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Exhibit 6
STOCKHOLDERS AGREEMENT
This Stockholders Agreement ("Agreement") is made and entered into as of
January 8, 1997, by and among Video City, Inc., a Delaware corporation (formerly
Prism Entertainment Corporation) (the "Company"), Xxxxxx X. Xxx ("Xxx"), an
individual and a resident of California, on behalf of himself and as Trustee of
the Xxxxxx X. Xxx Revocable Living Trust UDT 1/9/91 (the "Trust"), Xxxxx Xxxxxxx
("Xxxxxxx"), an individual and a resident of California, and Xxxxxx
Entertainment Inc., a Tennessee corporation ("Xxxxxx") (such parties other than
the Company being collectively referred to herein as the "Stockholders," as
further defined in Article I) with respect to the following facts:
RECITALS
A. VCI and the Company have entered into that certain Agreement and Plan of
Reorganization and Merger dated as of October 25, 1996, as amended by that
certain Agreement and Plan of Reorganization and Merger, dated December 20,
1996, and that certain Second Amended Agreement and Plan of Reorganization and
Merger, dated December 24, 1996, with respect to the merger (the "Merger") of
VCI into the Company.
B. As a result of the Merger, each of the Stockholders will own the
following number of issued and outstanding "Shares" (as further defined in
Article I) of Common Stock of the Company:
Stockholder Number of Shares
----------- ----------------
Xxxxxxx 818,050
Xxx and the Trust 2,719,024
Xxxxxx 1,500,000
C. In order to provide for the stability of the Company and to promote the
continuity of its management and policies, the Company and the Stockholders
desire to, among other things, restrict the manner and means by which the Shares
may be sold, assigned or otherwise transferred.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
herefrom and of the mutual agreements hereinafter set forth, the parties hereto
hereby agree as follows:
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ARTICLE I
Definitions
Affiliate. An "Affiliate" of a Person shall mean (i) a Person directly or
indirectly Controlling, Controlled by or under common Control with such Person;
(ii) a Person owning or Controlling 10% or more of the outstanding voting
securities of such Person; or (iii) an officer, director, or partner, or member
of the immediate family of an officer, director, or partner, of such Person.
When the Affiliate is an officer, director, or partner or member of the
immediate family of an officer, director, or partner, of such Person, any other
Person for which the Affiliate acts in that capacity shall also be considered an
Affiliate.
Agreement. The "Agreement" shall mean this Stockholders Agreement, as it
may be amended from time to time hereafter.
Bona Fide Offer. A "Bona Fide Offer" shall mean an offer in writing to a
Stockholder, offering to purchase all or any part of the Shares owned by such
Stockholder or any interest of the Stockholder therein, and setting forth all
the relevant terms and conditions of the proposed purchase, from an offeror who
is ready, willing and able to consummate the purchase and who is neither the
Company nor an Affiliate of such Stockholder; provided, however, that a Bona
Fide Offer shall not include (a) the sale of Shares sold in a brokers'
transaction ("Brokers' Transaction") as such term is contemplated by Section
4(4) of the Securities Act of 1933, as amended, or to an underwriter pursuant to
an effective registration statement (an "Underwriter Transaction"); (b) the
surrender for cancellation of up to 250,000 shares as referred to in Section
8.2(g) of the Merger Agreement (a "Section 8.2(g) Surrender"); and (c) up to
410,444 shares to be delivered to Xxxxxx by Xxx pursuant to the exercise of
warrants in favor of Xxxxxx (an "Xxxxxx Warrant Exercise").
Common Stock. "Common Stock" shall mean the common stock of the Company.
Control. "Control" of a Person shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
Person. A "Person" shall mean any entity, corporation, company,
association, joint venture, joint stock company, partnership, trust,
organization, individual (including personal representatives, executors and
heirs of a deceased individual), nation,
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state, government (including agencies, departments, bureaus, boards, divisions
and instrumentalities thereof), trustee, receiver or liquidator.
Stockholder. A "Stockholder" shall mean each of the persons specified in
the first paragraph of this Agreement and each other Person who succeeds to the
interest of such named Person in and to any Shares in a manner permitted by the
provisions of this Agreement.
