Exhibit 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the “
Voting Agreement ”) is made and entered into as
of November 1, 2005, by and among Coinstar, Inc., a Delaware
corporation (“ Company ”) and Levine
Investments Limited Partnership, an Arizona limited partnership
(“ Stockholder ”).
RECITALS
A. The Company and certain of the
Company’s subsidiaries have entered into an Asset Purchase
Agreement dated as of October 18, 2005 (the “
APA ”) which provides (subject to the
conditions set forth therein) for the acquisition of substantially
all of the assets of The Amusement Factory, L.L.C. Capitalized
terms used and not otherwise defined herein have the meanings
assigned to them in the APA.
B. This Voting Agreement is required
to be executed and delivered by the Stockholder to the Company and
is a condition to closing of the transactions contemplated under
the APA.
C. Upon consummation of the
Acquisition, Stockholder will own shares of common stock of the
Company as identified on Exhibit A hereto (such shares,
together with (1) all equity securities of the Company,
including all options, warrants and other rights to acquire equity
securities of the Company, beneficially owned (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”)) by Stockholder as of
the date of this Agreement, and (2) all additional equity
securities of the Company, including all additional options,
warrants and other rights to acquire equity securities of the
Company, over which Stockholder acquires beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act) during the term of
this Voting Agreement being referred to as the “
Shares ”).
NOW, THEREFORE, in consideration of
the agreements and covenants contained herein, Stockholder and the
Company agree as follows:
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1.
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Agreement to
Vote Shares
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At every meeting of the stockholders
of the Company at which such matters are considered and at every
adjournment thereof, Stockholder shall vote or cause to be voted,
or execute or cause to be executed a proxy or written consent with
respect to, such Stockholder’s Shares (a) in favor of
each matter recommended by the Company’s Board of Directors
for approval by the Company’s stockholders as contained in
proxy materials or similar communications of the Company,
(b) against each matter opposed by the Company’s Board
of Directors for approval by the Company’s stockholders as
contained in proxy materials or similar communications of the
Company, (c) except as provided in subsection (a) above,
against any proposal by a party other than the Company presented
for approval by the Company’s stockholders, and (d) in
respect of any matters not covered by subsections (a) through
(c) above, in the same manner as Company-supplied proxies are
to be voted when returned by stockholders without written contrary
instructions.
Stockholder agrees as
follows:
(a) Stockholder has revoked or
terminated any proxies, voting agreements or similar arrangements
previously given or entered into with respect to
Stockholder’s Shares that would be inconsistent with this
Voting Agreement and hereby irrevocably appoints the Company as
proxy for Stockholder to vote or cause to be voted such Shares for
Stockholder and in Stockholder’s name, place and stead, at
any annual, special or other meeting or action of the stockholders
of the Company, as applicable, or at any adjournment thereof or
pursuant to any consent of the stockholders of the Company in lieu
of a meeting or otherwise, during the term of this Voting
Agreement, in the manner set forth in Sections 1(a), 1(b), 1(c) and
1(d) of this Voting Agreement. This irrevocable proxy is
irrevocable, is coupled with an interest and is granted in
consideration of the Company entering into and consummating the
transactions contemplated by the APA. Neither the Company, nor the
Company’s successors, assigns, subsidiaries, divisions,
employees, officers, directors, shareholders, agents and affiliates
shall owe any duty to, whether in law or otherwise, or incur any
liability of any kind whatsoever, including without limitation,
with respect to any and all claims, losses, demands, causes of
action, costs, expenses (including reasonable attorney’s
fees) and compensation of any kind or nature whatsoever, to
Stockholder in connection with or as a result of any voting (or
refraining from voting) by the Company of the Shares subject to the
irrevocable proxy herby granted to the Company at any annual,
special or other meeting or action or the execution of any consent
of the stockholders of the Company. Stockholder acknowledges that,
pursuant to the authority hereby granted under the irrevocable
proxy, the Company may vote Stockholder’s Shares in
furtherance of its own interests, and the Company is not acting as
a fiduciary for Stockholder.
(b) Notwithstanding the foregoing
grant to the Company of the irrevocable proxy, if the Company
elects not to exercise its rights to vote Stockholder’s
Shares pursuant to the irrevocable proxy, Stockholder agrees to
vote or cause to be voted Stockholder’s Shares during the
term of this Voting Agreement in the manner set forth in Sections
1(a), 1(b), 1(c) and 1(d) of this Voting Agreement.
(c) This irrevocable proxy shall not
be terminated by any act of such Stockholder or by operation of
law, whether by the death or incapacity of such Stockholder or by
the occurrence of any other event or events (including, without
limitation the foregoing, the termination of any trust or estate
for which such Stockholder is acting as a fiduciary or fiduciaries
or the dissolution or liquidation of any corporation or
partnership). This irrevocable proxy shall terminate upon the
termination of this Voting Agreement.
Stockholder agrees that it will not,
nor will it permit any entity under Stockholder’s control to,
deposit any of its Shares in a voting trust or subject
