STOCKHOLDERS' VOTING AGREEMENT
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This Stockholders' Voting Agreement (the "Agreement") is made and
entered into as of this ____ day of October, 1996, by and among Overseas
Filmgroup, Inc., a Delaware corporation (the "Company"), Xxxxx Xxxxxxxx Little
("EDL"), Xxxxxx X. Xxxxxx ("RBL") (EDL and RDL are referred to collectively as
the "Xxxxxxx") and Xxxxxxx X. Xxxxxxx (each of EDL, RDL and Xxxxxxx X. Xxxxxxx
are sometimes individually referred to herein as an "Overseas Stockholder" and
collectively as the "Overseas Stockholders"), and Xxxxxxx X. Xxxxxxx, Xxxxxxx
Xxxxx, the Xxxxxxxx Family Trust Dated 9/18/92, Xxxx Xxxx, Sparta Partners III
and Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxx and Xxxx X. Xxxxx, individually and as
general partners of Sparta Partners III (each of Messrs. Bannon, Vorse,
Rochlis, Hyde and Xxxxx, and Xx. Xxxxx, the Xxxxxxxx Family Trust Dated
9/18/92, and Sparta Partners III are sometimes individually referred to herein
as a "Founder" and collectively, the "Founders"). The Overseas Stockholders and
the Founders are sometimes referred to in this Agreement collectively as the
"Stockholders." Capitalized terms used herein and not otherwise defined shall
have the meaning given them in the Agreement of Merger dated as of July 2,
1996, as amended as of September 20, 1996, among Entertainment/Media
Acquisition Corporation (as the Company was known), Overseas Filmgroup, Inc.,
Xxxxx Xxxxxxxx Little and Xxxxxx X. Xxxxxx (the "Merger Agreement").
Recitals:
1. The Founders collectively own 500,000 shares of Common Stock of the
Company, which constituted approximately nineteen percent (19%) of the
outstanding shares of Common Stock of the Company prior to the Merger; and
currently constitutes approximately 8.7% of the outstanding shares of Common
Stock of the Company following the Merger;
2. Pursuant to the Merger Agreement, the Overseas Stockholders
acquired upon consummation of the Merger shares of Common Stock of the Company
representing approximately fifty-five percent (55%) of the outstanding shares
of Common Stock of the Company immediately following the Merger;
3. Pursuant to Section 7.7 of the Merger Agreement, the
following number of designees were proposed at the EMAC
Stockholders' Meeting for election as directors of the Company
effective upon the consummation of the Merger: four (4)
designees of the Overseas Stockholders; and three (3) designees
of the Founders;
4. The Company's Restated Certificate of Incorporation, as in effect
upon consummation of the Merger, provides for a seven (7) member staggered
Board of Directors consisting of three (3) classes: two (2) Class I directors
whose terms shall expire at the 1997 annual meeting of stockholders, two (2)
Class II directors whose terms shall expire at the 1998 annual meeting of
stockholders and three (3) class III directors whose terms shall expire at the
1999 annual meeting of stockholders. Of the directors initially designated
pursuant to Section 7.7 of the Merger Agreement, Xxxxxx X. Xxxxxx (a designee
of the Xxxxxxx) and Xxxxxxx X. Xxxxxx (a designee of the Founders) were
designated Class I directors; Xxxxx Xxxxxxxx Little (a designee of the Xxxxxxx)
and Xxxx X. Xxxxx (a designee of the Founders) were designated Class II
directors; and Xxxxxxx X. Xxxxxxx and Xxxxxxxxxx Xxxxxxxx (designees of the
Xxxxxxx) and Xxxxxxx X. Xxxxxxx (a designee of the Founders) were designated
Class III directors upon consummation of the Merger.
5. The Overseas Stockholders and the Founders wish to establish
certain rights and obligations of the parties hereto with respect to the
management of the Company and certain other matters.
In consideration of the mutual covenants contained herein and the
consummation of the Merger, and for other valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. Voting of Shares.
(a) It is the intent of the parties hereto and such parties
shall use their best efforts such that the Board shall consist of seven (7)
members, including four (4) designees of the Xxxxxxx (the "Overseas Director
Designees"), and three (3) designees of the Founders (the "Founder Director
Designees").
(b) Subject to the provisions of the Restated Certificate and
Bylaws, each Founder agrees to vote, or to use its best efforts to cause its
Director Designees to vote, for the election of the Overseas Director
Designees, and subject to the provisions of the Restated Certificate and
Bylaws, each Overseas Stockholder agrees to vote, or to use its best efforts to
cause its Director Designees to vote, for the election of the Founders Director
Designees.