Shares. The "Shares" shall mean the shares of the Common Stock specified in
Recital B above (exclusive of 208,050 shares owed by Xxxxxxx or an affiliate of
Xxxxxxx based on his pre-Merger interest in Prism Entertainment Corporation (the
"Old Xxxxxxx Shares")), together with any other shares of the capital stock of
the Company hereafter acquired by any Stockholder and any other shares or
securities thereafter issued in respect of such shares in any reorganization,
recapitalization, reclassification, stock dividend, readjustment or other change
in a capital structure of the Company.
Transfer. A "Transfer" of Shares or any interest of a Stockholder therein
shall mean any sale (other than pursuant to a Brokers' Transaction, an
Underwriter Transaction, a Section 8.2(g) Surrender, or an Xxxxxx Warrant
Exercise), assignment, transfer, disposition, pledge, hypothecation or
encumbrance, whether direct or indirect, voluntary, involuntary or by operation
of law, and whether or not for value, of such Shares or such interest of a
Stockholder therein; except, the term Transfer shall not include (a) any pledge
of Common Stock made by a Stockholder pursuant to a bona fide loan transaction
which creates a mere security interest, (b) any transfer of Common Stock to the
Company pursuant to a written agreement between the Company and a Stockholder
providing for the right of the Company to repurchase shares of its Common Stock,
(c) any transfer to a Stockholder's ancestors or descendants or spouse or to a
trustee for their benefit, (d) any bona fide gift of Common Stock or (e) any
transfer by Xxxxxx to an Xxxxxx Affiliate; provided, that (i) the transferring
Stockholder shall inform the other Stockholders of such pledge, transfer or gift
prior to effecting it and (ii) the pledgee, transferee or donee shall furnish
the other Stockholders and the Company with a written agreement to be bound by
and comply with all provisions of this Agreement applicable to the transferring
Stockholder. In each of the foregoing cases (a) through (e), such Transferred
Shares shall remain Shares subject to this Agreement and the permitted
transferees shall be treated as "Stockholders" for purposes of this Agreement.
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ARTICLE II
Restriction on Transfer of Shares
No Shares and no interest of a Stockholder in any Shares may be Transferred
except in accordance with the terms of this Agreement. Any such attempted
Transfer in violation of this Agreement shall be null and void ab initio, and
neither the Company nor any transfer agent of the Company shall give effect to
any such attempted Transfer in its stock records or for any other purpose
whatsoever.
ARTICLE III
Right of First Refusal of Xxx and Xxxxxxx
3.1 Option to Purchase Shares. In the event Xxxxxx proposes to Transfer all
or any part of its Shares or any interest therein ("Offered Shares"), the
following provisions shall apply:
3.1.1 Stockholder Sale Notice. In the event that Xxxxxx negotiates
a Bona Fide Offer, Xxxxxx shall give to the other Stockholders a written notice
(the "Stockholder Sale Notice") setting forth as to each Person to whom the sale
is proposed to be made: (a) the name and address of that Person and, if that
Person is a corporation or other entity, the owners of 10% or more thereof; (b)
the number of Offered Shares proposed to be sold to that Person; (c) the manner
in which the sale is proposed to be made; and (d) the price at which and the
material terms upon which the sale is proposed to be made.
3.1.2 Purchase Option - Other Stockholders. If the conditions
prescribed in Section 3.1.1 hereof have been met in connection with the proposed
sale of the Offered Shares by Xxxxxx, the remaining Stockholders, pro rata in
accordance with their respective ownership interests in the total number of
Shares owned by such Stockholders (as of the day immediately preceding the
receipt of the Stockholder Sale Notice) shall then have a purchase option (the
"Purchase Option"), for a period of ten (10) calendar days thereafter, to elect
to purchase all, or any part, of the Offered Shares at a purchase price that is
equal to 120% of the purchase price and otherwise substantially upon the terms
specified in the Stockholder Sale Notice. If all remaining Stockholders do not
exercise their Purchase Option as to the entire part of the Offered Shares to
which they are entitled, then the Stockholder electing to purchase shall have
the right to elect to purchase the remaining part of the Offered Shares
available for purchase. If the Stockholders so exercising their Purchase Option
shall, within the ten (10) calendar day period, deliver to Xxxxxx an exercise
notice (the "Exercise Notice") so informing Xxxxxx, then, at the time the
Exercise Notice is received by Xxxxxx a binding agreement
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shall arise between Xxxxxx and the electing Stockholders concerning the sale of
such Shares in accordance with this Article.
