Shareholders Voting Agreement
This Shareholders Voting Agreement ("Agreement"), dated as of March 27,
1997, by and between Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx (collectively, "Viner") on
the one hand and Media Equities International, LLC, a New York limited liability
company ("MEI"), with its principal office at 0 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, on the other hand.
WHEREAS, on March 27, 1997, MEI, Viner and Dove Entertainment, Inc. a
California corporation ("Dove"), executed and delivered a stock purchase
agreement (the "Stock Purchase Agreement") pursuant to which MEI agreed to
acquire from Dove 4,000 shares (the "MEI Purchase Shares") of newly issued Dove
Series B Preferred Stock and an option to purchase up to 2.0 million shares of
Common Stock, subject to anti-dilution adjustment (the "MEI Option Shares") and
Viner agreed to acquire from Dove 2,000 shares (the "Viner Purchase Shares") of
newly issued Dove Series C Preferred Stock and an option to purchase up to 1.0
million shares of Common Stock , subject to anti-dilution adjustment (the "Viner
Option Shares") and to amend the terms of Dove's Series A Preferred Stock (all
of such Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock, collectively, the "Purchase Shares;" and all of such MEI Option
Shares and Viner Option Shares, the "Option Shares"); and
WHEREAS, Viner is the beneficial owner of, and has the power to vote
directly or indirectly, approximately 1,525,811 currently outstanding shares of
Common Stock;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
Section 1. Election of Directors.
In the event that MEI shall be entitled to have representation on the
Company's Board of Directors pursuant to Section 6.3(b) or 7.2 of the Stock
Purchase Agreement, at MEI's request, Viner shall, and shall use his reasonable
best efforts to cause each of his affiliates to, vote all of the voting
securities of Dove beneficially owned thereby and entitled to vote thereon for
the election of the requisite number of director designees of MEI then required
by such Section 6.3(b) or 7.2. In addition, Viner shall use their reasonable
efforts to take all steps necessary to cause the election of such designees,
including seeking the resignation of current directors of the Company; however
nothing herein shall require Viner to take or fail to take any action which
would, as a matter of law, have a reasonable probability of causing a breach of
any fiduciary or similar duty of Viner to the Company and the Company's
shareholders, other than MEI.
Section 2. General Provisions.
(a) If at any time either MEI shall notify Dove of its desire to have any
of its director designees removed, each of Viner and MEI shall, and shall use
his or its reasonable best efforts to cause each of their respective affiliates
to, subject to all applicable requirements of law, vote all of the voting
securities of Dove owned by them and entitled to vote thereon for the removal of
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such director at any meeting of the shareholders of Dove or by written consent
of the holders of voting securities of Dove without a meeting.
(b) Whenever any director designee of MEI ceases to serve on the board of
directors of Dove (whether by reason of death, resignation, removal or
otherwise), MEI shall be entitled, as between Viner and MEI, to designate a
successor director to fill the vacancy so created by giving notice in the manner
provided in Section 1(a) above. Each of Viner and MEI shall, and shall use his
or its reasonable best efforts to cause their respective affiliates to, vote for
such director designee in the manner provided for in Section 1(a) above.
(c) MEI and Viner agree to jointly request the Secretary of the Company to
call a special meeting of shareholders of Dove if either Viner or MEI requests
such a meeting.
(d) MEI acknowledges that the listing criteria of the Nasdaq market (as
contemplated to be amended) may require the Company to have at least two
"independent" directors, and an audit committee, a majority of whose members
must be "independent" directors. Accordingly, notwithstanding anything to the
contrary herein or in the Stock Purchase Agreement, in the event the provisions
of Section 1(c) apply, MEI shall designate at least one "independent" director
to the extent required by such listing criteria.
Section 3. Termination. This Agreement shall terminate on the earlier of
(a) the close of business on the tenth anniversary hereof and (b) the date on
which MEI or its Principals beneficially owns in the aggregate less than 750,000
shares of Common Stock (subject to adjustment for stock splits or combinations
and assuming the Series B Preferred Stock held by MEI is converted into Common
Stock).
Section 4. After-Acquired Shares. All of the provisions of this Agreement
shall apply to and shall include all shares of Common Stock or other voting
securities of Dove now beneficially owned by any of the parties hereto
(including, without limitation, the Purchase Shares being acquired concurrently
with the execution and delivery of this Agreement) and all shares of Common
Stock and other voting securities of Dove issued to (including, without
limitation, the Option Shares), purchased by (whether purchased through
open-market purchases, privately negotiated transactions or otherwise) or which
otherwise become beneficially owned by any of the parties hereto except as
otherwise provided herein.
