an agreement to resign from the Board effective immediately upon (but only upon) the termination of this Agreement, subject to the satisfaction of such Jimirro Xxxxxx Director's fiduciary duties as a director of the Company, in the form attached hereto as Exhibit A;
(ii) until the Payment Satisfaction Date (hereinafter defined) any committees of the Board will be created only upon the approval of a majority of the Series B Directors and a majority of the Jimirro Xxxxxx Directors, and in each case will consist of (A) an equal number of Series B Directors and Jimirro Directors and, to the extent permitted, (B) the Independent Director;
(iii) any vacancy created by the death, resignation or removal of any of the Jimirro Directors, the Series B Xxxxxx Directors or the Independent Director will be filled by a person nominated to fill such vacancy by the person or group of persons entitled, under clause (i) above, to nominate the director who died, resigned or was removed;
(iv) none of the Jimirro Directors or the Series B Xxxxxx Directors will be removed (with or without cause) from the Board unless the Board has received a prior written request for such removal from the person or group of persons entitled to nominate the director to fill the vacancy that would be created by such removal;
(v) Jimirro Xxxxxx will be elected as Chairman of the Board, Board and President and Chief Executive Officer of the Company during his employment with the Company, and will remain as Chairman of the Board after termination of such employment for so long as he beneficially owns at least 100,000 1,000,000 shares of Common Stock (the foregoing required number of shares shall automatically be increased proportionately on account of any subdivision, share dividend, stock split or similar transaction and decreased proportionately on account of any reverse stock split, combination or similar transaction affecting the Company's Common Stock occurring after the date of this Agreement);; and
(vi) Laikin will be elected to the office of Chief Operating Officer of the Company for so long as Jimirro is the President and Chief Executive Officer, or until such earlier time as the Directors may elect;
(vii) unless approved in writing by the holders of a majority of the outstanding shares of Series B Preferredshares, so long as any shares of Series B Preferred Stock remain outstanding no action (including, without limitation, amending the Articles of Incorporation or the Bylaws of the Company) will be taken to amend, alter or repeal any rights, preferences or privileges of, or any restrictions provided for the benefit of, the Series B Preferred, to adversely affect the rights of the holders of the Series B Preferred or the Series B Directors, or to authorize, create or issue (by reclassification or otherwise) any shares of any class or series of stock having preferences senior to the Series B Preferred Turer Common Stock; and
(viii) unless approved in writing by Jimirro, until the Payment Satisfaction Date (hereinafter defined) no action will be taken to amend, alter or repeal the Articles of Incorporation or the Bylaws of the Company.
(b) Each of the Shareholders Xxxxxx hereby agrees that such Shareholder will not, and will not permit its affiliates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) or associates (as such term is defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) to, (x) elect to cumulate votes pursuant to Section 708(b) of the California Corporations Code, or (y) prior to the Payment Satisfaction Date (hereinafter defined) nominate for election as a director any person in addition to those nominated or to be nominated in accordance with Section 1(a)(i) governed by the rules, regulations and laws governing the fiduciary duties of this Agreementa Trustee acting for the benefit of others; i.e., or (z) directly or indirectly cause, request, solicit or encourage any other shareholder of the Company to do any of the acts described in subdivisions (x) or (y) of this Section 1(b). In the event that any shareholder of the Company who is not a party to this Agreement nominates for election as a director a person other than those nominated or to be nominated in accord ance with Section 1(a)(i) of this Agreement, and in the further event that the shareholders of the Company shall be entitled to cumulate their votes in the election of directors in question, then each of the Shareholders hereby agrees that in any election of directors held or to be held until the termination of this Agreement for which such other person is so nominated such Shareholder shall vote such Shareholder's shares as follows:
(A) for each person nominated to be a Jimirro or a Series B Director each Shareholder shall cast the number of votes with respect to its shares (whether on a cumulated basis or not, depending on whether an election has been made to cumulate votes pursuant to Section 708(b) of the California Corporations Code) which is equal to 14.3 percent of the total number of votes in respect of which such Shareholder is entitled to vote in respect of its shares, rounded up to the next whole number of votes; and (B) for the person nominated to be the Independent Director each Shareholder shal l vote the remainder of such Shareholder's votes in respect of its shares (whether on a cumulated basis or not)IVI.