Notwithstanding the foregoing, however, if the remaining Stockholders do
not elect to purchase all of the Offered Shares subject to the right of first
refusal pursuant to this Article III, Xxxxxx may sell or dispose of all of the
Offered Shares to the Person described in the Stockholder Sale Notice and upon
the terms set forth in the Stockholder Sale Notice, which Shares shall be free
from any claim or restriction under this Agreement. Any such sale of the Offered
Shares must be effected within thirty (30) calendar days after the termination
of the Stockholders' Purchase Option. If no such sale is effected within said
thirty (30) calendar day period, or if the identity of the proposed purchaser or
the terms of the Bona Fide Offer change materially from those specified in the
Stockholder Sale Notice, or if a sale of the Offered Shares is effected upon
terms materially different from those set forth in the Stockholder Sale Notice,
the Offered Shares shall once again be subject to the provisions of this
Article III.
3.2 Closing of Purchase Option. The closing of any purchase of the Offered
Shares pursuant to the Purchase Option shall take place at the principal offices
of the Company on the 10th calendar day following the delivery of the last
Exercise Notice. At the closing, Xxxxxx shall deliver to the Stockholders
certificates representing the Offered Shares, duly endorsed for transfer or
accompanied by duly executed stock powers, and the purchasing Stockholders shall
deliver to Xxxxxx the purchase price to be paid as herein provided.
ARTICLE IV
Co-Sale Rights of Xxxxxx
4.1 Notice of Purchase Offers. Should any Stockholder other than Xxxxxx
propose to accept a Bona Fide Offer from any Person to purchase Shares owned by
such Stockholder (exclusive of any of the Old Xxxxxxx Shares), then such
Stockholder (the "Selling Stockholder"), shall promptly give written notice to
Xxxxxx of the terms and conditions of such Bona Fide Offer.
4.2 Right to Participate. Xxxxxx shall have the right, exercisable upon
written notice to the Selling Stockholder within ten (10) calendar days after
receipt of the notice of the Bona Fide Offer, to participate in the Selling
Stockholder's sale of Shares on the same terms and conditions contained in the
Bona Fide Offer. To the extent Xxxxxx exercises such right of participation, the
number of Shares which the Selling Stockholder may sell pursuant to this Article
shall be correspondingly reduced. The right of participation of Xxxxxx shall be
subject to the following terms and conditions:
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(a) Xxxxxx may sell all or any part of that number of Shares equal to
(as of the day immediately preceding the receipt of the written notice described
above) the aggregate number of Shares covered by the Bona Fide Offer multiplied
by that fraction, the numerator of which is the total number of Shares owned by
Xxxxxx on a fully-diluted basis (including any Shares issuable in connection
with the exercise of any option, warrant or similar right), and the denominator
of which is all of such Xxxxxx Shares plus the total number of Shares owned by
the Selling Stockholder on a fully-diluted basis (including any Shares issuable
in connection with the exercise of any option, warrant or similar right).
(b) Xxxxxx may participate in the sale by delivering to the
Selling Stockholder for transfer to the purchase offeror one or more
certificates, properly endorsed for transfer, which represent the number of
Shares which Xxxxxx elects to sell pursuant to this Section 4.2.
4.3 Consummation of Sale. The stock certificate or certificates which
Xxxxxx delivers to the Selling Stockholder pursuant to Section 4.2 shall be
delivered by the Selling Stockholder to the purchase offeror in consummation of
the sale of the Shares pursuant to the terms and conditions specified in the
written notice to Xxxxxx, and the Selling Stockholder shall cause the purchase
offeror to pay to Xxxxxx that portion of the sale proceeds to which Xxxxxx is
entitled by reason of its participation in such sale.
