VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “Agreement”)
is
entered into as of September 16, 2008, by and between Morlex, Inc., a
Colorado corporation (“Morlex”),
and
the undersigned shareholder (the “Shareholder”)
of
Commerce Planet, Inc., a Utah corporation (the “Company”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, Morlex and
the
Company are entering into an Asset Purchase Agreement, by and among Morlex,
Superfly Advertising, Inc., an Indiana corporation and wholly-owned subsidiary
of Morlex (the “Purchaser”),
the
Company, Legacy Media, LLC, a California limited liability company and
wholly-owned subsidiary of the Company (“Legacy”)
and
Consumer Loyalty Group, LLC, a California limited liability company and
wholly-owned subsidiary of the Company (“CLG”
and
collectively with Legacy, the “Sellers”),
of
even date herewith (the “Purchase
Agreement”).
Pursuant to the Purchase Agreement, the Purchaser has agreed to purchase certain
of the assets used or held for use by the Sellers in the conduct of the Business
(the “Acquisition”).
Capitalized terms used herein without definition have the meanings set forth
in
the Purchase Agreement;
WHEREAS,
as of the date hereof, the Shareholder is the record holder and beneficial
owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”)
of
such number of shares of the outstanding common stock, $0.001 par value, of
the
Company (the “Company
Common Stock”)
as is
indicated on the signature page of this Agreement (the “Existing
Shares”);
and
1.1 Transfer
and Encumbrance.
Other
than as provided herein, until the Expiration Date, Shareholder shall not
hereafter: (a) sell, tender, transfer, pledge, encumber, assign or
otherwise dispose of any of the Existing Shares or New Shares (as defined in
Section 1.2 below); (b) deposit any Existing Shares or New Shares into a
voting trust or enter into a voting agreement or arrangement with respect to
such Existing Shares or New Shares or grant any proxy or power of attorney
with
respect thereto; (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect sale, transfer, pledge,
encumbrance, assignment or other disposition of any Existing Shares or New
Shares; or (d) take any action that would make any representation or
warranty of Shareholder contained herein untrue or incorrect or have the effect
of preventing or disabling Shareholder from performing Shareholder’s obligations
under this Agreement. As used herein, the term “Expiration
Date”
shall
mean the earlier to occur of (i) the Closing, or (ii) such date and time as
the Purchase Agreement shall be terminated pursuant to Article XI
thereof.
1.2 Additional
Purchases.
Shareholder agrees that any shares of capital stock of the Company that
Shareholder purchases or with respect to which Shareholder otherwise acquires
beneficial ownership after the execution of this Agreement and prior to the
Expiration Date (the “New
Shares”)
shall
be subject to the terms and conditions of this Agreement to the same extent
as
if they constituted Existing Shares.
2. Agreement
to Vote Shares.
During
the term hereof, at every meeting of the shareholders of the Company called
with
respect to any of the following matters, and at every adjournment thereof,
and
on every action or approval by written consent of the shareholders of the
Company with respect to any of the following matters, Shareholder, in his,
her
or its capacity as such, shall appear, or otherwise cause the Existing Shares
and any New Shares to be counted as present for purposes of determining a
quorum, and vote, or cause to be voted, the Existing Shares and any New Shares:
(a) in favor of the approval and adoption of the Purchase Agreement and the
Acquisition and any matter necessary for consummation of the Acquisition;
(b) against (i) any proposal for any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company or any Seller under the Purchase
Agreement or which could result in any of the conditions of the obligations
of
the Company or any Seller under the Purchase Agreement not being fulfilled,
and
(ii) any action which could reasonably be expected to impede, interfere
with, delay, postpone or materially adversely affect consummation of the
transactions contemplated by the Purchase Agreement; and (c) in favor of
any other matter necessary for consummation of the transactions contemplated
by
the Purchase Agreement which is considered at any such meeting of shareholders
or in such consent, and in connection therewith to execute any documents which
are necessary or appropriate in order to effectuate the foregoing or, at the
request of Morlex, to permit Morlex to vote such Existing Shares and any New
Shares directly.
3. Irrevocable
Proxy.
By
execution of this Agreement, Shareholder does hereby appoint and constitute
Morlex, until the Expiration Date, with full power of substitution and
resubstitution, as Shareholder’s true and lawful attorney and irrevocable proxy,
to the full extent of the undersigned’s rights with respect to the Existing
Shares and any New Shares, to vote each of such Existing Shares and any New
Shares solely with respect to the matters set forth in Section 2 hereof.
