STOCKHOLDERS SUPPORT AGREEMENT
STOCKHOLDERS
SUPPORT AGREEMENT
STOCKHOLDERS
SUPPORT AGREEMENT, dated as of February 11, 2007 (this “Agreement”) by and among
between GoFish Corporation, a Nevada corporation (“Buyer”) and each of the
stockholders whose names appear on the signature page of this Agreement (each
a
“Major Stockholder” and, collectively, the “Major Stockholders”).
WHEREAS,
as of the date hereof, each Major Stockholder represents and warrants to Buyer
that such Major Stockholder owns of record and beneficially and has good, valid
and marketable title to, free and clear of any Lien, proxy, voting restriction,
limitation on disposition, adverse claim of ownership or use or encumbrance
of
any kind, other than pursuant to this Agreement, and has the sole power to
vote
and full right, power and authority to sell, transfer and deliver, the number
of
shares of common stock, par value $0.001 per share (“Company Common Stock”), of
Bolt, Inc., a/k/a Bolt Media, Inc.,
a
Delaware corporation (the “Company”), as set forth opposite such Major
Stockholder’s name on Exhibit
A
hereto
(all such shares of Company Common Stock and any shares of Company Common Stock
of which ownership of record or the power to vote is hereafter acquired by
the
Stockholders prior to the termination of this Agreement, including shares of
Company Common Stock issuable upon the exercise of options to purchase Company
Common Stock, being referred to herein as the “Shares”); and
1. Voting
of Shares.
At
every meeting of stockholders of the Company called with respect to any of
the
following, and at every adjournment thereof, and on every action or approval
by
written consent of stockholders of the Company with respect to any of the
following, each Major Stockholder shall vote the Shares:
(a) in
favor
of approval of the Merger, the execution and delivery by the Company of the
Merger Agreement and the adoption and approval of the terms thereof and in
favor
of each of the other actions contemplated by the Merger Agreement and any action
required in furtherance hereof and thereof;
(b) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger and the Merger Agreement; and
(c) against
any of the following actions (other than those actions that relate to the Merger
and the transactions contemplated by the Merger Agreement): (i) any merger,
consolidation, business combination, sale of assets, reorganization or
recapitalization with any party, in each case involving the Company or any
Subsidiary; (ii) any sale, lease or transfer of any significant part of the
assets of the Company or any subsidiary; (iii) any reorganization,
recapitalization, dissolution, liquidation or winding up of the Company;
(iv) any material change in the capitalization of the Company or the
Company’s corporate structure; or (v) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay, postpone,
discourage or adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement, provided, however, that nothing in this
Agreement shall be deemed to prevent any Major Stockholder from voting or
providing a written consent in favor of a Superior Offer; provided, that nothing
in this Agreement shall be deemed to eliminate, reduce, impair or otherwise
affect Buyer’s remedies under the Merger Agreement if the Merger Agreement is
terminated due to a Superior Offer.
2. Transfer
of Shares.
From
the date of this Agreement through the Termination Date, each Major Stockholder
agrees that such Major Stockholder shall not, directly or indirectly, (a) sell,
assign, transfer (including by operation of law), permit any lien to attach,
pledge, dispose of or otherwise encumber any of the Shares or otherwise agree
to
do any of the foregoing, (b) deposit any Shares into a voting trust or enter
into a voting agreement or arrangement or grant any proxy or power of attorney
with respect thereto that is inconsistent with this Agreement, (c) enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect acquisition or sale, assignment, transfer (including by
operation of law) or other disposition of any Shares, or (d) take any action
that would make any representation or warranty of such Major Stockholder herein
untrue or incorrect in any material respect or have the effect of preventing
or
disabling the Major Stockholder from performing such Major Stockholder’s
obligations hereunder.
3. Representations
and Warranties of the Stockholders.
Each
Major Stockholder hereby severally, but not jointly, represents and warrants
to
Buyer as follows:
3.1 Such
Major Stockholder hereby repeats and incorporates herein by this reference
the
representations and warranties of such Major Stockholder set forth in the first
recital of the preamble to this Agreement.
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3.2 Such
Major Stockholder has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Major Stockholder and, assuming the due authorization,
execution and delivery by Buyer and that this Agreement constitutes legal,
valid
and binding obligation of Buyer, constitutes the legal, valid and binding
obligation of such Major Stockholder, enforceable against such Major Stockholder
in accordance with its terms, except to the extent that enforcement may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium, or
other laws affecting the enforcement of creditor’s rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
3.3 The
execution and delivery of this Agreement by such Major Stockholder do not,
and
the performance of this Agreement by such Major Stockholder will not, result
in
any breach of or constitute a default (or an event which, with notice or lapse
of time or both, would become a default) under, or give to others any right
of
termination, amendment, acceleration or cancellation of, or result in the
creation of a Lien or other encumbrance on any property or asset of such Major
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation.
