f8k100708ex10i_redmile.htm


     

     

    Exhibit
10.1

     

    
      VOTING
AGREEMENT

       

      This
VOTING AGREEMENT (this “Agreement”), is made and
entered into this 7th day of
October 2008 by and among RME Merger Sub Corp., a Delaware corporation (“Merger Sub”), and the
undersigned stockholders (collectively, the “Stockholders” and
individually, a “Stockholder”) of Red Mile
Entertainment, Inc., a Delaware corporation (the “Company”).

       

      WHEREAS,
pursuant to the terms and subject to the conditions of that certain Agreement
and Plan of Merger, dated the date hereof (the “Merger Agreement”), by and
among the Company, SilverBirch Inc., an Ontario corporation (“Parent”), its wholly owned
subsidiary, Merger Sub, and Kenny Cheung, as representative, pursuant to which
Merger Sub will merge with and into the Company, with the Company to be the
surviving corporation of the merger (the “Merger”);

       

      WHEREAS,
each Stockholder is the holder of record or beneficial owner (for all purposes
in this Agreement, as such term is defined in Rule 13d-3 of the Rules and
Regulations promulgated by the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
securities for which the Stockholders have beneficial ownership shall be “Beneficially Owned”) of the
number of shares of common stock, par value $0.01 per share of the Company (the
“Common Stock”),
opposite such Stockholder’s name on Exhibit A attached
hereto;

       

      WHEREAS,
the Shares (as such term is defined below) represent approximately 23% of the
voting power of the issued and outstanding voting securities of the
Company;

       

      WHEREAS,
to induce the execution of the Merger Agreement by Merger Sub and Parent, the
Stockholders agree to vote the Shares so as to facilitate consummation of the
Merger to the extent more fully described below; and

       

      WHEREAS,
all capitalized terms used in this Agreement without definition herein shall
have the meanings ascribed to them in the Merger Agreement.

       

      NOW,
THEREFORE, in consideration of the mutual promises and the mutual covenants and
agreements contained herein, the Stockholders, severally and not jointly and
severally, and Merger Sub agree as follows:

       

      1.           Agreement to Vote
Shares.

       

      1.1           At
any meeting of the stockholders of the Company called with respect to the
Merger, the Merger Agreement and the other transactions contemplated thereby,
and at any adjournment thereof, and on every action or approval by written
consent of stockholders of the Company, and with respect to any consent
solicited with respect to the Merger, the Merger Agreement and any of the other
transactions contemplated thereby, the Stockholders shall vote the Shares (a) in
favor of approval of the Merger, the Merger Agreement, the other transactions
contemplated thereby and any matter which could reasonably be expected to
facilitate the Merger and such other transactions and (b) against approval or
adoption of any Alternative Transaction or any other proposal that is intended
or would reasonably be construed to be in opposition to, or in competition with,
or in conflict with adoption of the Merger Agreement and consummation of the
transactions contemplated thereby.  Each Stockholder may vote on all
other matters in a manner determined in his, her or its sole
discretion.

       

       

      
        
          
          

        

        
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      1.2           Each
Stockholder, as the holder of record or beneficial owner of voting stock of the
Company, shall be present, in person or by proxy, at all meetings of
stockholders of the Company and at any adjournment thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the matters addressed in Section 1.1, so that all Shares are counted for
the purpose of determining the presence of a quorum at such meetings or on such
written consent.  The Stockholders shall not enter into any agreement
or understanding with any person or entity to vote or give instructions in any
manner inconsistent with the terms of this Section 1.

       

      2.           Irrevocable
Proxy.  Concurrently with the execution of this Agreement, the
Stockholders agree to deliver to Merger Sub an irrevocable proxy in the form
attached hereto as Exhibit B (the “Proxy”), provided that the
Proxy shall be revoked only upon the Expiration Date (as defined
below).  The Proxy is irrevocable and coupled with an interest in the
obligations of the Stockholders.

       

      3.           No Solicitation of
Proxies.  Each Stockholder agrees (solely in his, her or its
capacity as such) that he, she or it shall not directly or indirectly, engage in
any solicitation (as defined in Regulation 14A of the Rules and Regulations
promulgated by the Securities and Exchange Commission pursuant to the Exchange
Act) of other stockholders of the Company (a) against the Merger, the
Merger Agreement, the other transactions contemplated thereby or any matter that
could reasonably be expected to facilitate the Merger and such other
transactions or (b) in favor of any Alternative Transaction.