4.4 Ongoing Rights. The exercise or non-exercise of the rights of Xxxxxx
hereunder to participate in one or more sales of Shares made by a Selling
Stockholder shall not adversely affect its right to participate in subsequent
sales of Shares by a Selling Stockholder pursuant to Section 4.1 hereof.
ARTICLE V
Preemptive Rights of Xxxxxx
In the event of the issuance, sale or distribution for cash by the Company
of any voting or other security of the Company or security convertible into or
exercisable for such security commenced or declared subsequent to the date
hereof, other than Shares or rights to Shares issued pursuant to an employee
benefit plan or otherwise for property (other than cash equivalents or evidences
of indebtedness) or services, Xxxxxx shall be entitled to participate in such
issuance, sale or distribution on a pro rata basis in respect of the Shares
owned by Xxxxxx so that following such issuance, sale or distribution Xxxxxx
will, if it has elected to purchase the new securities to be issued, sold or
distributed, have the same percentage of the equity ownership of the Company as
Xxxxxx had by reason of its ownership of Shares prior to such issuance, sale or
distribution.
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ARTICLE VI
Board of Directors
During the term of this Agreement, each Stockholder shall use its or his
best efforts to cause the number of directors of the Company to be eight and
shall vote, or cause to be voted, at each election of members of the Board of
Directors of the Company, all of his or its Shares in favor of two designees of
Xxxxxx, four designees of Xxx and two designees of Xxxxxxx. Notwithstanding the
foregoing, Xxxxxx shall have no right to so designate a member of the Board of
Directors upon and after Xxxxxx'x beneficial ownership interest (assuming, for
purposes of this calculation, the exercise or conversion of all options,
warrants, rights, or convertible securities held by Xxxxxx) in the Company
Common Stock (together with that of any Affiliate of Xxxxxx) is 4% or less of
the outstanding Common Stock. Additionally, subject to the exercise of their
fiduciary duties, Xxx and Xxxxxxx shall use their best efforts to appoint a
designee of Xxxxxx to the Compensation Committee of the Company.
ARTICLE VII
Amendment of Employment Agreements
Except for that certain Amendment to Agreement and Plan of Reorganization
and Merger, dated as of December 20, 1996, neither Xxxxxxx nor Xxx nor the
Company shall enter into any amendment, modification or waiver of their
Employment Agreements with the Company nor shall the Company extinguish, forgive
or reduce (except for payment made) any debt owed to the Company from any
employee without the prior written consent of Xxxxxx.
ARTICLE VIII
Termination of Agreement
This Agreement shall terminate, and the certificates representing the
Shares shall be released from the terms of this Agreement upon the first to
occur of the following events:
8.1 By Agreement. The written agreement of the Company and all of the
Stockholders bound by the terms of this Agreement;
8.2 One Stockholder. At such time as there is only one remaining
Stockholder of the Company;
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8.3 Liquidation. The liquidation and dissolution of the Company; or
8.4 Xxxxxx'x Ownership Interest in the Company. Xxxxxx'x beneficial
ownership interest (assuming, for purposes of this calculation, the exercise or
conversion of all options, rights, warrants or convertible securities held by
Xxxxxx or an Affiliate) in the Company's Common Stock is 4% or less.
Upon the termination of this Agreement for any of the above reasons, the
certificates of stock held by each Stockholder shall be surrendered to the
Company, and the Company shall issue new certificates for the same number of
Shares but without the legend required by this Agreement.
ARTICLE IX
Legend On Share Certificates
Each of the certificates representing the Shares shall bear the following
legend:
"None of the Shares represented by this certificate may be sold, assigned,
transferred, pledged, hypothecated or in any other way disposed of or
encumbered, voluntarily or involuntarily, by gift, bankruptcy, operation of
law, winding up of a corporation or otherwise, except in accordance with
the provisions of a Stockholders Agreement, dated January 8, 1997, which is
also a voting agreement, a copy of which may be inspected at the principal
office of this Company. All of the provisions of such Stockholders'
Agreement are incorporated herein by this reference."
A copy of this Agreement shall be delivered to the Secretary of the Company and
shall be shown by him to any person making inquiry concerning it.
