COMPANY VOTING AGREEMENT
Exhibit
10.1
This
COMPANY VOTING AGREEMENT ("Agreement")
is
made as of December 16, 2005, between International Microcomputer Software,
Inc., a California corporation ("IMSI"),
Broadcaster, Inc., a Delaware corporation ("IMSI
Delaware"),
and
the undersigned stockholder ("Stockholder")
of
AccessMedia Networks, Inc., a Delaware corporation (the "Company").
RECITALS:
WHEREAS,
concurrently with the execution and delivery of this Agreement, IMSI,
Broadcaster, Inc., ACCM Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of IMSI ("Merger
Sub"),
and
the Company are entering into an Agreement of Plan of Merger of even date
herewith (the "Merger
Agreement"),
pursuant to which Merger Sub will be merged with and into the Company, and
the
Company will become a wholly owned subsidiary of IMSI Delaware (the
"Merger");
WHEREAS,
as of the date hereof, Stockholder is the Beneficial Owner (as defined below)
of
Subject Shares (as defined below); and
WHEREAS,
in order to induce IMSI, IMSI Delaware and Merger Sub to enter into the Merger
Agreement, Stockholder has agreed to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and of the covenants
and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties agree as follows:
| 1. |
Definitions.
|
(a) "Beneficially
Own"
or
"Beneficial
Owner"
with
respect to any securities means having "beneficial ownership" as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange
Act").
(b) "Company
Capital Stock"
means
shares of the Company’s common stock, no par value per share.
(c) "Company
Options and Other Rights"
means
options, warrants and other rights to acquire, directly or indirectly, shares
of
Company Capital Stock.
(d) "Expiration
Date"
means
the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement) and (ii) the date on which the Merger Agreement is terminated
pursuant to its terms; provided,
however,
that
the obligations of Stockholder under Sections 2(a)(iv) and (b) hereof shall
survive the Expiration Date until the earlier of (i) December 31, 2010 and
(ii)
the date on which the former stockholders of AccessMedia Beneficially Own a
majority of the outstanding shares of common stock of IMSI (the "Voting
Termination Date").
(e) "Subject
Shares"
means
(i) all shares of Company Capital Stock Beneficially Owned by Stockholder as
of
the date of this Agreement; (ii) all additional shares of Company Capital Stock
of which Stockholder acquires Beneficial Ownership during the period from the
date of this Agreement through the Expiration Date, and (iii) for purposes
of
Stockholder’s obligations under Sections 2(a)(iv) and (b) hereof, all shares of
capital stock of IMSI and IMSI Delaware Beneficially Owned by Stockholder at
each election of directors specified therein.
|
2.
|
Voting.
|
(a) Stockholder
hereby agrees that, prior to the Expiration Date (or, in the case of paragraph
(iv), prior to the Voting Termination Date), at any meeting of the stockholders
of the Company, IMSI or IMSI Delaware, however called, and in any written action
by consent of stockholders of the Company, IMSI or IMSI Delaware, unless
otherwise directed in writing by IMSI or IMSI Delaware, Stockholder shall cause
to be counted as present thereat for purposes of establishing a quorum and
shall
vote, or cause to be voted, any and all Subject Shares Beneficially Owned by
Stockholder as of the record date of such meeting or written
consent:
(i) in
favor
of the Merger, the execution and delivery by the Company of the Merger Agreement
and the adoption and approval of the Merger Agreement and the terms thereof,
in
favor of each of the other actions contemplated by the Merger Agreement and
in
favor of any action in furtherance of any of the foregoing;
(ii) against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement;
(iii) against
the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (A) any extraordinary corporate transaction, such
as a
merger, consolidation or other business combination involving the Company or
any
subsidiary of the Company; (B) any sale, lease, sublease, exclusive license,
sublicense or transfer of a material portion of the rights or other assets
of
the Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any subsidiary
of
the Company; (D) any amendment to the Company's articles of incorporation or
bylaws; and (E) any other action which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other transactions contemplated by the Merger
Agreement or this Agreement; and
(iv) with
respect to each election of directors of IMSI or IMSI Delaware following the
Closing Date until the Voting Termination Date, in favor of Xxxxxx Xxxx, III
and
each other individual nominated by IMSI or IMSI Delaware (subject to
Stockholder’s right to have certain individuals designated by the Stockholders’
Representative pursuant to the Merger Agreement).