       

      4.           Definition of
Shares.  For purposes of this Agreement, the term “Shares” shall include: (i) all
securities of the Company (including, without limitation, all shares of Common
Stock) owned of record or Beneficially Owned by the Stockholders as of the date
of this Agreement, as indicated on Exhibit A; and (ii)
all additional securities of the Company of which the Stockholders acquire
record ownership during the period from the date of this Agreement through the
Expiration Date, including, without limitation, through the exercise or
conversion of any options, warrants or other rights to purchase shares of Common
Stock and other securities convertible into, or exercisable for shares of Common
Stock.  In the event of a stock dividend or distribution, or any
change in the Shares by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term “Shares” shall be deemed to
refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged.

       

      5.           Transfers of
Shares.  Each Stockholder hereby agrees that, at all times
during the period commencing with the execution and delivery of this Agreement
until the Expiration Date, such Stockholder (a) shall not cause or permit the
Transfer (as defined below) of any Shares, or any interest in the Shares, to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
Shares, and (b) 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 or arrangement in contravention of the obligations of such Stockholder
under this Agreement with respect to the Shares.  

       

       

      
        
          
          

        

        
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        Each
Stockholder further agrees with, and covenants to, Merger Sub that such
Stockholder shall not request that the Company register the Transfer of any
certificate or uncertificated interest representing any of the Shares, unless
such Transfer is made in compliance with this Section 5.  From and
after the date of this Agreement, through the Expiration Date, the Company will
not register or otherwise recognize the Transfer (book-entry or otherwise) of
any Shares or any certificate or uncertificated interest representing any of the
Stockholders’ Shares, except as permitted by, and in accordance with this
Section 5.  This Section 5 shall not prohibit a Transfer of Shares by
any Stockholder (A) to any member of such Stockholder’s immediate family, or to
a trust for the benefit of such Stockholder or any member of such Stockholder’s
immediate family, or (B) upon the death of such Stockholder; provided however,
that a Transfer referred to in this sentence shall be permitted only if, as a
precondition of such Transfer, the transferee shall have (i) duly executed a
counterpart of this Agreement and a proxy in the form attached hereto as Exhibit B, and (ii)
agreed in writing to hold such Shares, or such interest therein, subject to all
of the terms and conditions set forth in this Agreement.  For purposes
of this Agreement, a person or entity shall be deemed to have effected a “Transfer” of a security if
such person or entity, directly or indirectly: (i) sells, offers to sell, makes
any short sales of, pledges, encumbers, lends, hypothecates, enters into any
type of equity swap or hedging of, grants an option with respect to, transfers
or disposes of such security, any interest therein, or the economic consequences
of ownership of such security or (ii) enters into an agreement, contract or
commitment providing for the sale of, making any short sales of, pledge of,
lending of, encumbrance of, equity swap or hedging of, grant of an option with
respect to, transfer of or disposition of such security, any interest therein or
the economic consequences of ownership of such security, other than any such
actions pursuant to which such person or entity maintains all voting rights with
respect to such security.

      

       

      6.           Representations and
Warranties of the Stockholders.  Each Stockholder, severally
and not severally and jointly, hereby represents and warrants to Merger Sub as
follows:

       

      6.1           Authority.

       

      (a)           The
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby.  The execution
and delivery of this Agreement by the Stockholder, and the consummation of the
transactions contemplated hereby, has been duly authorized by all necessary
action on the part of the Stockholder.

       

      (b)           This
Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder enforceable in
accordance with its terms, subject to its enforceability against Merger Sub and
the effect of applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors’ rights generally and subject to the effect of
general principles of equity, including, without limitation, the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law.  The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of or default (with or without notice
or lapse of time or both) under or the acceleration of any provision of any
trust agreement, partnership agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation applicable to the Stockholder or to any of the property or
assets of the Stockholder.

       

       

      
        
          
          

        

        
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      (c)           No
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic, foreign or supranational,
is required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by the Stockholder
of the transactions contemplated hereby.

       

      6.2           The
Shares.  Each Stockholder owns of record or Beneficially Owned
as of the date hereof the number of Shares indicated opposite such Stockholder’s
name on Exhibit
A, free and clear of any liens, claims, charges or other encumbrances or
restrictions of any kind whatsoever and has sole, and otherwise unrestricted,
voting power with respect to such Shares.  Each Stockholder does not
own any Shares other than those set forth opposite such Stockholder’s name on
Exhibit A, and
(assuming that the closing under the Merger Agreement occurs on the terms set
forth in the Merger Agreement) each Stockholder does not have the right to
acquire any additional capital stock of the Company, or warrants, options or
other rights to acquire same.