(c) In any and all elections of directors of the Company,
beginning with the first election to be held after the meeting of stockholders
of the Company at which the Merger Agreement was approved, each Stockholder
shall vote or cause to be voted all Shares (as defined in Section 8 below)
owned by him, her or it, or over which he, she or it has voting control, and
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otherwise use his, her or its respective best efforts, so as to fix the number
of directors of the Company at seven (7) and to elect (i) one (1) Class I
director, one (1) Class II director and two (2) Class III directors designated
by the Xxxxxxx and (ii) one (1) Class I director, one (1) Class II director and
one (1) Class III director designated by the Founders (by action of the holders
of a majority of the Shares held by all Founders).
(d) The Company shall provide the Stockholders with 30 days'
prior written notice of any intended mailing of a notice to stockholders for a
meeting at which directors are to be elected. The Overseas Stockholders and the
Founders shall give written notice to all other parties to this Agreement, no
later than 20 days prior to such mailing, of the persons designated by the
Overseas Stockholders and the Founders as nominees for election as directors;
provided, that notice shall be deemed to have been given for this purpose (i)
to the Founders, if given to Xxxx X. Xxxxx, and (ii) to the Overseas
Stockholders, if given to Xxxxx Xxxxxxxx Little. The Company agrees to nominate
and recommend for election as directors only the individuals designated, or to
be designated, pursuant to Section 1(a). If the Overseas Stockholders or the
Founders shall fail to give notice to the Company as provided above, it shall
be deemed that the designees of the Overseas Stockholders or the Founders, as
the case may be, then serving as directors shall be their designees for
reelection.
(e) During the term of this Agreement, the Overseas
Stockholders shall not vote to remove any director designated by the Founders
and who is still entitled to be a director hereunder, and the Founders shall
not vote to remove any director designated by the Overseas Stockholders and who
is still entitled to be a director hereunder; provided, however, that as soon
as practicable after the receipt of a written request from holders of a
majority of the Shares held by all Overseas Stockholders to remove an Overseas
Stockholders Designee, or from holders of a majority of the Shares held by all
Founders to remove a Founders Designee, the other Stockholders agree to use
their best efforts to take, or cause to be taken, all appropriate action to
effect the removal and replacement of such Overseas Stockholders Designee or
Founders Designee, as the case may be.
2. Representations and Warranties. Each of the
Stockholders hereby represents and warrants to the other
Stockholders that:
(a) Such party has the requisite power and authority to enter
into this Agreement;
(b) All acts, conditions and things required to be done,
fulfilled and performed and (except as disclosed in writing
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by any of the parties to the others prior to the signing of this Agreement) all
material consents, permissions, authorizations or other approval of, notice to,
or registration with, any regulatory authority or other person required to be
obtained or made, in order (i) to enable such party lawfully to enter into,
exercise its rights under, and perform its obligations under this Agreement,
(ii) to ensure that the obligations of such party under this Agreement are
legal, valid and enforceable, have been done, fulfilled, performed, taken, made
or obtained, as applicable;
(c) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will
not (i) violate, conflict with or result in the breach of any of the terms of,
result in a modification of the effect of, otherwise give any other contracting
party the right to terminate, or constitute (with notice or otherwise) a
default under, any contract by which each such party, its assets, properties or
business may be bound or subject; (ii) violate any order, judgment, injunction,
award or decree of any regulatory authority against, or binding upon, such
party or its assets, properties or business; or (iii) except as disclosed in
writing by any of the parties to the others prior to the signing of this
Agreement, violate any applicable law or regulation or any permit, license,
franchise, registration or similar authorization with respect to, or binding
upon, its assets, properties or business.
Each of the Founders represents and warrants to the Overseas
Stockholders that he, she or it beneficially owns the shares of Common Stock
and other securities of the Company as set forth on Schedule A attached hereto.
3. Quorum. Five of the seven authorized members of the Board
of Directors shall constitute a quorum at meetings of the Board of Directors
and, subject to Section 8, (i) at least three of whom shall be designees of
Overseas and (ii) at least two of whom shall be designees of the Founders.
4. Undertaking; Condition Precedent. Each of the Stockholders
undertakes and agrees to cause their respective Director Designees to vote in
favor of a resolution of the Board implementing the provisions of Section 5
hereof.
5. Restrictions on Certain Actions. Each Stockholder agrees
that the following actions and decisions to be taken by the Company (each a
"Major Decision") shall require the affirmative vote of at least 75% of the
authorized number of members of the Board of Directors of the Company.
