Exhibit 10.34
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT ("Agreement") is entered
into as of the 25th day of June, 2002 by and among First Look Media, Inc. (f/k/a
Overseas Filmgroup, Inc.) ("Company"), ▇▇▇▇▇▇▇▇ Street Productions, LLC
("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇"), MRCo., Inc.
("MRCo."), ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇▇,"),
▇▇▇▇▇▇▇ Capital Partners, Ltd. ("▇▇▇▇▇▇▇") and Seven Hills Pictures, LLC ("Seven
Hills").
WHEREAS, in connection with the purchase by ▇▇▇▇▇▇▇▇ of certain
securities of the Company pursuant to a Securities Purchase Agreement dated May
3, 2000, the Company and Rosemary, Robert, ▇▇▇▇▇, MRCo., ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
entered into a Voting Agreement, dated as of June 20, 2000 ("Original Voting
Agreement") whereby each of Rosemary, Robert, ▇▇▇▇▇ and MRCo. agreed to nominate
for election as directors certain persons or nominees of parties to the Original
Voting Agreement and to vote the shares of voting capital stock of the Company
that they each owned for such nominee directors;
WHEREAS, in connection with the redemption of ▇▇▇▇▇▇▇'▇ membership
interest in ▇▇▇▇▇▇▇▇ as of July 27, 2000, the Company authorized the transfer of
690,735 shares of the Company's common stock ("Transferred Shares") from
▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇, and in so doing, ▇▇▇▇▇▇▇ agreed to be subject to the terms
of the Original Voting Agreement as if it were ▇▇▇▇▇▇▇▇ Street and to accept the
obligations of the Original Voting Agreement and to have the same rights under
the Original Voting Agreement that ▇▇▇▇▇▇▇▇ Street had with respect to the
Transferred Shares;
WHEREAS, pursuant to a Securities Purchase Agreement dated as of May
20, 2002 (as amended) between the Company and Seven Hills ("Seven Hills Purchase
Agreement"), Seven Hills is purchasing certain securities of the Company; and
WHEREAS, in order to induce Seven Hills to enter into the Seven Hills
Purchase Agreement, the parties hereto have agreed to amend and restate the
Original Voting Agreement to provide for each of Rosemary, Robert, ▇▇▇▇▇, MRCo.,
▇▇▇▇▇▇▇ and Seven Hills to nominate for election as directors certain persons or
nominees of parties to this Amended and Restated Voting Agreement and to vote
the shares of voting capital stock of the Company that they each own for such
nominee directors.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants set forth below, the parties hereto agree as follows:
1. Voting Terms.
(a) So long as (i) ▇▇▇▇▇▇ is employed as the President of the Company
or (ii) ▇▇▇▇▇▇ and ▇▇▇▇▇ together beneficially own five percent (5%) or more of
all the Voting Securities (as defined herein), then each of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and Seven Hills shall use its best efforts to nominate ▇▇▇▇▇▇ for election as a
director or appoint ▇▇▇▇▇▇ as a director of the Company and vote all of its
Voting Securities for ▇▇▇▇▇▇ in an election of directors by the stockholders.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Seven Hills shall not vote any of their Voting Securities
for the removal of ▇▇▇▇▇▇ as a director, except in the event ▇▇▇▇▇▇ is being
removed for "cause."
(b) So long as ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ together beneficially own five
percent (5%) or more of all the Voting Securities, then each of Robert, Ellen,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Seven Hills shall use its best efforts to nominate
▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ for election as directors or appoint them as directors
of the Company and vote all of their Voting Securities for ▇▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ in an election by the stockholders. Robert, Ellen, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and
Seven Hills shall not vote any of their Voting Securities for the removal of
either ▇▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ as a director, except in the event either of them
is being removed for "cause."
(c) So long as MRCo. beneficially owns five percent (5%) or more of all
the Voting Securities, then each of Robert, Ellen, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Seven
Hills shall use its best efforts to nominate for election or appoint as a
director of the Company an individual selected by MRCo. and vote all of their
Voting Securities for such nominee in an election of directors by the
stockholders. Robert, Ellen, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Seven Hills shall not vote
any of their Voting Securities for the removal of the director nominee of MRCo.,
except in the event the person is being removed for "cause." MRCo. agrees that
any person nominated by it for election or appointment as a director will be
reasonably acceptable to the majority of the then sitting board of directors of
the Company, which approval will not be unreasonably withheld and when withheld
only upon written notice to MRCo. by the board of directors stating their
specific objections to the nominee. Such notice shall be sent to MRCo. within
three (3) days of receipt of the name of the nominee by the Company for
inclusion in the proxy statement of the Company relating to the election of
directors or the appointment of such person to the board of directors of the
Company.