(b) Stockholder
also agrees to vote all of his, her or its shares from time to time and at
all
times until the Voting Termination Date, in whatever manner as shall be
necessary to ensure that the director elected pursuant to Section 2(a)(iv)
of
this Agreement may not be removed from office (other than for cause) unless
(A)
such removal is directed or approved by IMSI or IMSI Delaware or (B) IMSI or
IMSI Delaware is no longer so entitled to designate or approve such director.
Stockholder agrees to execute any written consents required to effectuate the
obligations of this Agreement.
2
(c) Prior
to
the Expiration Date or the Voting Termination Date, as the case may be,
Stockholder shall not enter into any agreement or understanding with any Person
to vote or give instructions in any manner inconsistent with Section
2(a).
(d) Stockholder
hereby waives and agrees not to exercise any applicable "appraisal rights"
under
the Delaware General Corporations Law with respect to the Subject Shares in
connection with the Merger and the Merger Agreement.
| 3. |
Revocation
of Prior Proxies.
|
(a) Stockholder
hereby revokes any and all prior proxies or powers of attorney given by
Stockholder with respect to the voting of the Subject Shares and agrees not
to
grant any subsequent proxies or powers of attorney with respect to the voting
of
the Subject Shares until the Expiration Date.
(b) Stockholder
shall, at IMSI’s and IMSI Delaware's expense, perform such further acts and
execute such further documents and instruments as may reasonably be required
to
vest in IMSI and IMSI Delaware the power to carry out and give effect to the
provisions of this Agreement.
4. No
Restrictions on Transfer.
It is
understood and agreed that (i) this Agreement does not prohibit the Stockholder
from selling or otherwise transferring the Subject Shares, provided,
however,
that it
shall be a condition to any such sale or transfer of the Subject Shares prior
to
the Closing Date of the Merger that the transferee agrees to become a party
to
this Agreement, and (ii) the obligations under this Agreement following the
Closing Date of the Merger shall terminate with respect to any Subject Shares
that are sold or otherwise transferred by the Stockholder.
5. Covenants
of Stockholder.
The
Stockholder covenants and agrees for the benefit of IMSI and IMSI Delaware
that,
until the Expiration Date, Stockholder will not:
(a) sell,
transfer, pledge, hypothecate, encumber, assign, tender or otherwise dispose
of,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, hypothecation, encumbrance, assignment,
tender or other disposition of, (i) any Subject Shares or any interest therein,
or (ii) any Company Options and Other Rights or any interest therein;
provided,
however,
that
Stockholder may convert, exercise or exchange Company Options and Other Rights
into or for shares of Company Capital Stock in which event such shares of
Capital Stock shall become and be deemed Subject Shares subject to all the
terms
and conditions of this Agreement;
3
(b) grant
any
powers of attorney or proxies or consents in respect of any of the Subject
Shares, deposit any of such Subject Shares into a voting trust, or enter into
a
voting agreement with respect to any of such Subject Shares; and
(c) take
any
other action with respect to the Subject Shares that would in any way restrict,
limit or interfere with the performance of Stockholder's obligations hereunder
or the transactions contemplated hereby and the Merger Agreement.
6. Representations
and Warranties of Stockholder.
Stockholder represents and warrants to IMSI and IMSI Delaware as
follows:
(a) As
of the
date of this Agreement and at all times through the Expiration
Date:
(i) Stockholder
is and will be the Beneficial Owner (free and clear of any encumbrances or
restrictions) of the outstanding shares of Company Capital Stock set forth
under
the heading "Shares of Company Capital Stock Beneficially Owned", on the
signature page hereof.