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(i) Any amendments to the Restated Certificate or
the Bylaws which would alter (A) the voting rights of the
holders of stock in the Company, (B) the number or classes of
directors on the Board, or (C) the notice and quorum
requirements for meetings of the Board or its Committees or
of the shareholders of the Company;
(ii) Any merger or sale of all or substantially all
of the assets of the Company (other than in connection with
the liquidation, dissolution or winding up of the Company);
(iii)The designation or issuance of any Preferred
Stock of the Company; or
(iv) Any amendments to the Operating Guidelines.
6. Restrictions on Solicitations. None of the Stockholders
will, and each Stockholder will cause his, her or its affiliates not to: (a)
except pursuant to this Agreement, make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" to vote, or initiate, propose or
otherwise solicit stockholders of the Company for the approval of one or more
stockholder proposals or induce or attempt to induce any other person or entity
to initiate any stockholder proposal, if such proxy or proposal relates to (i)
the removal from office of one or more of the Company's directors who is not a
designee of said Stockholder (or in Xxxxxxx X. Xxxxxxx'x case, is not a
designee of the Xxxxxxx), other than in accordance with this Agreement, (ii)
the proposal of a slate of directors different than that required by this
Agreement or (iii) amending the Company's certificate of incorporation or
bylaws in any way that would contravene this Agreement; or (b) except pursuant
to this Agreement or any agreement previously entered into by the Founders or
Overseas Stockholder, form, join, in any way participate in, or encourage the
formation of, a Group (as defined in the Securities Exchange Act) with respect
to any voting securities of the Company to take any action prohibited by this
section; or (c) in any way directly or indirectly, aid or abet or otherwise
induce any person or entity to take any action prohibited by the foregoing.
7. Shares. "Shares" shall mean and include any and all shares
of Common Stock and/or shares of capital stock of the Company, by whatever name
called, which carry voting rights (including voting rights which arise by
reason of default) and shall include any shares now owned or subsequently
acquired by a Stockholder, however acquired, including without limitation stock
splits and stock dividends.
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8. Termination. This Agreement shall terminate on the earliest of:
(a) eight and one-half (8 1/2) years following the date of this
Agreement; or
(b) as to the rights (but not the obligations) of the Founders
under this Agreement, as follows: if the Founders cease to collectively own at
least 175,000 Shares, they shall lose the right to designate one of their
director designees and shall be entitled to designate only two directors; if
the Founders cease to collectively own at least 125,000 Shares, they shall lose
the right to designate an additional one of their director designees and shall
be entitled to designate only one director; if the Founders cease to
collectively own at least 20,000 Shares, they shall lose the right to designate
an additional one of their director designees and shall not be entitled to
designate any director; or
(c) as to the rights (but not the obligations) of the Overseas
Stockholders, as follows: if the Overseas Stockholders cease to collectively
own at least 794,444 Shares, they shall lose the right to designate two of
their director designees and shall be entitled to designate only two directors;
if the Overseas Stockholders cease to collectively own at least 20,000 Shares,
they shall lose the right to designate an additional two of their director
designees and shall not be entitled to designate any director; or
(d) the termination of employment of the Overseas Stockholders
under their respective Employment Agreements, dated the date hereof, with the
Company, whether such termination is with Cause, without Cause, for Good
Reason, voluntary or otherwise.
9. No Revocation. The voting agreements contained herein
are coupled with an interest and may not be revoked, except by
written consent of all of the Stockholders.
10. Restrictive Legend. All certificates representing Shares owned or
hereafter acquired by the Stockholders or any transferee of the Stockholders
bound by this Agreement shall have affixed thereto a legend substantially in
the following form:
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Stockholders' Voting
Agreement by and among the registered owner of this certificate, the
Company and certain other stockholders of the Company, a copy of which
is available for inspection at the offices of the Secretary of the
Company."
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11. Transfers of Rights. The rights and obligations under this
Agreement shall be transferable to any transferee of Shares from a Stockholder,
only if such transferee is a controlled Affiliate (other than by virtue of
being an officer or director of such stockholder or transferee) of such
Stockholder (or, in addition, in the case of the Overseas Stockholders, such
transfer is made by the Overseas Stockholders for bona fide estate planning
purposes) and only if such transferee agrees in writing to be bound by the
terms and conditions of this Agreement. Any person or entity that acquires
Sparta Partners III, or any interest therein, shall be deemed to be a
transferee for purposes of this Section 11, and Sparta Partners III and such
transferee shall be entitled to the rights and obligations under this Agreement
only if such transferee is a controlled Affiliate (other than by virtue of
being an officer or director of such stockholder or transferee) of Sparta
Partners III and only if such transferee agrees in writing to be bound by the
terms and conditions of this Agreement.