(c) Each of the Shareholders Xxxxxx hereby agrees to take all necessary or desirable actions within his control in his capacity as Trustee for IVI Shareholders to cause the Company to change the name of the Company to "IVI International, Inc." as soon as commercially practicable after the Closing (as defined in the Exchange Agreement), and in any event no later than the next annual or special meeting of the Company's shareholders. In connection with such Shareholder's name change, Xxxxxx agrees that he will (x) take all necessary or desirable actions within his control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company to cause the Company to reincorporate in the State of Delaware as soon as commercially practicable after the Closing (as defined in the Purchase Agreement). In connection with such reincorporation, each Shareholder agrees that such Shareholder will (x) take all necessary or desirable actions within such Shareholder's control in such Shareholder's capacity as a shareholder, director, member of a board committee or officer of the Company (1) to cause the Company's (or its successor entity's, as the case may be) corporate documents (including, without limitation, its charter and bylaws) to be substantially in the form of the Company's current corporate documents, subject only to such differences as are required by Delaware Nevada law, and (2) to cause the Company, as soon as it may do so u nder applicable law and in accordance with the existing factual circumstances, to issue the Section 2115 Certificate (hereinafter defined), and (y), if necessary, enter into a new voting agreement Voting Trust Agreement having terms substantively identical to this Agreement regarding the capital stock of any successor entity to the Company resulting from such reincorporationname change. Each of the Shareholders Xxxxxx hereby agrees that as soon as commercially practicable following such reincorporationname change, such Shareholder he will designate an address of record outside the State of California for purposes of the records of the Company or any successor entity to the Company and will maintain such address of record until the termination of this Agreement pursuant to Section 2 below.
(d) Jimirro and Laikin agree that until the Payment Satisfaction Date (hereinafter defined), in the event either Jimirro or Laikin (if he is a Series B Director) is unable under applicable law to participate, or otherwise elects not to participate, in a vote or decision of the Board on account of his personal interest in the matter being voted on or decided, then neither of such persons shall participate as a Director in such vote or decision of the Board.
(e) For purposes of this Agreement, the "PAYMENT SATISFACTION DATETurer Common Stock Delivery Date" is the date following the termination day of Jimirro's employment with mailing stock certificates representing the Company as of which the following condition (whichever is applicable) has been satisfied:
(i) if Jimirro's employment with the Company has been terminated by the Company for "Cause" pursuant to Section 4(e) Turer Common Stock upon effectiveness of the Employment Agreement between Jimirro and the Company dated May 17, 2002 (the "NEW AGREEMENT") or by Jimirro otherwise than for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon full payment of all compensation (excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx Xxreement; or
(ii) if Jimirro's employment with the Company has been terminated by reason of Jimirro's death or disability, by the Company for "Convenience" pursuant to Section 4(f) of the New Agreement, or by Jimirro for an Executive Good Reason Termination Event pursuant to Section 4(g) of the New Agreement, then upon the later of (A) full payment to Jimirro of all compensation (including payments under the Severance Note (as defined in the New Agreement) but excluding payments with respect to the movie "National Lampoon's Van Wilder") owed to Jimirro under xxx Xxx Xxreement, and (B) thirteen (13) months after the payment to Jimirro of the "Cash Severance Payment" pursuant to, and as defined in, Section 5(d)(i) of the New AgreementS-4 Registration Statement.
(fe) Each Pursuant to the Exchange Agreement, the IVI Shareholders are the beneficial owners of the Shareholders hereby represents and warrants for the benefit of each of the other Shareholders that it beneficially owns as of the date of this Agreement the number of 12,450,000 shares of Common Stock set forth opposite such Shareholder's name in Exhibit B to this Agreement.
(g) Stock. For purposes of this Agreement, the term "beneficially", when it modifies "own" or a derivative of "own", shall have the meaning ascribed to it in the rules and regulations promulgated under Section 13(d) of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
