NGTV VOTING AGREEMENT
Exhibit 4.4
EXECUTION COPY
This Voting Agreement (this “Agreement”) is made and entered into as of February 12, 2004 by
and among NGTV, a California corporation (the “Company”), each of the persons and entities listed
on Schedule A (collectively referred to as the “Investors”), Kourosh Taj and Xxxxx Xxxxxxxx (each
referred to herein as a “Founder” and collectively as the “Founders”) and Xxxx Xxxxxxx LLC, Xxxxx
Xxxxx and Xxxxxxx Xxxxxxxx LLC (each referred to herein as a “Principal Shareholder” and
collectively as the “Principal Shareholders”).
RECITALS
WHEREAS, the Investors are the beneficial owners of common stock of the Company as set forth
in Schedule A;
WHEREAS, the Founders are the beneficial owners of common stock of the Company as set forth on
Schedule B hereto;
WHEREAS, the Principal Shareholders are the beneficial owners of common stock of the Company
as set forth on Schedule C hereto;
WHEREAS, the Investors acquired their shares of common stock in connection with or pursuant to
a financing of up to $7,000,000 of units of the Company each unit consisting of one share of common
stock in the capital of the Company and one-half of one common stock purchase warrant (the
“Financing”); and
WHEREAS, the Founders, the Principal Shareholders and the Investors have agreed to provide for
the future voting of their shares of the Company’s capital stock as set forth below.
NOW, THEREFORE, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. VOTING CONTROL.
1.1 Founder Shares; Principal Shareholder Shares; Investor Shares.
(a) The Founders each will hold all shares of voting capital stock of the Company registered
in their respective names or beneficially owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each of the Founders after the date
hereof (hereinafter collectively referred to as the “Founder
2.
Shares”) subject to, and to vote the
Founder Shares in accordance with, the provisions of this Agreement.
(b) The Principal Shareholders each will hold all shares of voting capital stock of the
Company registered in their respective names or beneficially owned by them as of the date hereof
and any and all other securities of the Company legally or beneficially acquired by each of the
Principal Shareholders after the date hereof (hereinafter collectively referred to as the
“Principal Shareholder Shares”) subject to, and to vote the Principal Shareholder Shares in
accordance with, the provisions of this Agreement.
(c) The Investors each will hold all shares of voting capital stock of the Company registered
in their respective names or beneficially owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each of the Investors after the date
hereof (hereinafter collectively referred to as “Investor Shares”) subject to, and to vote the
Investor Shares in accordance with, the provisions of this Agreement.
1.2 Directors.
(a) On all matters relating to the election of directors of the Company, the Founders,
Principal Shareholders and the Investors will vote, or cause to be voted, all Founder Shares,
Principal Shareholder Shares and Investor Shares held by them (or the holders thereof shall consent
pursuant to an action by written consent of the holders of capital stock of the Company) so as to
elect members of the Company’s Board of Directors as follows:
| (i) | the three (3) nominees selected by a majority in interest of the Founders; | ||
| (ii) | the three (3) nominees selected by a majority in interest of the Principal Shareholders; and | ||
| (iii) | the two (2) nominees selected by a majority in interest of the Investors. |
(b) A quorum for a meeting of the Board of Directors shall be six (6) directors provided that
there is present at least one nominee of the Founders, one nominee of the Principal Shareholders
and one nominee of the Investors. If a quorum is not present at the time appointed for a meeting,
or within such reasonable time thereafter as the directors present may determine, the directors
present may adjourn the meeting to a fixed time (not to less than 7 days following such
adjournment) and place (the “Adjourned Meeting”) but may not transact any other business. At least
7 days prior Notice shall be given of the time and place of the Adjourned Meeting, and the manner
for participating in the Adjourned Meeting telephonically. At any Adjourned Meeting of the Board
of Directors, the directors in attendance regardless of number or constitution thereof, shall be
deemed to constitute a quorum for the transaction of business at such Adjourned Meeting.
(c) Any vote or other action taken to remove a director shall require the consent or vote of a
majority in interest of the shareholders entitled to designate such director, and any vote or other
action to fill any vacancy created by the resignation, removal or death of a
3.
director shall also be
subject to the provisions of Section 1.2(a). The parties to this Agreement agree to vote their
shares consistently with this provision.
(d) Except for those matters set forth in Section 1.2(b) and (e), all matters requiring
approval by the Board of Directors shall require the approval of a majority of the directors
present at a duly constituted meeting at which a quorum or deemed quorum is present as provided for
in Section 1.2(b) hereof.
