[EXHIBIT 10.1.9]
FILM AND MUSIC ENTERTAINMENT, INC.
FAME/XXXX XXXX VOTING TRUST #3 AGREEMENT
THIS AGREEMENT dated as of October 31, 2003 by and entered
into among Film and Music Entertainment, Inc., ("FAME") a Nevada
corporation (herein called the "Grantor"), Xxxxx Xxxxxx, with a
principal place of business at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, XXX, (herein called the
"Trustee") and Xxxx Xxxx (herein called the "Beneficiary");
WITNESSETH:
1. Transfer in Trust. The Grantor and the Beneficiary hereby
transfer to the Trustee and the Trustee acknowledges receipt, in
trust, of all right, title and interest in and to Options
exercisable at the price of One Cent ($0.01) per share, in the
aggregate of Twenty Five Million (25,000,000) shares of the
Common Stock, par value $.001 per share and/or options to
purchase such shares of the Grantor (the "Trust Shares" or
"Beneficiary Shares"). The Beneficiary Shares deposited by the
Beneficiary will be evidenced by duly executed certificates for
such shares, accompanied with stock powers executed in favor of
the Trustee. Beneficiary shall furnish the Trustee with his/her
address and taxpayer identification number, all of which it shall
be the obligation of the Beneficiary to keep current with the
Trustee. The trustee shall furnish Beneficiary with a receipt for
such Beneficiary Shares together with a true, correct and
complete copy of this Trust Agreement executed by all parties.
Beneficiary shall furnish the Trustee with such additional
information with respect to Beneficiary and his/her Beneficiary
Shares and such other matters as The Trustee may reasonably
request in connection with its duties hereunder. The Grantor and
Beneficiary hereby agree that, should such Beneficiary acquire or
be entitled to any additional shares, options, warrants or other
rights to acquire equity securities of the Grantor or any
subsidiary or affiliate of the Grantor during the term of this
Agreement, such shares or rights shall be automatically
transferred to the Trustee in trust as set forth above to be held
pursuant to the terms of this Agreement. All such present or
future transferred shares or rights are included within the
meaning of the "Trust Shares". Beneficiary hereby specifically
instructs the transfer agent and registrar of such shares or
rights to register all certificates or other evidence of
ownership of Trust Shares into the name of the Trustee under this
Agreement, with full powers of ownership and transfer subject to
this Agreement.
2. Custody. Transfers. The Trustee agrees to hold the Trust
Shares in the name of "Xxxxx Xxxxxx, Trustee u/t/d October 31 I
2003," All Trust Shares shall be held in custody in account or
accounts with a NASD registered broker dealer firm or similar
custodian and copies of the monthly account statements shall be
provided to the Grantor and each Beneficiary. Certificates
or other documents evidencing Trust Shares shall bear a
restrictive legend stating that they may not be sold or
transferred except pursuant to an effective registration
statement under the Securities Act of 1933 or an opinion of
counsel acceptable to the Grantor that such registration is not
required. No purchases or acquisitions of shares of the Grantor
(by exercise of options or warrants or otherwise) or purchases or
sales or transfers of Trust Shares, including transfers pursuant
to Section 3, shall be made by the Trustee on behalf of the trust
without a prior written Letter of Direction
or other documentation signed by both the Grantor and (in the
case of Beneficiary Shares being acquired, sold or transferred)
the Beneficiary involved. The Trustee shall be protected and held
harmless in relying upon such documentation.
3. "Drip Out." On and after the date hereof, upon the
Distribution Schedule set forth below, the Grantor and the
Beneficiary hereby authorize and instruct the Trustee to release
from the corpus of the Trust and transfer to the Beneficiary
and/or his/her designated assigns the stated number of Options
of Beneficiary Shares owned by the Beneficiary set forth in
the Distribution Schedule, and such transferred Options of
Beneficiary Shares shall thereafter be free from the
restrictions imposed by this Agreement.
Distribution Schedule
---------------------
RELEASE DATE AMOUNT RELEASED
May 1, 2004 3,125,000
November 1, 2004 3,125,000
May 1, 2005 3,125,000
November 1, 200S 3,125,000
May 1, 2006 3,125,000
November 1, 2006 3,125,000
May l, 2007 3,125,000
November 1, 2007
(or "Termination Date") Balance remaining
Unless the Beneficiary has previously provided the Trustee with a
Letter of Direction to the contrary, all distributions of
Beneficiary Shares or funds by the Trustee to the Beneficiary
under this Agreement shall be made only to, and in the name of,
the Beneficiary and to the address of the Beneficiary as set
forth above.
