SHAREHOLDERS AGREEMENT
This shareholders agreement (the "Agreement") is made and entered into as
of November 16, 1998, by and among Xxxxxxxxx Digital Inc., a Delaware
corporation ("Xxxxxxxxx"), Pioneer Ventures Associates Limited Partnership, a
Connecticut limited partnership ("Pioneer"), and Xxxx Xxxxx ("Xxxxx") (together,
the "Shareholders").
WHEREAS, the Shareholders deem it in their best interests and in the best
interests of American Interactive Media, Inc., a Delaware corporation (the
"Company") to provide consistent and uniform management of the Company and
desire to enter into this Agreement in order to effectuate that purpose.
NOW THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, the Shareholders, for good and valuable consideration, and
intending to be legally bound, hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, severally and not jointly, represent and warrant each as
to itself as follows:
(a) The Shareholder is authorized to execute and deliver this
Agreement. This Agreement has been duly executed and delivered by the
Shareholder and constitutes the legal, valid and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance with its
terms, except to the extent that such enforcement is limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally or by general principles of
equity.
(b) The execution, delivery and performance by the Shareholder of this
Agreement, and the consum.. mation by the Shareholder of the transactions
contemplated hereby and thereby: (i) do not and will not violate or
conflict with any provision of law or regulation, or any writ, order,
judgment or decree of any court or governmental or regulatory authority
specifically naming the Shareholder; and (ii) do not and will not, with or
without the passage of time or the giving of notice, result in the breach
of, or constitute a default, cause the acceleration of performance, permit
the unilateral modification or termination of, or require any consent
under, or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Shareholder pursuant to, any material
instrument or agreement to which the Shareholder is a party or by which the
Shareholder or any of its respective properties may be bound or affected.
2. COMPOSITION OF THE BOARD
(a) The Board of Directors of the Company shall consist of at least
five directors, of which four directors shall include (i) Xxxx Xxxxx, as
long as he serves as President of the Company or an executive officer of
the Company or any subsidiary, (ii) at least two designees of Xxxxxxxxx, as
long as Xxxxxxxxx owns Shares (as defined herein) or debentures of the
Company convertible into such Shares and (iii) one designee of Pioneer, as
long as Pioneer owns Shares (as defined herein).
(b) Each Shareholder shall appear in person or by proxy at any annual
or special meeting of shareholders (or in lieu of any such meeting, shall
give the Shareholder's written consent with respect to such Shareholder's
Common Stock and all other securities of the Company of any kind or class
having power to vote for the election of directors ("Shares")) for the
purposes of obtaining a quorum and shall vote the Shares owned by such
Shareholder, or over which such Shareholder has voting power, either in
person or by proxy, at any annual or special meeting of shareholders of the
Company called for the purpose of voting on the election or removal of
directors or by consensual action of shareholders with respect to the
election or removal of directors, in favor of the election of the directors
nominated in accordance with Section 2(a) and shall take all other actions
necessary to give effect to the provisions of this Agreement, and to ensure
that the By-laws of the Company do not, at any time hereafter, conflict in
any respect with the provisions of this Agreement.
(c) No Shareholder shall hereafter grant any proxy or enter into or
agree to be bound by any voting trust with respect to its Shares nor shall
any Shareholder enter into any stockholder agreements or arrangements of
any kind with any person with respect to its Shares inconsistent with the
provisions of this Agreement, provided that this provision shall in no way
limit the ability of a Shareholder to sell or dispose of its Shares.
3. TERMINATION
This Agreement shall, unless otherwise agreed to by each of the
Shareholders, terminate on the date which is five years from the date hereof,
whereupon the foregoing provisions of this Agreement shall cease to have any
force or effect.
4. FURTHER ASSURANCES
At any time or from time to time after the execution of this Agreement,
each party hereto agrees to take such actions and to execute and deliver such
documents as shall be reasonably necessary to effectuate the purposes of this
Agreement.
5. WAIVER AND AMENDMENT
No amendment or modification of any provision of this Agreement shall be
effective unless contained in a written agreement signed by each of the parties
hereto. No waiver of any provision of this Agreement shall be effective unless
it is set forth in a written instrument signed by the party waiving its rights
hereunder. The failure or delay by any party in exercising
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any right, power or remedy under this Agreement shall not operate as a waiver of
any such right, power or remedy.
6. ASSIGNMENT
No party may assign or sublicense any of its rights or delegate any of its
obligations under this Agreement to any third party without the express written
consent of the other parties, and such consent shall not be unreasonably
withheld.
7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be performed
entirely within the State.
8. SEVERABILITY
If any provision or provisions of this Agreement shall be held to be
illegal, invalid or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
9. NOTICES
Any notice or payment required or permitted to be made by or given by any
party hereto shall be sufficiently made or given on the date sent by such party
to the other parties by mail, facsimile, commercial overnight courier, personal
delivery, or a similar reliable delivery method, addressed as set forth below or
to such other address as any other party shall designate by written notice given
to the party giving the notice or making the payment in accordance with this
Agreement.
In the case of the Company:
American Interactive Media, Inc.
000 Xxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx Xxxxx, Secretary
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
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In the case of Xxxxxxxxx:
Xxxxxxxxx Digital, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy Number: (000) 000-0000
In the case of Pioneer:
Pioneer Ventures Associates Limited Partnership
000 Xxx Xxxx Xxxx
X.X. Xxx 00
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Managing Director
with a copy to:
Xxxxxx Gottbetter & Xxxxxxxx
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopy Number: (000) 000-0000
In the case of Xxxxx:
Xxxx Xxxxx
c/o American Interactive Media, Inc.
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy Number: (000) 000-0000
10. HEADINGS
The headings used in this Agreement are inserted for convenience of
reference only and shall not be a part of, or affect the meaning or
interpretation of, this Agreement.
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11. INJUNCTIVE RELIEF
It is possible that remedies that exist at law may be inadequate and,
therefore, the parties hereto shall be entitled to equitable relief including,
without limitation, injunctive relief, specific performance or other equitable
remedies in addition to all other remedies provided hereunder or available to
the parties hereto at law or in equity.
12. ENTIRE AGREEMENT
This Agreement contains the entire and exclusive agreement between the
parties relating to the subject matter hereof and shall not be modified except
in writing, signed by the parties hereto. This Agreement supersedes all prior
agreements, oral or written, and all other communications between the parties
relating to the subject matter of this Agreement.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be an original with respect to the party executing the counterpart and all
of which together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Pioneer, Xxxxxxxxx and Xxxxx have caused this Agreement
to be executed and delivered as of the date first set forth above by their duly
authorized representatives.
PIONEER VENTURES ASSOCIATES LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxx
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Name:
Title:
XXXXXXXXX DIGITAL INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name:
Title:
XXXX XXXXX
/s/ Xxxx Xxxxx
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