Exhibit 5.1
VOTING AGREEMENT OF INNOVACOM, INC.
THIS VOTING AGREEMENT, dated February 27, 1997 and amended as of April
1, 1997, May 14, 1997, June 10, 1997 and December 1, 1997 (the
"Agreement"), is made and entered into by and among the following parties:
(i) the shareholder of Sierra Vista Entertainment, Inc. identified in
EXHIBIT A hereto (the "Sierra Vista Shareholder"); and (ii) Xx. Xxxx Xxx
("Koz"), a shareholder of InnovaCom, Inc. (collectively, the Sierra Vista
Shareholder and Koz shall be referred to herein as the "Shareholders" in
the plural and as the "Shareholder" in the singular).
RECITALS
WHEREAS, InnovaCom, Inc., a Nevada corporation ("InnovaCom") and
Sierra Vista Entertainment, Inc., a Nevada corporation ("Sierra Vista")
have entered into that certain "PLAN AND AGREEMENT OF REORGANIZATION" dated
February 27, 1997 and amended as of April 1, 1997, and May 14, 1997 (the
"Reorganization Agreement") pursuant to which, among other things, the
Sierra Vista Shareholder shall acquire shares of common stock in InnovaCom;
and
WHEREAS, Section 8.3(e) of the Reorganization Agreement provides as a
condition precedent to closing that the Sierra Vista Shareholder and Koz
shall have entered into a voting agreement wherein Koz shall have the right
to nominate three (3) members of the six (6) member board of directors of
InnovaCom and the Sierra Vista Shareholder shall have the right to nominate
three (3) members of the six (6) member board of directors of InnovaCom,
and that all shares subject to the voting agreement shall vote in favor of
the six (6) nominees; and
WHEREAS, the parties desire to enter into this Voting Agreement
prepared pursuant to Nevada Corporations Code 78.365(3) for the
purpose of effectuating the intent of Section 8.3(e) of the Reorganization
Agreement;
NOW, THEREFORE, for the mutual promises contained herein and in the
Reorganization Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Sierra
Vista Shareholder and Koz hereby AGREE AS FOLLOWS:
1. SHARES SUBJECT TO AGREEMENT. The number of shares of common
stock of InnovaCom listed opposite the name of the Sierra Vista Shareholder
in EXHIBIT A hereto, shall be subject to this Agreement. EXHIBIT A is
incorporated herein and made a part of this Agreement by this reference.
In addition, the number of shares of common stock of InnovaCom listed
opposite the name of Koz in EXHIBIT B hereto, represented by the indicated
share certificate numbers, shall be subject to this Agreement. EXHIBIT B
is incorporated herein and made a part of this Agreement by this reference.
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2. AGREEMENT TO NOMINATE DIRECTORS AND VOTE SHARES. The parties
agree that the Sierra Vista Shareholder shall have the right to nominate
three (3) members of the six (6) member board of directors of InnovaCom,
and that Koz shall have the right to nominate three (3) members of the six
(6) member board of directors of InnovaCom. All shares subject to this
Agreement as identified in Section 1 above shall vote in favor of the six
(6) nominees of the Shareholders at all elections of directors of InnovaCom
held during the term of this Agreement.
3. SHARE CERTIFICATE LEGEND. Each certificate representing the
shares of common stock of InnovaCom held by the Sierra Vista Shareholder
and by Koz and subject to this Agreement shall be stamped or otherwise
imprinted with a legend in the following form (in addition to any legend
required under applicable securities laws):
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO A VOTING AGREEMENT DATED FEBRUARY 27, 1997, AS AMENDED, BY AND
BETWEEN CERTAIN SHAREHOLDERS OF SIERRA VISTA ENTERTAINMENT, INC. AND
XXXX XXX, A COPY OF WHICH MAY BE OBTAINED FREE OF CHARGE FROM THE
COMPANY UPON REQUEST.
Upon the sale of common stock (i) by the Sierra Vista Shareholder and
with the written consent of Koz or, (ii) by Koz and with the written
consent of the Sierra Vista Shareholder, each new share certificate issued
in connection with such sale and receipt of the appropriate written consent
shall be free of the foregoing legend.
4. SIERRA VISTA SHAREHOLDER'S PROXY. Until such time as the
conditions contained in Section 9.5(a) of the Reorganization Agreement have
been satisfied, all shares of common stock of InnovaCom held by the Sierra
Vista Shareholder and subject to this Agreement shall be voted by Koz,
pursuant to a proxy in substantially the form attached hereto as EXHIBIT C,
on all matters other than the election of directors.
5. TERMINATION OF AGREEMENT. This Agreement shall terminate five
(5) years after the date first written above. At any time within the two
(2) years next preceding the expiration of the Agreement, the parties
hereto may extend its duration for as many additional periods, each not to
exceed ten (10) years, as they wish. Notwithstanding anything else in this
Agreement to the contrary, this Agreement shall also terminate upon the
date InnovaCom's common stock is accepted for trading on the NASDAQ Stock
Market, or on any national stock exchange.