(ii) Stockholder
is and will be the Beneficial Owner (free and clear of any encumbrances or
restrictions) of the outstanding Company Options and Other Rights set forth
under the heading "Company Options and Other Rights Beneficially Owned" on
the
signature page hereof (except to the extent that such Company Options and Other
Rights are converted into, exercised or exchanged for shares of Company Capital
Stock); and
(iii) Stockholder
does not directly or indirectly Beneficially Own any shares of Company Capital
Stock or Company Options or Other Rights or other securities of the Company,
other than the shares of Company Capital Stock and Company Options and Other
Rights set forth on the signature page hereof.
(b) Stockholder
has and will have the legal capacity, power and authority to enter into and
perform all of Stockholder's obligations under this Agreement. This Agreement
has been duly executed and delivered by Stockholder and, if Stockholder is
a
corporation or partnership, has been duly authorized by all requisite corporate
or partnership action of Stockholder, as the case may be, and upon its execution
and delivery by IMSI and IMSI Delaware, will constitute a legal, valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors rights generally, and the availability of injunctive
relief and other equitable remedies.
(c) The
execution, delivery and performance by Stockholder of this Agreement will not
(i) conflict with, require a consent, waiver or approval under, or result in
a
breach of or default under, any of the terms of any contract, commitment or
other obligation (written or oral) to which Stockholder is a party or by which
any of Stockholder's assets may be bound, and, if Stockholder is a corporation
or partnership, the organizational documents of Stockholder, or (ii) violate
any
order, writ injunction, decree, judgment, order, statute, rule or regulation
applicable to Stockholder or any of its assets.
4
(d) No
filing
with, and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by
Stockholder and the consummation by Stockholder of the transactions contemplated
hereby.
7. Adjustments;
Additional Shares.
In the
event (a) of any stock dividend, stock split, merger, recapitalization,
reclassification, combination, exchange of shares or the like of the capital
stock of the Company on, of or affecting the Subject Shares or (b) that
Stockholder shall become the Beneficial Owner of any additional shares of
Company Capital Stock or other securities entitling the holder thereof to vote
or give consent with respect to the matters set forth in Section 2(a), then
the
terms of this Agreement shall apply to the shares of Company Capital Stock
or
other instruments or documents held by Stockholder immediately following the
effectiveness of the events described in clause (a) or Stockholder becoming
the
Beneficial Owner thereof as described in clause (b), as though, in either case,
they were Subject Shares hereunder.
8. Amendments
and Waivers.
Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective. No failure or delay by any party in
exercising any right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. To
the
maximum extent permitted by Law, (a) no waiver that may be given by a party
shall be applicable except in the specific instance for which it was given
and
(b) no notice to or demand on one party shall be deemed to be a waiver of any
obligation of such party or the right of the party giving such notice or demand
to take further action without notice or demand.
9. Assignment.
This
Agreement may not be assigned by either party hereto without the prior written
consent of the other party. Subject to the foregoing, all of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective executors, heirs, personal
representatives, successors and assigns.
10. Entire
Agreement.
This
Agreement and the documents, instruments and other agreements specifically
referred to herein or delivered pursuant hereto, set forth the entire
understanding of the parties with respect to the subject matter hereof. Any
and
all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded
by
this Agreement.
5
11. Notices.
Any
notice, request, demand, waiver, consent, approval or other communication which
is required or permitted hereunder shall be in writing and shall be deemed
given
(a) on the date established by the sender as having been delivered personally;
(b) on the date delivered by a private courier as established by the sender
by
evidence obtained from the courier; (c) on the date sent by facsimile, with
confirmation of transmission, if sent during normal business hours of the
recipient, if not, then on the next business day; or (d) on the fifth day after
the date mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications, to be valid, must be addressed as
follows:
If
to
IMSI or IMSI Delaware, to:
International
Microcomputer Software,
Inc.