(e) Notwithstanding Section 1.2(d) hereof, the matters set forth below shall, in addition to
any approval required by the shareholders of the Company by reason of statute contract, or
otherwise, require the approval of not less than 75% of the members of the Board of Directors:
| (i) | any transaction involving the Company and (whether directly or indirectly) a Related Party (as hereinafter defined) of a director (a “Related Party Transaction”); | ||
| (ii) | any voluntary dissolution, winding-up or liquidation of the Company; | ||
| (iii) | any issuance, authorization, designation or obligation to issue, whether by reclassification, recapitalization, or otherwise, of any new class or series of stock or any other securities convertible into, or exchangeable or exercisable for, equity securities of the Company ranking senior to the Common Stock in right of liquidation, voting or dividends or any other right; or | ||
| (iv) | any issuance of equity securities including any securities exercisable, exchangeable or convertible into an equity security representing in excess of 10% of the Company’s outstanding capital stock, provided that the foregoing shall not apply to any such stock issuances in connection with or ancillary to a matter already approved by the Board of Directors including, without limitation, any of the transactions referred to in Section 2.1 including any Corporate Reorganization that does not result in a Change of Control, or any issuance from treasury to an entity purchasing an equity interest in the Company. |
For the purposes of this Section 1.2(e) “Related Party” shall mean a director and any related party
of the director within the meaning of Section 267(b) of the Internal Revenue Code of 1986, as
amended, and any person that directly or indirectly controls, is controlled by, or is under common
control with the person in question, any person who was a Related Party during the previous 12
months or is substantially likely to become a Related Party during the following 6 months, any
person that may receive a financial benefit in the expectation that that person will give a
corresponding financial benefit to a related party or a director, a shareholder or holder of other
securities of the Company, and any person in which the director or a related party of the director
has a material financial interest pursuant to California Corporations Code Section
4.
310(a). As used
in this definition, the term “control” means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a person, whether through
ownership of more than 50% of voting securities, by contract or otherwise, the term “person” means
one or more individuals or any form or forms of business entity, a director includes a person that
is, or within the 12 months preceding the date of the transaction was, not a director, but in
accordance with whose directions or instructions the directors are or were accustomed to act.
1.3 Other Rights. Except as provided by this Agreement or any other agreement entered into in
connection with the Financing, each Founder, Principal Shareholder and Investor shall exercise the
full rights of a holder of capital stock of the Company with respect to the Founder Shares,
Principal Shareholder Shares and the Investor Shares, respectively.
2. Termination.
2.1 This Agreement shall continue in full force and effect from the date hereof through the
earliest of the following dates, on which date it shall terminate in its entirety:
(a) The date of the closing of a firmly underwritten public offering of the common stock
pursuant to a registration statement filed with the Securities and Exchange Commission, and
declared effective under the Securities Act of 1933, as amended;
(b) the date of the closing of a transaction whereby the Company becomes a publicly traded
company on a recognized stock exchange (or similar system for the quoting and public trading of the
Company’s shares) in Canada or the United States whether pursuant to: (i) a final prospectus for
which a receipt has been issued by a securities commission or similar regulatory body in Canada or
pursuant to an effective registration statement filed with the United States Securities and
Exchange Commission; or (ii) pursuant to a reverse take-over, statutory amalgamation, statutory
arrangement or similar transaction involving the Company and which, in each case, results in the
common stock of the Company or the common stock of the resulting issuer being listed on a
recognized stock exchange (or similar system for the quoting and public trading of the Company’s
shares) in Canada or the United States;
(c) the date of the closing of a sale, lease, or other disposition of all or substantially all
of the Company’s assets or the date of a completion of any corporate reorganization, amalgamation,
consolidation or merger of the Company (collectively “Corporate Reorganization”) with or into any
other corporation or other entity or person in which the shareholders of the Company immediately
prior to such Corporate Reorganization own less than fifty percent of the Company’s voting stock
immediately after such Corporate Reorganization or any transaction or series of related
transactions to which the Company is a party in which excess of fifty percent (“Change of Control”)
of the Company’s voting stock is transferred excluding any Corporate Reorganization enacted solely
for the purpose of changing the domicile of the Company; or
(d) the date as of which the parties hereto terminate this Agreement by written consent of a
majority in interest of the Investors, a majority in interest of the Founders, a majority in
interest of the Principal Shareholders and the Company.
5.
