VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of the 20th day of
June, 2000 by and among Overseas Filmgroup, Inc. ("Company"), Xxxxxxxx Street
Productions, LLC ("Xxxxxxxx"), Xxxxxx Xxxxxx ("Xxxxxx"), Xxxxx Xxxxxx ("Xxxxx"),
MRCo., Inc. ("MRCo."), Xxxxxxxxxxx Xxxxxx ("Xxxxxxxxxxx") and Xxxxxxx Xxxxxx
("Xxxxxxx").
WHEREAS, each of Rosemary, Robert, Xxxxx, MRCo., Xxxxxxxxxxx and Xxxxxxx is
a shareholder of the Company;
WHEREAS, Xxxxxxxx (of which MRCo. is a member) is purchasing shares of
common stock, $.001 par value ("Common Stock") and Series A Preferred Stock,
$.001 par value ("Preferred Stock") of the Company pursuant to a Securities
Purchase Agreement dated of even date herewith ("Securities Purchase
Agreement"); and
WHEREAS, as a condition to the Securities Purchase Agreement, the Company,
Rosemary, Robert, Xxxxx, MRCo., Xxxxxxxxxxx and Xxxxxxx have agreed to enter
into an agreement whereby each of Rosemary, Robert, Xxxxx and MRCo. agree to
nominate for election as directors certain persons or nominees of parties to
this agreement and to vote the shares of voting capital stock of the Company
that they each own for such nominee directors.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants set forth below, the parties hereto agree as follows:
1. Voting Terms.
(a) So long as (i) Xxxxxx is employed as the President of the Company
or (ii) Xxxxxx and Xxxxx together beneficially own five percent (5%) or more of
all the Voting Securities (as defined herein), then Xxxxxxxx shall use its best
efforts to nominate Xxxxxx for election as a director or appoint Xxxxxx as a
director of the Company and vote all of its Voting Securities for Xxxxxx in an
election of directors by the stockholders. Xxxxxxxx shall not vote any of its
Voting Securities for the removal of Xxxxxx as a director, except in the event
Xxxxxx is being removed for "cause."
(b) So long as Xxxxxxxxxxx and Xxxxxxx together beneficially own five
percent (5%) or more of all the Voting Securities, then each of Robert, Ellen,
and Xxxxxxxx shall use its best efforts to nominate Xxxxxxxxxxx and Xxxxxxx for
election as a director or appoint either of them as a director of the Company
and vote all their Voting Securities for Xxxxxxxxxxx and Xxxxxxx in an election
by the stockholders. Xxxxxx, Xxxxx and Xxxxxxxx shall not vote any of their
Voting Securities for the removal of either Xxxxxxxxxxx or Xxxxxxx as a
director, except in the event either of them is being removed for "cause."
(c) So long as MRCo. beneficially owns five percent (5%) or more of
all the Voting Securities, then each of Xxxxxx, Xxxxx and Xxxxxxxx shall use its
best efforts to nominate for election or appoint as a director of the Company a
person selected by MRCo. and vote all their Voting Securities for such nominee
in an election of directors by the stockholders. Xxxxxx, Xxxxx and Xxxxxxxx
shall not vote any of their Voting Securities for the removal of the director
nominee of MRCo., except in the event the person is being removed for "cause."
MRCo. agrees that any person nominated by it for election or appointment as
director will be reasonably acceptable to the majority of the then sitting board
of directors of the Company, which approval will not be unreasonably withheld
and when withheld only upon written notice to MRCo. by the board of directors
stating their specific objections to the nominee. Such notice shall be sent to
MRCo. within three days of receipt of the name of the nominee by the Company for
inclusion in the proxy statement of the Company relating to the election of
directors or the appointment of such person to the board of directors of the
Company.
(d) For a period of two years after the date of this Agreement, if the
board of directors of the Company is increased from its current size of nine
persons to consist of a board of eleven persons, Xxxxxxxx shall have the right
to nominate for election or appoint as directors the two persons to fill the two
vacancies created by the increase in the number of directors to eleven persons.
Each of Xxxxxx and Xxxxx agree to vote all their Voting Securities for such
nominees in an election of directors by the stockholders.
