VOTING AGREEMENT
Exhibit
10.1
This
VOTING AGREEMENT (this “Agreement”), is made and
entered into this 7th day of
October 2008 by and among RME Merger Sub Corp., a Delaware corporation (“Merger Sub”), and the
undersigned stockholders (collectively, the “Stockholders” and
individually, a “Stockholder”) of Red Mile
Entertainment, Inc., a Delaware corporation (the “Company”).
1.1 At
any meeting of the stockholders of the Company called with respect to the
Merger, the Merger Agreement and the other transactions contemplated thereby,
and at any adjournment thereof, and on every action or approval by written
consent of stockholders of the Company, and with respect to any consent
solicited with respect to the Merger, the Merger Agreement and any of the other
transactions contemplated thereby, the Stockholders shall vote the Shares (a) in
favor of approval of the Merger, the Merger Agreement, the other transactions
contemplated thereby and any matter which could reasonably be expected to
facilitate the Merger and such other transactions and (b) against approval or
adoption of any Alternative Transaction or any other proposal that is intended
or would reasonably be construed to be in opposition to, or in competition with,
or in conflict with adoption of the Merger Agreement and consummation of the
transactions contemplated thereby. Each Stockholder may vote on all
other matters in a manner determined in his, her or its sole
discretion.
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1.2 Each
Stockholder, as the holder of record or beneficial owner of voting stock of the
Company, shall be present, in person or by proxy, at all meetings of
stockholders of the Company and at any adjournment thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the matters addressed in Section 1.1, so that all Shares are counted for
the purpose of determining the presence of a quorum at such meetings or on such
written consent. The Stockholders shall not enter into any agreement
or understanding with any person or entity to vote or give instructions in any
manner inconsistent with the terms of this Section 1.
5. Transfers of
Shares. Each Stockholder hereby agrees that, at all times
during the period commencing with the execution and delivery of this Agreement
until the Expiration Date, such Stockholder (a) shall not cause or permit the
Transfer (as defined below) of any Shares, or any interest in the Shares, to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
Shares, and (b) shall not deposit (or permit the deposit of) any Shares in a
voting trust or grant any proxy, or enter into any voting agreement or similar
agreement or arrangement in contravention of the obligations of such Stockholder
under this Agreement with respect to the Shares.
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Each
Stockholder further agrees with, and covenants to, Merger Sub that such
Stockholder shall not request that the Company register the Transfer of any
certificate or uncertificated interest representing any of the Shares, unless
such Transfer is made in compliance with this Section 5. From and
after the date of this Agreement, through the Expiration Date, the Company will
not register or otherwise recognize the Transfer (book-entry or otherwise) of
any Shares or any certificate or uncertificated interest representing any of the
Stockholders’ Shares, except as permitted by, and in accordance with this
Section 5. This Section 5 shall not prohibit a Transfer of Shares by
any Stockholder (A) to any member of such Stockholder’s immediate family, or to
a trust for the benefit of such Stockholder or any member of such Stockholder’s
immediate family, or (B) upon the death of such Stockholder; provided however,
that a Transfer referred to in this sentence shall be permitted only if, as a
precondition of such Transfer, the transferee shall have (i) duly executed a
counterpart of this Agreement and a proxy in the form attached hereto as Exhibit B, and (ii)
agreed in writing to hold such Shares, or such interest therein, subject to all
of the terms and conditions set forth in this Agreement. For purposes
of this Agreement, a person or entity shall be deemed to have effected a “Transfer” of a security if
such person or entity, directly or indirectly: (i) sells, offers to sell, makes
any short sales of, pledges, encumbers, lends, hypothecates, enters into any
type of equity swap or hedging of, grants an option with respect to, transfers
or disposes of such security, any interest therein, or the economic consequences
of ownership of such security or (ii) enters into an agreement, contract or
commitment providing for the sale of, making any short sales of, pledge of,
lending of, encumbrance of, equity swap or hedging of, grant of an option with
respect to, transfer of or disposition of such security, any interest therein or
the economic consequences of ownership of such security, other than any such
actions pursuant to which such person or entity maintains all voting rights with
respect to such security.
(a) The
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by the Stockholder, and the consummation of the
transactions contemplated hereby, has been duly authorized by all necessary
action on the part of the Stockholder.
(b) This
Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder enforceable in
accordance with its terms, subject to its enforceability against Merger Sub and
the effect of applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors’ rights generally and subject to the effect of
general principles of equity, including, without limitation, the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of or default (with or without notice
or lapse of time or both) under or the acceleration of any provision of any
trust agreement, partnership agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to the Stockholder or to any of the property or
assets of the Stockholder.
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(c) No
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic, foreign or supranational,
is required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by the Stockholder
of the transactions contemplated hereby.
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(a) if
to Merger Sub, to:
SilverBirch
Inc.
Xxxxx
000
000
Xxxxxxx Xxxxx
Xxxxxxx,
XX X0X 0X0
Attention: Chief
Executive Officer
Fax
No.: (000) 000-0000
with a
copy to:
Xxxxx
Xxxxxxx LLP
000 Xxxx
Xxxx Xxxx, 0xx Xxxxx
Xxxx
Xxxx, XX 00000-0000
Attention:
Xxxxxxx Xxxxxx
Fax No.:
(000) 000-0000
(b) if
to a Stockholder, to the address set forth opposite such Stockholder’s name on
Exhibit
A,
or to
such other address as any party hereto may have furnished to the other parties
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
10.6 Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts to be executed and performed entirely within such State.
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IN
WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the day and year first above written.
MERGER
SUB:
RME
MERGER SUB CORP.
By: /s/
Name: Xxxxx
van der Plaat
Title: President
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STOCKHOLDER
COUNTERPART SIGNATURE PAGE TO
This page
constitutes a signature page (this “Signature Page”) to
the Voting Agreement among RME Merger Sub Corp. and the stockholders of Red Mile
Entertainment, Inc. named therein (the “Voting Agreement”) in
your capacity as a Stockholder (as defined in the Voting
Agreement). Execution of this Signature Page constitutes your
execution of the Voting Agreement. The Stockholder acknowledges and
agrees that he, she or it is subject to the terms and conditions set forth in
the Voting Agreement upon execution of this Signature Page.
STOCKHOLDER:
Print
Name: ____________________________
Signature:
____________________________
Name: ____________________________
Title:
____________________________
(if
applicable)