4. Vesting and Other Special Restrictions. The Grantor and
the Beneficiary may by a Letter of Direction issued pursuant to a
Restricted Stock Purchase Agreement, a Stock Option Agreement, or
otherwise, require the Trustee to hold Beneficiary Shares of the
Beneficiary in trust subject to such other and further vesting or
other special restrictions as shall be set forth in such Letter
of Direction, provided that the Trustee shall not be required to
hold such Beneficiary Shares in this trust beyond the Termination
Date.
5. Voting. The Trust Shares shall be voted by the Trustee on
behalf of the beneficiary at all meetings of or at all other
occasions requiring votes or consents of shareholders of the
Grantor for the election of Directors and on other corporate
matters in cases where action or consent of shareholders is
required by law or called for by the Grantor on any matter, the
Trustee shall vote the Beneficiary Shares allocated to the
Beneficiary on that matter as directed by the Beneficiary .In
the absence of any such direction, the Trustee shall not vote
those Beneficiary Shares. The Trustee agrees immediately to
forward to the Beneficiary a copy of any notice, proxy
statement, report, announcement of other communication received
by it in the capacity of a shareholder of [he Grantor and to use
diligent efforts to ascertain the position of the Beneficiary on
each matter to be voted upon.
6. Dividends; Distributions. Any cash dividends or other
distributions in cash received by the Trustee on Trust Shares
shall be distributed by the Trustee to the Beneficiary in the
same proportion as the number of Beneficiary Shares owned by
such Beneficiary bears to the total number of Trust Shares held
by the Trustee upon which the dividend or other distribution is
made. Stock dividends or other distributions "in kind" shall be
held by the Trustee as Trust Shares and shall thereafter be
distributed to the Beneficiary as Beneficiary Shares in
accordance with the Distribution Schedule.
7. Term; Termination. This Agreement shall expire by its
terms on October 31, 2007 (the "Termination Date"). The
Termination Date may be changed by a signed consent of the
Grantor and the Beneficiary directed to the Trustee. On and after
the Termination Date the Trustee shall promptly distribute to the
Beneficiary the balance, if any, of the Beneficiary's Beneficiary
Shares remaining in the corpus of the Trust plus any dividends or
distributions on the Beneficiary Shares not previously made to
such Beneficiary .Distributions shall be made in the manner set
forth above in Section 3
8. Fees. The initial acceptance fee of the Trustee is
$500.00 and the annual fee of the Trustee hereunder is $100.00,
which fees shall be nonrefundable and payable in advance by the
Grantor. The Grantor also agrees to pay on demand The Trustee's
costs, and expenses, including fees and expenses of counsel to
The Trustee, incurred in connection with its duties hereunder.
The Trustee shall have a lien or right of set-off on all funds
held hereunder to pay all of its expenses under this Agreement.
9. Resignation or Removal. The Trustee may resign as
Trustee hereunder at any time by giving thirty (30) days' prior
written notice of such intention, subject to the appointment and
taking office of a successor Trustee. In the event the Trustee
shall become incapacitated through death, bankruptcy or judicial
determination of incompetency or criminal or civil sanction the
Grantor shall appoint a substitute Trustee. In the event that
the Grantor does not appoint a successor Trustee within fifteen
(15) days of notice of the Trustee's intention to resign or of
the date of such judicial determination, the Trustee may appoint
as its successor any trust company having an office in Los
Angeles County, State of California, United States of America.
Upon the effective date of resignation and/or appointment, the
Trustee or his/her legal representative will deliver all
securities and funds held hereunder to such successor Trustee
who has agreed in writing to serve, as directed by written
instructions of the Grantor. After the effective date of his
resignation, The Trustee shall have no duty with respect to the
corpus of the trust except to hold such property in safekeeping
and to deliver same to its successor as directed in writing by
the Grantor.