12. General.
(a) Severability. If any term, provision or covenant in this
Agreement is held to be invalid, void or unenforceable, (i) the remainder of
the terms, provisions and covenants in this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
(ii) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, all portions of any section of this Agreement
containing any such provisions held to be invalid, void or unenforceable that
are not themselves invalid, void or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, void or
unenforceable; provided, however, that if the obligations under Section 1 or 6
of this Agreement of either (x) Founders holding at least 175,000 Shares or (y)
Overseas Stockholders holding at least 794,444 Shares shall be deemed to be
invalid, void or unenforceable, then the obligations of the remaining parties
to this Agreement shall terminate.
(b) Specific Performance. In addition to any and all other
remedies that may be available at law, in equity or otherwise in the event of
any breach of this Agreement, each Overseas Stockholder shall be entitled to
specific performance of the agreements and obligations of the Company and the
Stockholders hereunder and to such other injunctive or other equitable relief
as may be granted by a court of competent jurisdiction.
(c) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
regardless of the law of choice of law of
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that or any other jurisdiction. Each party irrevocably agrees that any suit,
action, or other legal proceeding arising from or relating to this Agreement
shall be brought in the courts of the State of California or the United States
of America located in Los Angeles County.
(d) Further Assurances. The Stockholders agree to execute and
deliver all documents and instruments and to do all thing necessary to give
effect to the provisions of this Agreement.
(e) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, mailed by first class certified or registered mail, return receipt
requested, postage prepaid, or by overnight courier capable of a verified
receipt:
If to the Company, or the Founders at Entertainment/Media Acquisition
Corporation, c/x Xxxxxx & Co., Inc., 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxx, XX
00000, Attention: Xxxx X. Xxxxx, Vice President-Finance, Treasurer and
Secretary, Telephone (310) 000- 0000, Fax (000) 000-0000, or at such other
address or addresses as may have been furnished in writing by the Company to
the Overseas Stockholders, with copies to Xxxxxxx, Phleger & Xxxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxxx,
Telephone (000) 000-0000, Fax (000) 000-0000, and Xxxxxxxxx, Xxxxx & Xxxxxx,
0000 Xxxxxxxx Xxxx., 0xx Xxxxx, Xxxxxxx Xxxxx, XX 00000, Attention: P. Xxxx
Xxxxx, Telephone (000) 000-0000, Fax (000) 000-0000;
If to the Overseas Stockholders, at Overseas FilmGroup, Inc., 0000
Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxx or Xxxxxx Xxxxxx,
Telephone (000) 000-0000, Fax (310) 000- 0000, or at such other address or
addresses as may have been furnished to the Company in writing by such Overseas
Stockholder, with a copy to Xxxxxx, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000, Attention: Xxxx XxXxxx, Telephone
(000) 000-0000, Fax (000) 000-0000; or
Notices provided in accordance with this Section 8 shall be deemed
delivered upon personal delivery, the next business day if sent by overnight
courier, or four business days after deposit in the U.S. mail.
(f) Complete Agreement; Amendments. This Agreement constitutes the
full and complete agreement of the parties hereto with respect to the subject
matter hereof. No amendment, modification or termination of any provision of
this Agreement shall be valid unless in writing and signed by the Company, the
holders of a majority of the voting power of the Shares then held
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by all Founders and the holders of a majority of the voting power of the Shares
then held by all Overseas Stockholders.
(g) Pronouns. Whenever the content may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural,
and vice versa.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one Agreement binding on all the
parties hereto.
(i) Captions. Captions of sections have been added only for
convenience and shall not be deemed to be a part of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
COMPANY:
OVERSEAS FILMGROUP, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
-------------------------
Title: Vice President
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OVERSEAS STOCKHOLDERS:
/s/ Xxxxx Xxxxxxxx Little
-------------------------------------
Xxxxx Xxxxxxxx Little
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
FOUNDERS:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Hoberman Family Trust Dated
9/18/92, Xxxxxxx X. Xxxxxxxx
and Xxxxxxx X. Xxxxxxxx, as
Trustees
/s/ Xxxx Xxxx
-------------------------------------
Xxxx Xxxx
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/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
SPARTA PARTNERS III
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
-------------------------
Title: General Partner
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OVERSEAS STOCKHOLDERS
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
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SCHEDULE A
Founder Shares of Common Stock
------- ----------------------
Xxxxxxx Xxxxx 25,000
Hoberman Family Trust
Dated 9/18/92, Xxxxxxx X.
Xxxxxxxx and Xxxxxxx, X.
Xxxxxxxx, as Trustees 25,000
Xxxx Xxxx 25,000
Xxxxxxx X. Xxxxxxx 132,353
Sparta Partners III 292,647
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