EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT"), is made and entered
into as of September 2, 2005, by and between Xxxx Xxxxxx ("XXXXXX") and Avenue
Entertainment Group, Inc. a Delaware corporation (the "COMPANY") with reference
to the following facts:
X. Xxxxxx is a stockholder and optionholder of the Company.
B. Pursuant to that certain Asset Purchase Agreement dated as
of even date herewith by and among Xxxx Xxxxxx Productions, Inc., a Delaware
corporation and wholly owned subsidiary of the Company ("CPI") Xxxxxx, Avenue
Pictures, Inc., a Delaware corporation ("API"), and the Company, among other
things, (1) API transferred certain of its assets, and assigned certain of its
liabilities, to CPI, (2) CPI granted API a right to certain of its revenues to
which it may be entitled to receive in the future, (3) Xxxxxx transferred
711,250 shares of the Company's common stock ("COMPANY COMMON STOCK") to API,
(4) Xxxxxx delivered to the Company for cancellation all options held by him to
purchase shares of Company Common Stock, and (5) the Company agreed to issue
Xxxxxx a new option to purchase 500,000 shares of Company Common Stock.
C. The parties desire to enter into this Agreement to
memorialize their agreements regarding the voting of shares of Company Common
Stock held by Xxxxxx as further described herein.
NOW, THEREFORE, in consideration of the foregoing recitals and
the agreements and covenants contained herein and other valuable consideration,
the parties hereto agree as follows:
1. DEFINITIONS.
------------
1.1 "BOARD OF DIRECTORS" means the Company's board of directors.
1.2 "COMPANY COMMON STOCK" has the meaning ascribed to it in the
recitals.
1.3 "PERSON" includes any individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership, association,
trust or other entity or organization, whether or not a legal entity and whether
foreign or domestic, or any governmental body.
1.4 "SHARES" shall mean 700,000 shares of Company Common Stock retained
by Xxxxxx following completion of the transactions contemplated by the Asset
Purchase Agreement.
1.5 "VOTE" means, with respect to any Shares, to (i) vote, or to cause
to be voted, all such Shares at all annual and special meetings of the Company's
stockholders, however called, or any postponements or continuations thereof and
(ii) execute, or cause to be executed, with respect to all such Shares, all
written consents of the Company's stockholders in lieu of any annual or special
meeting of the Company's stockholders.
2. AGREEMENT TO VOTE.
------------------
2.1 VOTING AGREEMENT. Until the termination of this Agreement in
accordance with its terms, Xxxxxx hereby irrevocably and unconditionally agrees
to Vote the Shares in accordance with the recommendation of the Board of
Directors (or any committee thereof formed for the purpose of giving such
direction to the Stockholders) with respect to each matter for which the Board
of Directors makes any recommendation to the Company's stockholders as to how to
Vote their shares.
2.2 GRANTING OF PROXY. In the event that Xxxxxx shall fail to vote the
Shares as required pursuant to Section 2.1 above with respect to any matter for
which the Board of Directors makes any recommendation to the Company's
stockholders as to how to Vote their shares, Xxxxxx shall be deemed immediately
upon the existence of such a breach to have granted to the Chairman of the Board
of Directors of the Company a proxy to Vote the Shares as required pursuant to
Section 2.1 above. Xxxxxx acknowledges that the proxy granted hereby, including
any successive proxy if need be, is given to secure the performance of a duty,
is coupled with an interest, and shall be irrevocable until the duty is
performed.
3. TERMINATION AND AMENDMENT OF AGREEMENT.
---------------------------------------
3.1 TERMINATION.
(a) This Agreement shall terminate upon the first to occur of
the following: (i) September 2, 2007, and (ii) the written agreement of the
Company and Xxxxxx.
(b) The application of this Agreement shall terminate as to
any Shares sold or transferred by Xxxxxx to any Person who is not an Affiliate
of Xxxxxx, within the meaning of Rule 12b-2 under the Securities Exchange Act of
1934, as amended.
3.2 AMENDMENT AND MODIFICATION. This Agreement may be amended or
modified only with the written consent of the Company and Xxxxxx, expressly
setting forth the amendments or modifications.