Shareholder intends this proxy to be irrevocable and coupled with an interest
hereafter until the Expiration Date, and hereby revokes any proxy previously
granted by Shareholder with respect to the Existing Shares.
2
4. Representations
and Warranties of the Shareholder.
Shareholder hereby represents, warrants and covenants to Morlex as
follows:
4.1 Authorization.
Shareholder has full power, corporate or otherwise, and authority to execute
and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly executed and delivered by or on behalf of Shareholder and
constitutes a legal, valid and binding obligation of Shareholder, enforceable
against Shareholder in accordance with its terms. The Shareholder has not
granted any proxies relating to, transferred any interests in or otherwise
granted any rights with respect to, the Existing Shares.
(a) The
execution and delivery of this Agreement by Shareholder do not, and the
performance by Shareholder of the obligations under this Agreement and the
compliance by Shareholder with any provisions hereof does not and will not,
(i) conflict with or violate any law, statute, rule, regulation, order,
writ, judgment or decree applicable to Shareholder or the Existing Shares,
(ii) conflict with or violate Shareholder’s charter, bylaws, partnership
agreement or other organizational documents, if applicable, or (iii) result
in any breach of or constitute a default (or an event that with notice or lapse
of time or both would become a default) under, or give to others any rights
of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Existing Shares pursuant to,
any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Shareholder is a party
or
by which Shareholder or the Existing Shares are bound.
(b) The
execution and delivery of this Agreement by Shareholder do not, and the
performance of this Agreement by Shareholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority by Shareholder except for applicable
requirements, if any, of the Exchange Act, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, could not prevent or delay the performance by
Shareholder of his, her or its obligations under this Agreement in any material
respect.
4.3 Ownership
of Shares.
Shareholder: (a) is the beneficial owner of the Existing Shares, which as of
the
date hereof are, and at all times up until the Expiration Date will be, free
and
clear of any and all liens, claims, options, charges, proxies or voting
restrictions or other encumbrances (except such encumbrances, proxies and voting
restrictions as are created in this Agreement); and (b) does not
beneficially own any shares of capital stock of the Company other than the
Existing Shares.
3
4.4 No
Solicitations.
Hereafter until the Expiration Date, Shareholder shall not, nor, to the extent
applicable to Shareholder, shall it permit any of its affiliates to, nor shall
it authorize any partner, officer, director, advisor or representative of,
Shareholder or any of its affiliates to: (a) initiate, solicit or encourage
(including by way of furnishing non-public information or assistance), or enter
into negotiations of any type, directly or indirectly, or enter into a
confidentiality agreement, letter of intent or purchase agreement, merger
agreement or other similar agreement with any person, firm or corporation other
than Morlex or the Purchaser with respect to a sale of any portion of the Assets
or the Business, or a merger, consolidation, business combination, sale of
all
or any substantial portion of the capital stock of any of the Sellers, or the
liquidation or similar extraordinary transaction with respect to any Seller
that
may prevent or materially delay the performance by the Sellers of any of its
obligations under the Purchase Agreement or the consummation of the transactions
contemplated thereby (each, a “Proposed
Transaction”);
(b) solicit proxies or become a “participant” in a “solicitation” (as such
terms are defined in Regulation 14A under the Exchange Act) with respect to
a
Proposed Transaction or otherwise encourage or assist any party in taking or
planning any action that would compete with, restrain or otherwise serve to
interfere with or inhibit the timely consummation of the Acquisition in
accordance with the terms of the Purchase Agreement; (c) initiate a
shareholders’ vote or action by consent of the Company’s shareholders with
respect to a Proposed Transaction; or (d) become a member of a “group” (as
such term is used in Section 13(d) of the Exchange Act) with respect to any
voting securities of the Company that takes any action in support of a Proposed
Transaction
5. Additional
Documents.
Shareholder hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the opinion of Morlex, to carry out the
intent of the Agreement.
6. Consent
and Waiver.
Shareholder hereby gives any consents or waivers that are reasonably required
for the consummation of the Acquisition under the terms of any agreements to
which Shareholder is a party or pursuant to any rights Shareholder may
have.
7. Termination.
This
Agreement shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
8.1 Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of
such
prohibition or unenforceability without invalidating the remaining provisions
of
this Agreement, and any such prohibition or unenforceability in any jurisdiction
will not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by law, the parties hereto waive any
provision of law which renders any such provision prohibited or unenforceable
in
any respect.