10. Trustee Protection. The Trustee shall have no
obligation hereunder except to receive the contributions
of Trust Shares or funds referred to herein and to make
..transfers or distributions of said Trust Shares and funds
in accordance with the provisions hereof. The Trustee
shall be protected and held harmless in acting upon any
written notice,
certificate, waiver, consent or other instrument or document
which he believes to be genuine. The Trustee shall not be liable
for any error of judgment or for any act or omission other than
his own gross negligence or willful misconduct. In no event
shall the Trustee be required to account for any funds or
securities subsequent to the distribution thereof in accordance
with this Agreement. The Trustee's duties shall be determined
only with reference to this Agreement and applicable laws. The
Trustee is not charged with knowledge of or any duties or
responsibilities in connection with any other document or
agreement. The Grantor and the Beneficiary represents and
warrants to the Trustee that each of them has the full and
complete power to transfer the Trust Shares in trust to the
Trustee, that there are no claims or encumbrances on any of the
Trust Shares and that none of them shall have any claim against
the Trustee pertaining to the appropriateness or the prudence of
any manner of holding or in vesting any securities or funds
under this agreement. Beneficiary understands that (i) The
Trustee is acting solely as Trustee pursuant to the terms of
this Agreement, (ii) the Trust Shares will be received and held
in trust by the Trustee for the benefit of the Beneficiary, to
be used for those purposes set forth in this Agreement and (iii)
no Beneficiary may construe the contents of any oral or written
communication with the Trustee or the Grantor as legal, tax or
investment advice. The Grantor and the Beneficiary shall
indemnify and hold harmless the Trustee from and against all
loss, liability, claim or expense to which the Trustee may
become subject, including reasonable attorneys fees, arising out
of or connected with the performance by the Trustee of the
duties set forth In this Agreement, except for claims arising
from the Trustee's failure to abide by the terms of this
Agreement.
11. Action by Trustee. Any action to be taken by the
Trustee on behalf of a Beneficiary hereunder shall be evidenced
by a Letter of Direction or other agreement or current signed by
the Beneficiary (or his or her estate or legal representative
together with evidence of authority). No such action or
directive of the Beneficiary to the Trustee shall be valid
unless so executed and delivered.
12. Counsel. The Trustee may consult with and obtain advice
from legal counsel in the event of any dispute or question as to
the construction of any of the provisions herein or its duties
hereunder and shall incur no liability and shall be fully
protected and held harmless in acting in accordance with the
opinion of such counsel.
13. Interpleader. In the event that The Trustee should at
any time be confronted with inconsistent claims or demands by
the parties hereto, The Trustee shall have the right to
interplead said parties in an arbitration or in any court of
competent jurisdiction and request that such arbitrator or court
determine such respective rights of the parties with respect to
the corpus of the trust. Upon doing so, the Trustee
automatically shall be released from any obligations or
liability as a consequence of any such claims or demands.
14. Notice. Any notice permitted or required hereunder
shall be deemed to have been duly given if delivered personally,
by facsimile transmission, or if mailed certified or registered
parties at their address set forth below or to such address as
they may hereunder designate:
If to the Trustee:
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
4
Xxx Xxxxxxx, Xxxxxxxxxx 00000 XXX
If to the Grantor:
FAME, Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000 Xxxxxxx Xxxx, XX 00000 XXX
Attention: Chairman of the Board
with a copy to
Xxxxxx Xxx
Alexander, Xxx, Xxxxxxxx & Xxxxxx, LLP 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 0000 Xxxxxxx Xxxx, XX 00000 XXX
If to the Beneficiary:
This Agreement shall be binding upon and inure to the
benefit of the respective Successors and assigns of the parties
hereto.
This Agreement may be executed in one or more counterparts,
each of which constitute the original, and all of which
collectively shall constitute one and the same instrument.
15. Miscellaneous.
(1) The Trustee may execute any of its powers or
responsibilities hereunder and exercise any rights
hereunder either directly or through its agents or
attorneys. Nothing in this Agreement shall be deemed to
impose upon The Trustee any duty to qualify to do business
or to act as fiduciary or otherwise in any jurisdiction
other than the State of California. The Trustee shall not
be responsible for and shall not be under a duty to
examine into or pass upon the validity, binding effect,
execution or sufficiency of this Agreement or of any
subsequent amendment of supplement hereto or of any Letter
of Direction or other document instructing him to act.
(b) This Agreement shall bind the successors and
assigns of the parties. Should any provision of this Agreement be
found unenforceable by judicial determination it shall not
thereby invalidate the rest of the Agreement.
(c) The interpretation of this Agreement and the rights
created thereby, shall be governed by the laws of the State of
California. Any disputes arising hereunder shall be first
submitted for mediation and, if this fails shall be submitted to
binding arbitration under the Commercial Arbitration Rules of the
American Arbitration Association at a location in Xxx Xxxxxxx
Xxxxxx , Xxxxxxxxxx, Xxxxxx Xxxxxx of America.
5
(d) Where the context allows words importing only the
masculine gender shall include the feminine gender and vice versa
and words importing only the singular shall
include the plural and vice versa.
(e) This agreement shall be binding upon the successors and
assigns of the parties.