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ARTICLE X
General Provisions
10.1 Waiver. No waiver of any provision of this Agreement in any instance
shall be or for any purpose be deemed to be a waiver of the right of any party
hereto to enforce strict compliance with the provisions hereof in any subsequent
instance.
10.2 Agreement to Perform Necessary Acts. Each party hereto and the heirs,
executors or administrators of the Stockholders shall perform any further acts
and execute and deliver any documents or procure any court orders which may
reasonably be necessary to carry out the provisions of this Agreement.
10.3 Litigation and Attorneys' Fees. In the event of any litigation between
the parties hereto to enforce any provision or right hereunder, the unsuccessful
party to such litigation shall pay to the prevailing party therein all costs and
expenses actually incurred therein, including, but not limited to, reasonable
attorneys' fees actually incurred and court costs.
10.4 Modification. This Agreement may not be modified or amended except by
a writing signed by all of the Stockholders and by an officer duly authorized to
act on behalf of the Company. In the event of the amendment or modification of
this Agreement in accordance with its terms, the Stockholders shall cause the
Board of Directors to meet within 30 days following such amendment or
modification or as soon thereafter as is practicable for the purpose of adopting
any amendment to the Certificate of Incorporation and By-Laws of the Company
that may be required as a result of such amendment or modification to this
Agreement, and, if required, proposing such amendments to the Stockholders
entitled to vote thereon.
10.5 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered by
courier or other means of personal service, or if sent by telex or telecopy or
mailed first class, postage prepaid, by certified mail, return receipt
requested, addressed to:
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The Company:
Video City, Inc.
0000 XxXxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
With a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Xxxxxx:
Xxxxxx Entertainment Inc.
Xxx Xxxxxx Xxxxxxxxx
Xx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq., General Counsel
Telecopy No.: (000) 000-0000
Xxx:
Xxxxxx X. Xxx
Xxx Video City, Inc.
0000 XxXxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Xxxxxxx:
Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
All notices, requests and other communications shall be deemed received on the
date of actual receipt as evidenced by written receipt, acknowledgement or other
evidence of
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actual receipt. Any party may change its address for notices by notice to the
other parties as provided in this Article.
10.6 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original of the party
or parties who executed such counterpart but all of which together shall
constitute one and the same instrument.
10.7 Severability. Each provision and part thereof of this Agreement is
intended to be severable and if any term or all or part of any provision hereof
is held by judicial decision to be invalid, such invalidity shall not affect the
validity of the remainder of this Agreement.
10.8 Entire Agreement. This Agreement is intended by the parties hereto as
a final expression of their agreement and understanding with respect to the
subject matter hereof and as a complete and exclusive statement of the terms
thereof and supersedes any and all prior and contemporaneous agreements and
understandings, written or oral, express or implied.
10.9 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
10.10 Injunctive Relief. The parties acknowledge and agree that a violation
of any of the terms of this Agreement will cause the parties irreparable injury
for which adequate remedy at law is not available. Therefore, the parties agree
that each party shall be entitled to an injunction, restraining order or other
equitable relief from any court of competent jurisdiction, restraining any party
from committing any violations of the provisions of this Agreement.
10.11 Section Headings. The headings of the several sections of this
Agreement are inserted solely for convenience of reference and are not a part of
and are not intended to govern, limit or aid in the construction of any term or
provision hereof.
10.12 Construction. When necessary, the masculine shall include the
feminine or neuter and the singular shall include the plural and vice versa.
10.13 Binding Effect. Subject to the restrictions on Transfer contained
herein, this Agreement shall be binding on and shall inure to the benefit of,
the
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parties hereto and their respective heirs, legal representatives, successors
and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first hereinabove written.
THE COMPANY:
Video City, Inc., a
Delaware corporation
By:____________________________________
______
Name:__________________________________
______
Its:___________________________________
______
STOCKHOLDERS:
Xxxxxx Entertainment Inc., a Tennessee
corporation
By:____________________________________
______
Name:__________________________________
______
Its:___________________________________
______
_______________________________________
______
Xxxxxx X. Xxx
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_______________________________________
______
Xxxxxx X. Xxx, Trustee of the Xxxxxx X.
Xxx Revocable Living Trust UDT 1/9/91
_______________________________________
______
Xxxxx Xxxxxxx
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