00
Xxxxxxx Xxx
Xxxxxx,
XX 00000
Attn:
Xxxxxx Xxxx III, Chief Executive
Officer
Facsimile:
(000) 000-0000
With
a
required copy to:
Xxxxxx,
Xxxxx & Xxxxxxx, LLP
2
Palo Alto Square
0000
Xx Xxxxxx Xxxx, Xxxxx 000
Attn:
Xxx Xxxxxxxxx
Facsimile:
(000) 000-0000
If
to
Stockholder:
_________________________
_________________________
_________________________
Attn:_____________________
Facsimile:_________________
With
a
required copy to:
_________________________
_________________________
_________________________
Attn:_____________________
Facsimile:_________________
6
or
to
such other address or to the attention of such Person or Persons as the
recipient party has specified by prior written notice to the sending party
(or
in the case of counsel, to such other readily ascertainable business address
as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
12. Captions.
All
captions contained in this Agreement are for convenience of reference only,
do
not form a part of this Agreement and shall not affect in any way the meaning
or
interpretation of this Agreement.
13. Counterparts.
This
Agreement may be executed in counterparts, and either party may execute such
counterpart, both of which when executed and delivered shall be deemed to be
an
original and which counterparts taken together shall constitute but one and
the
same instrument.
14. Severability;
Enforcement.
Any
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
15. Specific
Performance.
Stockholder acknowledges that the agreements contained in this Agreement are
an
integral part of the transactions contemplated by the Merger Agreement, and
that, without these agreements, IMSI and IMSI Delaware would not enter into
the
Merger Agreement, and acknowledges that damages would be an inadequate remedy
for any breach by Stockholder of the provisions of this Agreement. Accordingly,
Stockholder agrees that Stockholder's obligations hereunder shall be
specifically enforceable and Stockholder shall not take any action to impede
the
other from seeking to enforce such right of specific performance.
16. Governing
Law.
This
Agreement shall be governed by and interpreted and enforced in accordance with
the Laws of the State of California, without giving effect to any choice of
Law
or conflict of Laws rules or provisions (whether of the State of California
or
any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of California. Each party irrevocably submits
to the exclusive jurisdiction of (a) California, and (b) the United States
District Court for the Northern District of California, for the purposes of
any
Action arising out of this Agreement or any transaction contemplated hereby.
Each party agrees to commence any such Action either in the United States
District Court for the Northern District of California or if such Action may
not
be brought in such court for jurisdictional reasons, in the Superior Court
of
the State of California, Santa Xxxxx County. Each party further agrees that
service of any process, summons, notice or document by U.S. registered mail
to
such party's respective address set forth above shall be effective service
of
process for any Action in California with respect to any matters to which it
has
submitted to jurisdiction in this Section 15. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any Action
arising out of this Agreement or the transactions contemplated hereby in (i)
the
United States District Court for the Northern District of California, or (ii)
the Superior Court of the State of California Santa Xxxxx County, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such Action brought in any such court has been
brought in an inconvenient forum.
[Signature
Page To Follow]
7
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
all
as of the day and year first above written.
INTERNATIONAL
MICROCOMPUTER
SOFTWARE,
INC.
By:
_____________________________
Name:
Title:
BROADCASTER,
INC.
By:
_____________________________
Name:
Title:
ACCM
ACQUISITION CORP.
By:
_____________________________
Name:
Title:
| If stockholder is a natural person |
STOCKHOLDER
|
______________________________
(Signature)
______________________________
Print
Name
| If stockholder is a business or other entity |
STOCKHOLDER
|
___________________________
Name
By:
_____________________________
Name:
Title:
| Number and class of shares of Capital Stock: |
|
| Number of Company Options and Other Rights: |
|