(f) No modification of this Agreement shall be of any
effect unless in writing and signed by the Grantor, the Trustee and
the Beneficiary.
IN WITNESS WHEREOF, each of the undersigned has hereunto set
his/her hand pursuant to due authority, as of the date first set
forth above:
GRANTOR:
FAME,
/s/[Illegible]
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxxx Xxxx
Xxxx Xxxx
AMENDMENT TO FAME/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxxxxx Xxxxx hereby agrees to be bound by the
terms and conditions as a designated beneficiary of that certain
FAME/ Management Voting Trust dated 10/31/03 as a recipient of
Options exercisable at the price of One Cent ($0.01), in the
aggregate of Five Hundred Thousand Shares of the
Common Stock of the Company at a par value of $.001 per share on the
following distribution schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set his/her
hand pursuant to due authority, as of the date set forth above:
GRANTOR: (FAME)
By: /s/[Illegible]
--------------------------
Its: Chairman
-------------------------
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY
/s/Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
AMENDMENT TO FAME/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxxxxxx Xxxxxx hereby agrees to be bound by
the terms and conditions as a designated beneficiary of that
certain FAME/ Management Voting Trust dated 10/31/03 as a
recipient of Options exercisable at the price of One Cent
($0.01), in the aggregate of Five Hundred Thousand Shares of the
Common Stock of the Company at a par value of $.001 per share on
the following distribution schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set
his/her hand pursuant to due authority, as of the date set forth
above:
GRANTOR: (FAME)
By: /s/[Illegible]
--------------------------
Its: Chairman
-------------------------
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
AMENDMENT TO FAME/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxx Xxxxx hereby agrees to be bound by the terms and
conditions as a designated beneficiary of that certain FAME/ Management
Voting T rust dated 10/31/03 as a recipient of Options exercisable at the
price of One Cent ($0.01), in the aggregate of Five Hundred Thousand Shares
of the Common Stock of the Company at a par value of $.001 per share on the
following distribution schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set his/her hand
pursuant to due authority, as of the date set forth above:
GRANTOR: (FAME)
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxx Xxxxx
----------------------------
Xxx Xxxxx
AMENDMENT TO FA~E/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxxxx Xxxx hereby agrees to be bound by the
terms and conditions as a designated beneficiary of that
certain FAME/ Management Voting Trust dated 10/31/03 as a
recipient of Options exercisable at the price of One Cent
($0.01 ), in the aggregate of Five Hundred Thousand Shares of
the Common Stock of the Company at a par value of $.001 per
share on the following distribution schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set
his/her hand pursuant to due authority, as of the date set
forth above:
GRANTOR: (FAME)
By: /s/[Illegible]
--------------------------
Its: Chairman
-------------------------
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxxxx Xxxx
-----------------------------
Xxxxx Xxxx
AMENDMENT TO FAME/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxxxxxxx X. Xxxxxx hereby agrees to be bound
by the terms and conditions as a designated beneficiary of that
certain FAME/ Management Voting Trust dated 10/31/03 as a
recipient of Options exercisable at the price of One Cent ($0.01
), in the aggregate of One Million Six Hundred Thousand Shares of
the Common Stock of the Company at a par value of $.001 per share
on the following distribution schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set
his/her hand pursuant to due authority, as of the date set forth
above:
GRANTOR: (FAME)
By: /s/[Illegible]
--------------------------
Its: Chairman
-------------------------
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxxx X. Xxxxxx
AMENDMENT TO FAME/MANAGEMENT VOTING TRUST DATED 10/31/03
By signature below Xxxxx Xxxxx hereby agrees to be bound by the
terms and conditions as a designated beneficiary of that certain
FAME/ Management Voting Trust dated 10/31/03 as a recipient of
Options exercisable at the price of One Cent ($0.01), in the
aggregate of Five Million Shares of the Common Stock of the Company
at a par value of $.001 per share on the following distribution
schedule:
RELEASE DATE AMOUNT RELEASED
May 1, 2004 62,500
November 1, 2004 62,500
May 1, 2005 62,500
November 1, 2005 62,500
May l, 2006 62,500
November 1,2006 62,500
May l, 2007 62,500
November 1, 2007
(or "Termination Date") Balance Remaining
IN WITNESS WHEREOF, each of the undersigned has hereto set his/her
hand pursuant to due authority, as of the date set forth above:
GRANTOR: (FAME)
By: /s/[Illegible]
--------------------------
Its: Chairman
-------------------------
TRUSTEE:
Xxxxx Xxxxxx
BENEFICIARY:
/s/Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