(d) So long as Seven Hills beneficially owns five percent (5%) or more
of all the Voting Securities, then each of Robert, Ellen, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
shall use its best efforts to nominate for election or appoint as directors of
the Company two individuals selected by Seven Hills and vote all of their Voting
Securities for such nominees in an election of directors by the stockholders.
Robert, Ellen, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall not vote any of their Voting
Securities for the removal of the director nominees of Seven Hills, except in
the event either of them is being removed for "cause." Seven Hills agrees that
the individuals nominated by it for election or appointment as directors will be
reasonably acceptable to the majority of the then sitting board of directors of
the Company, which approval will not be unreasonably withheld and when withheld
only upon written notice to Seven Hills by the board of directors stating their
specific objections to the nominee(s). Such notice shall be sent to Seven Hills
within three (3) days of receipt of the names of the nominees by the Company for
inclusion in the proxy statement of the Company relating to the election of
directors or the appointment of such individuals to the board of directors of
the Company.
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2. Transfer or Acquisition of Voting Securities. The obligations under this
Agreement will end as to any of the Voting Securities upon their transfer by a
party where such party is no longer the beneficial owner thereof hereto and will
attach to any Voting Securities upon their being acquired by a party hereto.
Notwithstanding the foregoing, if any of the Voting Securities are transferred
by ▇▇▇▇▇▇▇▇, MRCo. or Seven Hills to their respective members or shareholders,
the transferees of such Voting Securities will be subject to the terms of this
Agreement as if they were the transferor, and prior to the Company being
obligated to effect the transfer on the books and records of the Company, the
transferee shall enter into a written agreement accepting the obligations of
this Agreement as it relates to their Voting Securities and the rights the
transferor has as to any nominations or appointments of directors.
3. Power of Appointment. Each party has the power to appoint another stockholder
of the Company or proxy designated by the Company with the authority to exercise
the voting of any Voting Securities beneficially owned by such party, so long as
the person with the appointment votes the securities in accordance with the
terms of this Agreement.
4. Entire Agreement; Modifications and Amendments. This writing
constitutes the entire agreement of the parties with respect to the subject
matter hereof and may not be modified, amended or terminated (other than in
accordance with its terms) except by a written agreement specifically referring
to this Agreement signed by all of the parties hereto.
5. Waivers. No waiver of any breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such waiver, and no such
waiver shall be deemed a waiver of any subsequent breach or default of the same
or similar nature.
6. Legends. Each stock certificate currently outstanding and evidencing shares
subject to the provisions of this Agreement, as soon as practicable after the
execution of this Agreement, shall be submitted to the Company by the party to
this Agreement for the purpose of putting the following legend thereon, and each
stock certificate issued after the date hereof evidencing shares of the
Company's capital stock subject to the provisions of this Agreement (including
any shares issued upon a transfer, stock split, stock dividend,
recapitalization, merger or other similar event) shall at all times during the
term of this Agreement bear the following legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS
OF A VOTING AGREEMENT DATED AS OF JUNE 25, 2002."
7. Titles and Subtitles. The section headings contained herein are for
convenience only and are not intended to define or limit the contents of said
sections.
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8. Cooperation. Each party hereto shall take such further action and shall
execute and deliver such further documents as may be reasonably requested by any
other party in order to carry out the provisions and purposes of this Agreement.
9. Counterparts. This Agreement may be executed in one or more counterparts, all
of which taken together shall be deemed one original.
10. Governing Law. This Agreement and all amendments hereof shall be governed by
and construed in accordance with the laws of the State of Delaware, disregarding
any principles of conflicts of laws that would otherwise provide for the
application of the substantive laws of another jurisdiction.
11. Specific Performance. Without limiting the rights of each party hereto to
pursue all other legal and equitable rights available to such party for any
other party's failure to perform its obligations under this Agreement, each such
party acknowledges and agrees that the remedy at law for any failure to perform
obligations hereunder would be inadequate and all such parties shall be entitled
to specific performance, injunctive relief or other equitable remedies in the
event of any such failure.
12. Definitions.
(a) "Cause" means fraud or dishonest action by the person in his
relations with the Company or any of its subsidiaries or affiliates, or the
conviction of the person of any crime involving an act of moral turpitude or a
felony crime.
(b) "Voting Securities" means any and all of the issued and outstanding
equity securities of the Company entitled to vote together for the election of
directors of the Company, including, but not limited to, the Common Stock and
any other securities convertible into such equity securities that have any right
to vote for the election of directors of the Company.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Agreement on the date first above written.
FIRST LOOK MEDIA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: COO/CFO
▇▇▇▇▇▇▇▇ STREET PRODUCTIONS, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
MRCo., Inc.
By: /s/ ▇▇▇▇▇▇ ▇. Linehar
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Name: ▇▇▇▇▇▇ ▇. Linehar
Title: Vice President
▇▇▇▇▇▇▇ CAPITAL PARTNERS, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
SEVEN HILLS PICTURES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, individually
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, individually
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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