3. Legend
3.1 Legend.
(a) Concurrently with the execution of this Agreement, there shall be imprinted or otherwise
placed, on certificates representing the Founder Shares and the Investor Shares a restrictive
legend containing substantially the same wording as set forth below (the “Legend”):
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A VOTING
AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY
PERSON ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY
ALL THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE
RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS.”
(b) The Company agrees that, during the term of this Agreement, it will not remove, and will
not permit to be removed (upon registration of transfer, reissuance or otherwise), the Legend from
any such certificate and will place or cause to be placed the Legend on any new certificate issued
to represent Founder Shares, Principal Shareholder Shares or Investor Shares theretofore
represented by a certificate carrying the Legend.
4. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed under the laws of the
State of California as applied to agreements among California residents entered into and to be
performed entirely within California.
(b) Amendment. Any provision of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively or prospectively),
only by the written consent of (i) as to the Company, only by the Company, (ii) as to the
Investors, by persons holding more than a majority in interest of the common stock, and (iii) as to
the Founders and Principal Shareholders, only by a majority in interest of the Founders and a
majority in interest of the Principal Shareholders. Any amendment or waiver effected in accordance
with clauses (i), (ii), and (iii) of this Section 6(b) shall be binding upon each Investor, its
successors and assigns, the Company, the Founders and the Principal Shareholders.
(c) Assignment of Rights. This Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding upon, the parties hereto and their
respective successors, assigns and legal representatives.
(d) Notices. All notices required or permitted hereunder shall be in writing and shall be
deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by
confirmed facsimile if sent during normal business hours of the recipient; if not, then on the next
business day, (iii) five (5) days after having been sent by registered or certified
6.
mail, return
receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the party to be notified at the address as set forth on the
signature page hereof or at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto, provided that any notice to be given to an Investor
shall be effectively given, if an address for such Investor is not set forth on the signature page
or in Schedule A annexed hereto, if given to:
Standard Securities Capital Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
(e) Severability. In the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not. affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein and the parties hereto shall, to the extent permissible by applicable law, amend
this Agreement so as to make effective and enforceable the intent of this Agreement.
(f) Entire Agreement. This Agreement and the Schedules hereto, along with the Subscription
Agreements and the Agency Agreements and each of the Schedules thereto and the other documents
delivered pursuant thereto, constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
(g) Counterparts. This Agreement may be executed in two or more counterparts, including
counterparts transmitted by facsimile, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Further Assurances. Each party will cooperate fully with the other parties and to execute
such further instruments, documents and agreements and to give such further written assurances as
may be reasonably requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby, and to carry this Agreement into effect.
(i) Interpretation. If any claim is made by a party relating to any conflict, omission or
ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will
be implied because this Agreement was prepared by or at the request of any party or its counsel.
The parties waive any statute or rule of law to the contrary.
(j) Rights Cumulative. Each and all of the various rights, powers and remedies of the parties
hereto will be considered to be cumulative with and in addition to any
7.
other rights, powers and
remedies which such parties may have at law or in equity in the event of the breach of any of the
terms of this Agreement. The exercise or partial exercise of any right, power or remedy will
neither constitute the exclusive election thereof nor the waiver of any other right, power or
remedy available to such party.
(k) Successors. The provisions of this Agreement shall be binding upon the successors in
interest to any of the Founder Shares, Principal Shareholder Shares or Investor Shares. The Company
shall not permit the transfer of any of the Founder Shares, Principal Shareholder Shares or
Investor Shares on its books or issue a new certificate representing any of the Founder Shares,
Principal Shareholder Shares or Investor Shares unless and until the person to whom such security
is to be transferred shall have executed a written agreement, substantially in the form of this
Agreement, pursuant to which such person becomes a party to this Agreement and agrees to be bound
by all the provisions hereof as if such person were a Founder, Principal Shareholder or Investor,
as applicable.
(l) Titles and Subtitles. The titles of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8.
IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement as of the
date first above written.
| COMPANY: | ||||
| NGTV | ||||
By:
|
/s/ Kourosh Taj
Title: CEO |
|||
FOUNDERS: |
||||
/s/ Xxxxxxx Xxx |
||||
Xxxxxxx Xxx
|
Witness | |||
/s/ Xxxxx Xxxxxxxx |
||||
Xxxxx Xxxxxxxx
|
Witness | |||
PRINCIPAL SHAREHOLDERS: |
||||
XXXX XXXXXXX LLC
|
XXXXXXX XXXXXXXX LLC | |||
Per: /s/ Xxxx Xxxxxxx
|
Per: /s/ Xxxxxxx Xxxxxxxx | |||
Address
|
Address | |||
/s/ Xxxxx Xxxxx |
||||
Xxxxx Xxxxx
|
Witness | |||
9.