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6. MERGER OR CONSOLIDATION. If InnovaCom is merged into or
consolidated with another corporation, or all or substantially all of the
assets of InnovaCom are transferred to another corporation, then the term
"InnovaCom" shall be construed to include the successor corporation; and
the Shareholders shall receive and hold under this Agreement any shares of
the successor corporation received by them as a result of their ownership
of shares held by them under this Agreement before the merger,
consolidation or transfer. Certificates issued and outstanding under this
Agreement at the time of the merger, consolidation or transfer may remain
outstanding, but the Shareholders may, at their discretion, substitute for
these voting certificates new certificates in appropriate form.
7. NECESSARY ACTS. The parties shall perform any acts, including
executing any documents, that may be reasonably necessary to carry out
fully the provisions and intent of this Agreement.
8. NOTICES. All notices, demands, requests, or other communications
required or permitted by this Agreement shall be in writing and shall be
deemed duly served when personally delivered to the party or to an officer
or agent of the party, or when deposited in the United States mail, first-
class postage prepaid, addressed to a Shareholder at the address appearing
for him or it on the books and records of InnovaCom, or at any other
address the party may designate by written notice to the others.
9. REMEDIES. The parties shall have all the remedies available to
them for breach of this Agreement as are provided by law or in equity. The
parties further agree that in addition to all other remedies available at
law or in equity, the parties shall be entitled to specific performance of
the obligations of each party to this Agreement and immediate injunctive
relief. The parties also agree that if an action is brought in equity to
enforce a party's obligations, no party shall argue, as a defense, that
there is an adequate remedy at law.
10. ATTORNEYS' FEES. In the event of any litigation concerning this
Agreement between the parties to this Agreement or the parties to this
Agreement and the estate of any deceased Shareholder, the prevailing party
shall be entitled, in addition to any other relief that may be granted, to
reasonable attorneys' fees.
11. BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall be
binding on the parties to the Agreement and on each of their heirs,
executors, administrators, successors and assigns.
12. SEVERABILITY. If any provision is unenforceable or invalid for
any reason, the remaining provisions shall be unaffected by such a holding.
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13. AMENDMENTS AND MODIFICATIONS. This Agreement may not be amended,
modified, changed, supplemented, superseded, canceled or terminated, except
by written instrument signed by the parties hereto.
14. WAIVERS. No waiver of any provision, or consent to any action,
or breach of any provision herein contained, shall constitute or be deemed
a waiver of a preceding or succeeding breach of the same provision, or of
any other provision, whether or not similar. No waiver or consent shall
constitute a continuing waiver or consent, or commit a party to provide a
waiver or consent in the future, except to the extent specifically set
forth in writing.
15. GOVERNING LAW. This Agreement shall be construed according to
and governed by the laws of the State of Nevada.
16. ENTIRE AGREEMENT. This instrument, and EXHIBIT A and EXHIBIT B
hereto, constitute the entire Voting Agreement of InnovaCom and correctly
set forth the rights, duties and obligations of each party and of each
party to the other. Any prior agreements, promises, negotiations or
representations concerning the Agreement's subject matter not expressly set
forth in this Agreement are of no force or effect.
17. SIGNATURES AND COUNTERPARTS. Each of the counterparts of this
Agreement executed simultaneously herewith by all parties hereto shall be
deemed an original of this Agreement. Facsimile signatures transmitted by
telecopy shall have the same dignity, and shall be acceptable for all
purposes, as an original signature.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Sierra Vista Shareholder
_______________________________
507784 BC Ltd. By Xx Xxxxxx
XX. XXXX X. XXX
_______________________________
Xxxx X. Xxx, an individual
EXHIBIT A
SIERRA VISTA SHAREHOLDER AND SHARES
SHARES HELD
507784 BC Ltd. 1,000,000
EXHIBIT B
KOZ SHARES
4,948,000 shares, Certificate Nos. 000326 through 000544, inclusive
EXHIBIT C
FORM OF PROXY
Until the conditions contained in Section 9.5(a) of that certain Plan
and Agreement of Reorganization dated February 27, 1997 and amended as of
April 1, 1997, (the "Conditions"), the undersigned shareholder of
InnovaCom, Inc. hereby appoints Xxxx Xxx as Proxy with the power of
substitution and hereby authorizes him to represent and to vote all shares
of stock of InnovaCom, Inc. which the undersigned is entitled to vote, on
all matters other than the election of directors, at any meeting of
shareholders, any written consent of shareholders, any adjournment of any
meeting of shareholders, and any other matters which may be subject to
shareholder vote or approval.
This proxy may not be revoked at any time prior to the satisfaction of
the Closing Conditions.
Dated: ___________ _____________________________
Signature of Shareholder
Number of Shares ___________ _____________________________
Name
______________________________
Address
______________________________
