EXHIBIT 10.1
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
August 31, 2001, by and between SimEx Inc., an Ontario corporation ("SIMEX"),
and the undersigned shareholder ("SHAREHOLDER") of Iwerks Entertainment, Inc., a
Delaware corporation (the "COMPANY").
RECITALS
WHEREAS, concurrent with the execution of this Agreement, SimEx, SimEx
Acquisition Co., a Delaware corporation and the Company are entering into an
Agreement and Plan of Merger (the "Merger Agreement"), which provides for the
acquisition by SimEx of the Company, subject to certain conditions, through a
reverse triangular merger whereby holders of the outstanding shares of common
stock of the Company (and securities convertible into such shares) will be
entitled to receive their pro rata portion of the purchase price (the
"TRANSACTION"); and
WHEREAS, Shareholder is the beneficial holder of the Shares (as defined
below) indicated on the signature page of this Agreement; and
WHEREAS, SimEx and Shareholder wish to provide for the voting of the Shares
beneficially held by Shareholder with respect to the approval of the Merger
Agreement and the transactions contemplated thereby.
NOW, THEREFORE, as an inducement to SimEx to enter into the Merger
Agreement and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto), and
intending to be legally bound hereby, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
1.1 "EXPIRATION DATE" shall mean the earlier to occur of (i) the
termination of the Merger Agreement in accordance with its terms and (ii) the
effective time of the Transaction.
1.2 "PERSON" shall mean any individual, corporation, limited liability
company, partnership, trust or other entity or governmental authority.
1.3 "SHARES" shall mean: (i) all equity securities of the Company
(including all shares of common stock or preferred stock, and all options,
warrants and other rights to acquire shares of common stock or preferred stock)
beneficially owned by Shareholder as of the date of this Agreement; and (ii) all
additional equity securities of the Company (including all additional shares of
common stock or preferred stock, and all additional options, warrants and other
rights to acquire shares of common stock or preferred stock) which Shareholder
acquires beneficial ownership of during the period from the date of this
Agreement through the Expiration Date.
1.4 A Person shall be deemed to have effected a "TRANSFER" of a security if
such person directly or indirectly: (i) sells, assigns, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
providing for the sale of, assignment of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. TRANSFER AND VOTING OF SHARES.
2.1 TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. Shareholder agrees
that, during the period from the date of this Agreement through the Expiration
Date, Shareholder shall not direct, cause or permit any Transfer of any of the
Shares to be effected unless the proposed transferee agrees to be bound to the
terms hereof and executes a voting agreement to that effect.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the period
from the date of this Agreement through the Expiration Date, Shareholder 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 in contravention
of the obligations of Shareholder under this Agreement with respect to any of
the Shares.
3. AGREEMENT TO VOTE SHARES. Shareholder agrees that, during the period
from the date of this Agreement through the Expiration Date, at every meeting of
the shareholders of the Company called, and at every adjournment thereof, and on
every action or approval by written consent of the shareholders of the Company,
all the Shares beneficially owned by Shareholder on the date hereof, and all
additional Shares that Shareholder acquires after the date hereof, shall be
voted in favor of the approval of the Merger Agreement and the transactions
contemplated thereby and in favor of any matter that could reasonably be
expected to facilitate the Transaction (to the extent that such Shares have a
right to vote thereon).
4. SHAREHOLDER CAPACITY. SimEx acknowledges and agrees that Shareholder
executes and delivers this Agreement solely in his capacity as the record holder
and beneficial owner of his Shares and no provision of this Agreement shall
limit or otherwise restrict Shareholder with respect to any act or omission that
Shareholder may undertake or authorize in his capacity as an officer of the
Company or a member of the Board of Directors of the Company, including, without
limitation, any vote that Shareholder may make in his capacity as a director of
the Company with respect to any matter presented to the Board of Directors of
the Company.
5. IRREVOCABLE PROXY. Concurrently with the execution of this Agreement,
Shareholder shall deliver to SimEx an originally executed proxy in the form
attached hereto as SCHEDULE A (the "PROXY"), which shall be coupled with an
interest and shall therefore be
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irrevocable to the fullest extent permissible by law, with respect to the Shares
referred to therein. Shareholder agrees that to the extent Shareholder acquires
Shares after the date hereof and prior to the Expiration Date, Shareholder shall
deliver to SimEx an originally executed Proxy with respect to such Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder: (i) is
the beneficial owner of the shares of common stock and preferred stock and the
options, warrants and rights to acquire shares of common stock and preferred
stock indicated on the signature page of this Agreement, free and clear of any
liens, claims, options, rights of first refusal, co-sale rights, charges or
other encumbrances; (ii) does not beneficially own any securities of the Company
other than the securities indicated on the signature page of this Agreement; and
(iii) has full power and authority to make, enter into, and carry out the terms
of this Agreement and the Proxy.
7. ADDITIONAL DOCUMENTS. Shareholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of SimEx, to carry out the intent of this Agreement.
8. CONSENT AND WAIVER. Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Transaction under the
terms of any agreements to which Shareholder is a party or pursuant to any
rights Shareholder may have.
9. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
10. MISCELLANEOUS.
10.1 INVALIDITY OF PROVISIONS. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part hereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof. To the extent permitted by applicable law, the parties hereto
waive any provision of law which renders any provision of this Agreement invalid
or unenforceable in any respect. The parties shall endeavor in good faith
negotiations to replace any provision that is declared invalid or unenforceable
with a valid and enforceable provision, the effect of which comes as close as
possible to that of the invalid or unenforceable provision that it replaces.
10.2 BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other.
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10.3 AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
10.4 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that SimEx will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to SimEx upon any such violation, SimEx
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to SimEx at law
or in equity.
10.5 NOTICES. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given only if
delivered personally against written receipt, or telecopied with answer back
confirmation, or mailed (postage prepaid by registered mail, return receipt
requested), or sent by overnight courier, to the parties at the following
addresses or facsimile numbers:
If to SimEx:
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: President
with a copy to:
Torys
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
If to Shareholder:
At the address and fax number specified on
the signature page of this Agreement
All such notices, requests and other communications shall (i) if delivered
personally, telecopied or couriered, be deemed given upon delivery and (ii) if
mailed, be deemed given seven days after mailing (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time
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may change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other
parties hereto.
10.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
10.7 CONSENT TO JURISDICTION. Each of the parties hereto irrevocably and
unconditionally submits to the exclusive jurisdiction of (i) any Delaware State
court and (ii) any Federal court of the United States of America sitting in the
State of Delaware, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby (and each
agrees that no such action, suit or proceeding relating to this Agreement shall
be brought by it or any of its affiliates except in such courts). Each of the
parties hereto further agrees that, to the fullest extent permitted by
applicable law, service of any process, summons, notice or document by
registered mail to such persons respective address set forth above shall be
effective service of process for any action, suit or proceeding in Delaware with
respect to any matters to which it has submitted to jurisdiction as set forth in
the immediately preceding sentence. Each of the parties hereto irrevocably and
unconditionally waives (and agrees not to plead or claim) any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (i) any Delaware State court or (ii)
any Federal court of the United States of America sitting in the State of
Delaware, or that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
10.8 ENTIRE AGREEMENT. This Agreement and the Proxy contain the entire
understanding of the parties hereto in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
10.9 INTERPRETATION.
10.9.1 The headings used in this Agreement are for convenience only and are
not to be considered in construing or interpreting this Agreement.
10.9.2 Unless the context otherwise requires, words importing the singular
include the plural and vice versa, and words importing gender include all
genders.
10.9.3 "including" means "including, without limitation,".
10.10 COUNTERPARTS. This Agreement may be executed by facsimile signature
and in several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
SIMEX, INC.
By:
------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxxx [Shareholder - Print Name]
Title: President
By: ________________________________
Name: ______________________________
Address: ___________________________
Shares beneficially owned:
o ____________ shares of common
stock, including the right
attached to each such share
entitling the holder to
purchase 1/100th of a share of
Series A preferred stock (the
"RIGHTS").
o ___________ shares of preferred
stock.
o ___________ shares of common
stock issuable upon exercise of
outstanding options, warrants or
other rights.
o shares of preferred stock
issuable upon exercise of
outstanding options, warrants or
other rights (excluding the
Rights).
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SCHEDULE A
IRREVOCABLE PROXY
The undersigned shareholder of Iwerks Entertainment, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints XXXXXXX XXXXXXX and/or XXXXXX XXXX of SimEx Inc., an Ontario
corporation ("SIMEX"), and each of them, as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to vote and exercise all voting rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the outstanding shares of capital
stock of the Company that are owned of record by the undersigned as of the date
of this Proxy (collectively, the "SHARES") in accordance with the terms of this
Proxy. The Shares owned of record by the undersigned shareholder as of the date
of this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the voting rights granted by this Proxy
until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest in the Company and is granted pursuant to that certain
Voting Agreement of even date herewith by and between SimEx and the undersigned
shareholder and as an inducement to SimEx to enter into the Agreement and Plan
of Merger between SimEx, SimEx Acquisition Co., a Delaware corporation, and the
Company dated of even date herewith (the "Merger Agreement") which provides for
the acquisition by SimEx of the Company, subject to certain conditions, through
a reverse triangular merger whereby holders of the outstanding shares of common
stock of the Company (and securities convertible into such shares) will be
entitled to receive their pro rata portion of the purchase price (the
"TRANSACTION"). As used herein, the term "EXPIRATION DATE" shall mean the
earlier to occur of (i) the termination of the Merger Agreement in accordance
with its terms and (ii) the effective time of the Transaction.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of shareholders
of the Company and in every written consent in lieu of such meeting in favor of
approval of the principal terms of the Transaction, the execution and delivery
by the Company of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Merger Agreement and any action required in furtherance hereof and thereof.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned shareholder may vote the
Shares on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
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Dated: August 31, 2001
------------------------------------
[Shareholder - Print Name]
By: ________________________________
Name: ______________________________
Address: ___________________________
Shares beneficially owned:
o ____________ shares of common
stock, including the right
attached to each such share
entitling the holder to
purchase 1/100th of a share of
Series A preferred stock (the
"RIGHTS").
o ___________ shares of preferred
stock.
o ___________ shares of common
stock issuable upon exercise of
outstanding options, warrants or
other rights.
o shares of preferred stock
issuable upon exercise of
outstanding options, warrants or
other rights (excluding the
Rights).