       

      7.           Effectiveness.  The
effectiveness of this Agreement is conditioned upon the Merger Agreement having
been duly executed and delivered by all of the parties thereto and the Merger
Agreement being in full force and effect.

       

      8.           Termination.  Notwithstanding
anything else in this Agreement, this Agreement, the Proxy and all obligations
of the Stockholders under either this Agreement or the applicable Proxy shall
automatically terminate as of the earlier to occur of the following (such date,
the “Expiration Date”):
(i) such date and time as the Merger Agreement shall have been terminated in
accordance with its terms, (ii) such date and time as the Merger shall become
effective in accordance with the terms and conditions of the Merger Agreement or
(iii) upon the execution of a written agreement by all parties
hereto.

       

      9.           Additional
Documents.  Merger Sub and the Stockholders hereby covenant and
agree to execute and deliver any additional documents necessary, in the
reasonable determination of Merger Sub’s legal counsel, to carry out the intent
of this Agreement.

       

      10.           Miscellaneous.

       

      10.1           Severability.  If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.

       

      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 any of the
parties without the prior written consent of all of the other parties
hereto.

       

       

      
        
          
          

        

        
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      10.3           Amendments and
Modifications.  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 each of
the parties 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 the parties set
forth herein. Therefore, it is agreed that, in addition to any other remedies
which may be available to any party upon a violation by one or more other
parties, such non-violating party shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other means
available to it at law or in equity.

       

      10.5           Notices.  All
notices, requests, claims, demands and other communications hereunder shall be
in writing and sufficient if delivered in person, by commercial overnight
courier service, by confirmed fax or sent by mail (registered or certified mail,
postage prepaid, return receipt requested) to the respective parties as
follows:

       

      (a)           if
to Merger Sub, to:

       

      SilverBirch
Inc.

      Suite
500

      150
Ferrand Drive

      Toronto,
ON M3C 3E5

      Attention:  Chief
Executive Officer

      Fax
No.:  (416) 621-7715

       

      with a
copy to:

       

      Nixon
Peabody LLP

      200 Page
Mill Road, 2nd Floor

      Palo
Alto, CA 94306-2022

      Attention:
Jeffrey Selman

      Fax No.:
(866) 438-3891

       

       (b)           if
to a Stockholder, to the address set forth opposite such Stockholder’s name on
Exhibit
A,

       

      or to
such other address as any party hereto may have furnished to the other parties
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.

       

      10.6           Governing
Law.  This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts to be executed and performed entirely within such State.

       

       

      
        
          
          

        

        
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      10.7           Entire
Agreement.  This Agreement and the other agreements referred to
herein contain the entire understanding of the parties in respect of the subject
matter hereof and supersede all prior negotiations and understandings between
the parties with respect to such subject matter.

       

      10.8           Counterparts.  This
Agreement may be executed in counterparts, each of which shall be an original,
but all of which together shall constitute one and the same
agreement.

       

      10.9           Effect of
Headings.  The section headings herein are for convenience only
and shall not affect the construction or interpretation of this
Agreement.

       

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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.

       

      MERGER
SUB:

       

      RME
MERGER SUB CORP.

       

      By:    /s/                                                                                                                   

      Name:  Derek
van der Plaat

      Title:  President

       

      


       

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      STOCKHOLDER
COUNTERPART SIGNATURE PAGE TO

      VOTING
AGREEMENT

      


      This page
constitutes a signature page (this “Signature Page”) to
the Voting Agreement among RME Merger Sub Corp. and the stockholders of Red Mile
Entertainment, Inc. named therein (the “Voting Agreement”) in
your capacity as a Stockholder (as defined in the Voting
Agreement).  Execution of this Signature Page constitutes your
execution of the Voting Agreement.  The Stockholder acknowledges and
agrees that he, she or it is subject to the terms and conditions set forth in
the Voting Agreement upon execution of this Signature Page.

      


      


      STOCKHOLDER:

      


      Print
Name:                      ____________________________

      


      Signature:                        
____________________________

      


      Name:                               ____________________________

      


      Title:                                
____________________________

      (if
applicable)