3.4 The
execution and delivery of this Agreement by such Major Stockholder do not,
and
the performance of this Agreement by such Major Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, except for applicable requirements,
if any, of the Exchange Act.
3.5 The
failure of the spouse, if any, of such Major Stockholder to be a party or
signatory to this Agreement shall not (i) prevent such Major Stockholder from
performing such Major Stockholder’s obligations and consummating the
transactions contemplated hereunder, or (ii) prevent this Agreement from
constituting the legal, valid and binding obligation of such Major Stockholder
in accordance with its terms.
4. No
Solicitation of Transactions.
None of
the Stockholders shall, directly or indirectly, through any officer, director,
agent or otherwise, (a) solicit, initiate or knowingly encourage the submission
of, any other offer (a “Competing Proposal”), or (b) participate in any
discussions or negotiations regarding, or furnish to any person, any non-public
information with respect to, or otherwise cooperate in any way with respect
to,
or assist or participate in, facilitate or encourage, any unsolicited proposal
that constitutes, or may reasonably be expected to lead to, a competing offer;
provided, however, that nothing in this Section 4
shall
prevent the Major Stockholder, in such Major Stockholder’s capacity as a
director or executive officer of the Company from participating in any Board
discussions, negotiations or votes regarding any Superior Offer, or engaging
in
any activity permitted pursuant to Section 4.3(b)(i) or (ii) of the Merger
Agreement and provided, further, however, that nothing in this Agreement shall
be deemed to prevent any Major Stockholder from voting or providing a written
consent in favor of a Superior Offer; provided, further, that nothing in this
Agreement shall be deemed to eliminate, reduce, impair or otherwise affect
Buyer’s remedies under the Merger Agreement if the Merger Agreement is
terminated due to a Superior Offer. Each Major Stockholder shall, and shall
direct or cause such Major Stockholder’s representatives and agents to,
immediately cease and cause to be terminated any discussions or negotiations
with any parties that may be ongoing with respect to any Competing
Proposal.
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5. Directors
and Officers.
Notwithstanding any provision of this Agreement to the contrary, nothing in
this
Agreement shall (or require any Major Stockholder to attempt to) limit or
restrict any designee of a Major Stockholder who is a director or officer of
the
Company from acting in such capacity or voting in such person’s sole discretion
on any matter (it being understood that this Agreement shall apply to each
Major
Stockholder solely in such Major Stockholder’s capacity as a stockholder of the
Company).
6. No
Ownership Interest.
Nothing
contained in this Agreement shall be deemed to vest in Buyer any direct or
indirect ownership or incidence of ownership of or with respect to any Shares.
All rights, ownership and economic benefits of and relating to the Shares shall
remain vested in and belong to the Major Stockholders, and Buyer shall have
no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of the Company or exercise any
power or authority to direct any Major Stockholder in the voting of any of
the
Shares, except as otherwise provided herein.
7. Termination.
This
Agreement shall terminate and shall have no further force or effect as of the
earliest to occur of (i) such date and time as the Merger Agreement shall have
been terminated pursuant to Article VII thereof and (ii) such date and time
as
the Merger shall become effective in accordance with the terms and provisions
of
the Merger Agreement.
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8. Miscellaneous.
Except
as otherwise provided herein, all costs and expenses incurred in connection
with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the transactions
contemplated hereby are consummated; all notices, requests, claims, demands
and
other communications hereunder shall be in writing and shall be given (and
shall
be deemed to have been duly given upon receipt) by delivery in person, by
overnight courier, by facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at their addresses
as specified on the signature pages of this Agreement; if any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of
this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party; this Agreement
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof; this Agreement shall not be assigned (whether pursuant to a merger,
by
operation of law or otherwise), except that Buyer may assign all or any of
its
rights and obligations hereunder to any affiliate of Buyer, provided, however,
that no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations; this Agreement
shall be binding upon and inure solely to the benefit of each party hereto,
and
nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement; 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 and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity; this Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in that State; this Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which
when
executed shall be deemed to be an original but all of which taken together
shall
constitute one and the same agreement; from time to time, at the request of
Buyer, in the case of any Major Stockholder, or at the request of the Major
Stockholders, in the case of Buyer, and without further consideration, each
party shall execute and deliver or cause to be executed and delivered such
additional documents and instruments and take all such further action as may
be
reasonably necessary or desirable to consummate the transactions contemplated
by
this Agreement; EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature
Page Follows]
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GOFISH CORPORATION | ||
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By: | /s/ Xxxxxxx Xxxxxxx | |
Name:
Xxxxxxx Xxxxxxx
Title:
Chief Executive Officer
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Major
Stockholder
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/s/ Xxxxx Xxxxx | ||
Xxxxx
Xxxxx
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Major
Stockholder
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/s/ Xxxxx Xxxxx | ||
Xxxxx Xxxxx |
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Major Stockholder | ||
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/s/ Xxx Xxxxxx | ||
Xxx Xxxxxx |
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