2. Transfer or Acquisition of Voting Securities. The obligations under this
Agreement will end as to any of the Voting Securities upon their transfer by a
party where such party is no longer the beneficial owner thereof hereto and will
attach to any Voting Securities upon their being acquired by a party hereto.
Notwithstanding the foregoing, if any of the Voting Securities are transferred
by Xxxxxxxx or MRCo. to their respective members or shareholders, the
transferees of such Voting Securities will be subject to the terms of this
Agreement as if they were the transferor, and prior to the Company being
obligated to effect the transfer on the books and records of the Company, the
transferee shall enter into a written agreement accepting the obligations of
this Agreement as it relates to their Voting Securities and the rights the
transferor has as to any nominations or appointments of directors.
3. Power of Appointment. Each party has the power to appoint another
shareholder of the Company or proxy designated by the Company with the authority
to exercise the voting of any Voting Securities beneficially owned by such
party, so long as the person with the appointment votes the securities in
accordance with the terms of this Agreement.
4. Entire Agreement; Modifications and Amendments. This writing constitutes
the entire agreement of the parties with respect to the subject matter hereof
and may not be modified, amended or terminated (other than in accordance with
its terms) except by a written agreement specifically referring to this
Agreement signed by all of the parties hereto.
5. Waivers. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
6. Legends. Each stock certificate currently outstanding and evidencing
shares subject to the provisions of this Agreement, as soon as practicable after
the execution of this Agreement, shall be submitted to the Company by the party
to this Agreement for the purpose of putting the following legend thereon, and
each stock certificate issued after the date hereof evidencing shares of the
Company's capital stock subject to the provisions of this Agreement (including
any shares issued upon a transfer, stock split, stock dividend,
recapitalization, merger or other similar event) shall at all times during the
term of this Agreement bear the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A
VOTING AGREEMENT DATED AS OF JUNE 20, 2000.
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7. Titles and Subtitles. The section headings contained herein are for
convenience only and are not intended to define or limit the contents of said
sections.
8. Cooperation. Each party hereto shall take such further action and shall
execute and deliver such further documents as may be reasonably requested by any
other party in order to carry out the provisions and purposes of this Agreement.
9. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
10. Governing Law. This Agreement and all amendments hereof shall be
governed by and construed in accordance with the laws of the State of Delaware,
disregarding any principles of conflicts of laws that would otherwise provide
for the application of the substantive laws of another jurisdiction.
11. Specific Performance. Without limiting the rights of each party hereto
to pursue all other legal and equitable rights available to such party for any
other party's failure to perform its obligations under this Agreement, each such
party acknowledges and agrees that the remedy at law for any failure to perform
obligations hereunder would be inadequate and all such parties shall be entitled
to specific performance, injunctive relief or other equitable remedies in the
event of any such failure.
12. Definitions.
"Cause" means fraud or dishonest action by the person in his relations
with the Company or any of its subsidiaries or affiliates, or the conviction of
the person of any crime involving an act of moral turpitude or a felony crime.
"Voting Securities" means any and all of the issued and outstanding
equity securities of the Company entitled to vote together for the election of
directors of the Company, including, but not limited to, the Common Stock, the
Series A Preferred Stock, and any other securities convertible into such equity
securities that have any right to vote for the election of directors of the
Company.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement on the date first above written.
OVERSEAS FILMGROUP, INC.
/s/ Xxxxxxx Xxxxxxx
By:_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer and
Chief Financial Officer
XXXXXXXX STREET PRODUCTIONS, LLC
/s/ Xxxxxxxxxxx Xxxxxx
By:_________________________________
Name: Xxxxxxxxxxx Xxxxxx
Title: President
MRCo., Inc.
/s/ Xxxxxx X. Xxxxxxx
By:_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxx
____________________________________
XXXXXX XXXXXX, individually
/s/ Xxxxx Xxxxxx
____________________________________
XXXXX XXXXXX, individually
/s/ Xxxxxxxxxxx Xxxxxx
____________________________________
XXXXXXXXXXX XXXXXX, individually
/s/ Xxxxxxx Xxxxxx
____________________________________
XXXXXXX XXXXXX, individually
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