INVESTORS: |
||||
BTR GLOBAL GROWTH TRADING LIMITED
|
AEGON CAPITAL MANAGEMENT INC. | |||
Per: /s/ Xxxxx Xxx
|
Per: /s/ Xxxx Xxx | |||
Xxxxx Xxx, Director
|
Xxxx Xxx, Vice President, P.M. | |||
BTR GLOBAL ARBITRAGE TRADING
LIMITED
|
BLUMONT STRATEGIC PARTNERSHIP | |||
Per: /s/ Xxxxx Xxx
|
Per: /s/ | |||
Xxxxx Xxx, Director |
||||
BTR GLOBAL OPPORTUNITY TRADING
LIMITED
|
STANDARD MERCANTILE BANCORP LP | |||
Per: /s/ Xxxxx Xxx
|
Per: /s/ | |||
Xxxxx Xxx, Director |
||||
HJG PARTNERSHIP
|
XXXXX MANAGEMENT INC. | |||
Per: /s/
|
Per: /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx, President | ||||
CASURINA PERFORMANCE FUND
|
FRONT STREET CANADIAN HEDGE | |||
Per: /s/
|
Per: /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx, Vice-President | ||||
CASURINA LIMITED PARTNERSHIP
|
FRONT STREET INVESTMENT MANAGEMENT INC. | |||
Per: /s/
|
Per: /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx, Vice-President | ||||
MODENA INVESTMENTS INC.
|
1274639 ONTARIO LTD. | |||
Per: /s/ Xxxxx DeFrancesio
|
Per: /s/ | |||
Xxxxx DeFrancesio, President
|
||||
FOUNTAINHEAD CAPITAL ADVISORS LTD. |
||||
Per: /s/ Emlyn David |
||||
Emlyn David, President |
||||
/s/ Xxxxxx Xxxxxxx |
||||
Xxxxxx Xxxxxxx
|
Witness | |||
/s/ Xxxxxx Xxxxxx |
||||
Xxxxxx Xxxxxx
|
Witness | |||
/s/ Xxxxx Xxxxxx |
||||
Xxxxx Xxxxxx
|
Witness |
10.
/s/ Xxxxxxx Xxxxx |
||||
Xxxxxxx Xxxxx
|
Witness |
Schedule A
INVESTORS
| Number of Shares | |||||||||
| Name | owned or controlled | Address | |||||||
BTR Global Growth Trading Limited |
286,250 | ||||||||
BTR Global Arbitrage Trading
Limited |
4,411,750 | ||||||||
BTR Global Opportunity Trading
Limited |
1,860,000 | ||||||||
Aegon Capital Management Inc. |
5,738,000 | ||||||||
Blumont Strategic Partnership |
000,000 | ||||||||
Xxxxx Xxxxxx Xxxxxxxx Hedge |
196,740 | ||||||||
Front Street Investment
Management Inc. |
459,060 | ||||||||
Casurina Performance Fund |
688,590 | ||||||||
Casurina Limited Partnership |
1,803,450 | ||||||||
Standard Mercantile Bancorp LP |
1,639,000 | ||||||||
HJG Partnership |
2,787,000 | ||||||||
12.
| Name | Number of Shares owned or controlled |
Address | ||||||
Modena Investments Inc. |
10,944,680 | |||||||
Xxxxxx Xxxxxxx |
82,000 | |||||||
Xxxxx Management Inc |
98,360 | |||||||
Xxxxxx Xxxxxx |
164,000 | |||||||
1274639 Ontario Ltd. |
82,000 | |||||||
Xxxxx Xxxxxx |
129,460 | |||||||
Xxxxxxx Xxxxx |
98,000 | |||||||
Fountainhead Capital Advisors Ltd. |
329,000 | |||||||
Schedule B
FOUNDER SHARES
| Name of Founder | Shares of Common Stock | |||
Kourosh Taj |
7,800,000 | |||
Xxxxx Xxxxxxxx |
14,505,000 | |||
Schedule C
PRINCIPAL SHAREHOLDER SHARES
| Name of Principal Shareholder | Shares of Common Stock | Common Stock Options | ||||||
Xxxx Xxxxxxx LLC |
5,623,977 | 2,280,607 | ||||||
Xxxxx Xxxxx |
5,623,977 | 2,280,607 | ||||||
Xxxxxxx Xxxxxxxx LLC |
5,623,977 | 2,280,607 | ||||||