8.2 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 either party without the prior written consent of the
other.
4
8.3 Amendment
and Modifications.
This
Agreement may not be modified, amended, altered or supplemented except upon
the
execution and delivery of a written agreement executed by each of the parties
hereto.
8.4 Specific
Performance; Injunctive Relief.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof or was otherwise breached. It is accordingly agreed that the parties
shall be entitled to specific relief hereunder, including, without limitation,
an injunction or injunctions to prevent and enjoin breaches of the provisions
of
this Agreement and to enforce specifically the terms and provisions hereof,
in
any state or federal court in the State of New York, in addition to any other
remedy to which they may be entitled at law or in equity. Any requirements
for
the securing or posting of any bond with respect to any such remedy are hereby
waived.
8.5 Notices.
All
notices, communications and deliveries under this Agreement will be made in
writing signed by or on behalf of the party making the same, will specify the
Section under this Agreement pursuant to which it is given or being made,
and will be delivered personally or by facsimile or other electronic
transmission or sent by registered or certified mail (return receipt requested)
or by next day courier (with evidence of delivery and postage and other fees
prepaid) as follows:
|
If
to Morlex:
|
Morlex,
Inc.
|
|
000
Xxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxx
|
|
|
Facsimile:
212.355.1297
|
|
|
Email:
xxxxxxxxxxxxxx@xxxxx.xxx
|
|
|
with
a copy (which shall not constitute notice) to:
|
|
|
Butzel
Long
|
|
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attn:
Xxxx Xxxxx, Esq.
|
|
|
Facsimile:
212.818.0494
|
|
|
E-mail:
xxxxx@xxxxxx.xxx
|
|
|
If
to the Shareholder:
|
To
the address for notice set
|
|
forth
on the last page hereof
|
|
or
to
such other representative or at such other address of a party as such party
may
furnish to the other party in writing. Any notice which is delivered personally
or by facsimile or other electronic transmission in the manner provided herein
shall be deemed to have been duly given to the party to whom it is directed
upon
actual receipt by such party or its agent. Any notice which is addressed and
mailed in the manner herein provided shall be conclusively presumed to have
been
duly given to the party to which it is addressed at the close of business,
local
time of the recipient, on the fourth business day after the day it is so placed
in the mail (or on the first business day after placed in the mail if sent
by
overnight courier) or, if earlier, the time of actual receipt.
5
8.6 Governing
Law; Jurisdiction and Venue.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to its rules of conflict of laws.
The parties hereto hereby irrevocably and unconditionally consent to and submit
to the exclusive jurisdiction of the courts of the State of New York and of
the
United States of America located in such state (the “New
York Courts”)
for
any litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agree not to commence any litigation relating thereto
except in such courts), waive any objection to the laying of venue of any such
litigation in the New York Courts and agree not to plead or claim in any New
York Court that such litigation brought therein has been brought in any
inconvenient forum.
8.7 Entire
Agreement.
This
Agreement contains the entire understanding of the parties in respect of the
subject matter hereof, and supersedes all prior negotiations and understandings
between the parties with respect to such subject matter.
8.8 Counterparts.
This
Agreement may be executed in two (2) or more counterparts, each of which will
be
deemed an original, and it will not be necessary in making proof of this
Agreement or the terms of this Agreement to produce or account for more than
one
(1) of such counterparts. Facsimile or PDF signatures shall have the same effect
as original signatures.
8.9 Effect
of Headings.
The
section headings herein are for convenience only and shall not affect the
construction of interpretation of this Agreement.
8.10 No
Agreement until Executed.
Irrespective of negotiations among the parties or the exchanging of drafts
of
this Agreement, this Agreement shall not constitute or be deemed to evidence
a
contract, agreement, arrangement or understanding between the parties hereto
unless and until (a) the Board of Directors of Morlex has approved, for purposes
of Colorado law and any applicable provision of its Articles of Incorporation
or
Bylaws, the Acquisition by the Purchaser, (b) the Purchase Agreement is executed
by all parties thereto, and (c) this Agreement is executed by all parties
hereto.
(Remainder
of Page Intentionally Left Blank)
6
|
MORLEX:
|
|
|
By:
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
|
|
Title:
Chief Executive Officer and President
|
|
|
SHAREHOLDER:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Shareholder’s
Address for Notice:
|
|
|
________________________________
|
|
|
________________________________
|
|
|
________________________________
|
|
|
beneficially
owned: _________________
|
|