4. MISCELLANEOUS.
--------------
4.1 ENTIRE AGREEMENT. This Agreement, including the exhibits hereto and
the agreements expressly referred to herein, constitutes the entire
understanding between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written. There are no warranties, representations or other
agreements between the parties, in connection with the subject matter hereof,
except as specifically set forth herein. No supplement, modification, waiver or
termination of this Agreement shall be binding unless made in writing and in
compliance with the provisions of Sections 3.2 or 4.2.
-2-
4.2 WAIVERS. No term, condition or provision of this Agreement may be
waived except by an express written instrument to such effect signed by the
party to whom the benefit of such term, condition or provision runs. No such
waiver of any term, condition or provision of this Agreement shall be deemed a
waiver of any other term, condition or provision, irrespective of similarity, or
shall constitute a continuing waiver of the same term, condition or provision,
unless otherwise expressly provided. No failure or delay on the part of any
party in exercising any right, power or privilege under any term, condition or
provision of this Agreement shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
other right, power or privilege.
4.3 SEVERABILITY. In the event any one or more of the terms, conditions
or provisions contained in this Agreement should be found in a final award or
judgment rendered by any court or arbitrator or panel of arbitrators of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining terms, conditions and
provisions contained herein shall not in any way be affected or impaired
thereby, and this Agreement shall be interpreted and construed as if such term,
condition or provision, to the extent the same shall have been held invalid,
illegal, or unenforceable, had never been contained herein, provided that such
interpretation and construction is consistent with the intent of the parties as
expressed in this Agreement.
4.4 APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without reference to the
choice of law principles thereof.
4.5 EXECUTION AND COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
instrument. Any one of such counterparts shall be sufficient for the purpose of
proving the existence and terms of this Agreement, and no party shall be
required to produce an original or all of such counterparts in making such
proof.
4.6 COVENANT OF FURTHER ASSURANCES. All parties to this Agreement
shall, upon request, perform any and all acts and execute and deliver any and
all certificates, instruments and other documents that may be necessary or
appropriate to carry out any of the terms, conditions and provisions hereof or
to carry out the intent of this Agreement.
4.7 NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall
be deemed to confer any right or benefit on any Person who is not a party to
this Agreement.
4.8 CONSTRUCTION; REPRESENTATION BY COUNSEL. The parties hereto
represent that they have been represented and advised by counsel in connection
with the negotiation and preparation of this Agreement, and this Agreement shall
be deemed to have been drafted jointly by the parties, notwithstanding that one
party or the other may have performed the actual drafting hereof. This Agreement
shall be construed and interpreted in accordance with the plain meaning of its
language, and not for or against either party, and as a whole, giving effect to
all of the terms, conditions and provisions hereof.
-3-
4.9 NOTICES. All notices and communications to be given or otherwise
made to any party hereto shall be deemed to be sufficient if contained in a
written instrument delivered in person or by facsimile or duly sent by first
class registered or certified mail, return receipt requested, postage prepaid,
or by overnight courier, or addressed to such party at the following address or
facsimile number:
If to Xxxxxx:
Xxxx Xxxxxx
00000 X. Xxxxxxxxxx Xxxx.
Xxxxx Xxxx Bldg., Xx. 000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
If to the Company:
Avenue Entertainment Group, Inc.
c/o Xxxx Xxxxxxx Productions, LLC
00 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or facsimile number as the party to whom notice is to
be given may have furnished to the other party hereto in writing in accordance
herewith. Any such notice or communication shall be deemed to have been
delivered and received: (a) in the case of personal delivery or delivery by
facsimile, on the date of such delivery, (b) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent and (c) in the case of mailing, on the third business day following
that on which the piece of mail containing such communications is posted. As
used in this Section, "BUSINESS DAY" shall mean any day other than a day on
which banking institutions in the State of California are legally closed for
business.
[rest of page intentionally left blank]
-4-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date, month and year first above written.
/S/ XXXX XXXXXX
----------------------------------
XXXX XXXXXX, an individual
AVENUE ENTERTAINMENT GROUP, INC.,
a Delaware corporation
By: /S/ XXXX XXXXXXX
------------------------------
Name: XXXX XXXXXXX
----------------------------
Title: CHAIRMAN OF THE BOARD
---------------------------
-5-