Section 5. Transfer of Shares. During the term of this Agreement, the
parties shall be free to transfer shares of Common Stock to any person (in which
event such shares will no longer be subject to any restriction under this
Agreement), except that no such transfer shall be made to a Related Person (as
defined in the next sentence) unless prior thereto the other parties shall have
been notified of such proposed transfer and the transferee Related Person shall
have agreed n writing to be bound by the provisions of this Agreement as if a
party named herein. For purposes of the foregoing sentence, the term "Related
Person," when used to indicate a relationship with a party, means any of (a) a
corporation or organization of which such party or any such person referred to
in clause (c) is an officer or partner or is, directly or indirectly, the
beneficial owner of
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25 percent or more of any class of equity securities, (b) any trust or other
estate in which such party or any person referred to in clause (c) has at least
a 25 percent beneficial interest or as to which such party serves as trustee or
in a similar capacity, and (c) any relative in the immediate family (i.e.,
children or step-children) or spouse of such party or any relative in the
immediate family of such spouse.
Section 6. Owner of Shares. Each party to this Agreement may deem and treat
the person in whose name shares of securities are registered in the stock books
of Dove as the owner thereof for all purposes, including, without limitation,
for the giving of notices under this Agreement.
Section 7. Legend. A copy of this Agreement shall be filed with the
Secretary of Dove and shall be kept at its principal executive office. Upon the
execution of this Agreement, each of the parties hereto shall cause each
certificate representing shares of voting securities now or hereafter owned by
it to carry a legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A SHAREHOLDERS' VOTING AGREEMENT, DATED AS OF MARCH 27, 1997,
AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS THEREIN PROVIDED. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF
THE COMPANY.
Section 8. Notices. All notices and other communications shall be effective
(a) upon receipt if (i) hand delivered or (ii) sent by facsimile transmission
and confirmed by mail, (b) the third day after mailing, postage prepaid return
receipt requested and (c) one day after sending by recognized "over-night"
delivery service. Any notice not contemplated above shall be effective upon
receipt. For the purposes of this Section 8, the addresses of the parties to
which notices shall be sent shall be as follows:
If to Viner:
------------
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
If to MEI or any MEI Shareholder:
---------------------------------
At the address set forth in the preamble hereto.
Each of the parties hereto may change the address to which such
communications are to be directed by notice to the other parties as provided in
this Section 8.
Section 9. Complete Agreement. This is the complete agreement between the
parties with respect to the subject matter hereof and supersedes all prior
negotiations and agreements
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with respect thereto. There are no representations, warranties, covenants,
conditions, terms, agreements, promises, understandings, commitments or other
arrangements with respect to the subject matter hereof other than those
expressly set forth herein.
Section 10. Governing Law. This Agreement shall be governed by, construed
under and enforced in accordance with, the laws of the State of California
without regard to any conflict of law principles thereof.
Section 11. Binding Agreement; Successors. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto, and,
except as provided in Section 5 hereof, each of their respective successors,
assigns, heirs and other representatives.
Section 12. Headings. The section headings herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement, nor are they deemed to constitute a part of this Agreement.
Section 13. Counterparts. This Agreement may be executed in tow or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
Section 14. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable and actual attorneys' fees (including any such fees incurred in
connection with enforcement of any judgments) in addition to its or his costs
and expenses and any other available remedies.
Section 15. Waiver; Amendment. Any waiver of any provision or breach of
this Agreement must be in writing, executed by the waiving party. No waiver of
any provision or breach of this Agreement shall be a waiver of any other
provision or breach of this Agreement or any subsequent breach. Any amendment or
modification of this Agreement must be in writing and executed by all of the
parties hereto.
Section 16. Specific Performance. Each of the parties hereto acknowledges
that money damages would be both incalculable and an insufficient remedy for any
breach of this Agreement by a party hereto and that any such breach would cause
the other party hereto irreparable harm. Accordingly, each party hereto agrees
that in the event of any actual or threatened breach of this Agreement by any
party hereto, the other parties hereto shall be entitled to specific
performance. Such remedy shall not be the exclusive remedy for any breach of
this Agreement, but shall be in addition to all other remedies available at law
or equity to such party.
Section 17. Interpretation. The parties hereto agree that each party has
participated in the drafting and preparation of this Agreement, and,
accordingly, in any construction of the meaning herein, no party shall be deemed
to be the drafter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MEDIA EQUITIES INTERNATIONAL, _______________________________
LLC Xxxxxxx Xxxxx
By: _______________________________ _______________________________
Name: Xxxxxxx Xxxxxx Viner
Title:
Acknowledgment of Shareholders' Voting Agreement
Dove Entertainment, Inc. hereby acknowledges the existence of the foregoing
Shareholders' Voting Agreement
Dove Entertainment, Inc.
By: _______________________________
Name:
Title:
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