VOTING AGREEMENT
Voting
Agreement (the “Agreement”)
dated
as of March 31, 2008, by and among Legend Media, Inc., a Nevada corporation
(the
“Company”), ARC
Investment Partners LLC, Tapirdo Enterprises LLC, Loeb Enterprises II LLC,
Xxxxxxx Dash, Aries Equity Corp. and Nalp Capital LLC (together, the
"Majority
Shareholders"),
and
Maoming China Fund, a limited partnership (the "Purchaser").
The
Company, the Majority Shareholders and the Purchaser are sometimes collectively
referred to herein as the “Parties.”
A. The
Company and the Purchaser are parties to a Securities Purchase Agreement, dated
as of March 31, 2008 (the "Purchase
Agreement"),
whereby the Purchaser has agreed to purchase 1,250,000 shares
of
the Company's Series A Preferred Stock, par value $0.001 per share
("Preferred
Stock"),
and
600,000 warrants ("Warrants")
to
purchase shares of the Company's Common Stock, par value $0.001 per share
("Common
Stock"),
at
the First Closing, and 833,333 shares of Preferred Stock and 400,000 Warrants
at
the Second Closing.
B. The
execution of this Agreement by the Parties is a condition precedent to the
obligations of the Company and the Purchaser pursuant to the Purchase
Agreement.
C. The
Majority Shareholders will derive a substantial benefit upon the consummation
and performance of the Purchase Agreement by the Company and the Purchaser.
D. Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Purchase Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt of which are hereby acknowledged, the Parties hereto hereby agree
as
follows:
1. Election
to the Company's Board
of Directors.
(a) Upon
the First
Closing and for so long as the Purchaser owns Preferred Stock (or, after their
conversion, Common Stock) representing at least 5% of the outstanding Common
Stock of the Company (on a fully-diluted basis), the Majority Shareholders
each
agree to vote their shares of Common Stock of the Company over which they have
voting control and to take all other necessary actions within their control
(whether as a shareholder, director or officer of the Company or otherwise,
and
including without limitation attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu
of meetings), and the Company shall take all necessary actions within its
control (including, without limitation, calling annual and special board and
shareholder meetings), so that
one individual designated by the Purchaser (the "Purchaser
Designee")
shall be elected to the board of directors of the Company (the "Board
of Directors").
(b) If
the Purchaser fails to designate the Purchaser Designee pursuant to Section
1(a)
or
if the director designated by the Purchaser resigns or otherwise is no longer
serving on the Board of Directors, such directorship shall remain vacant until
the Purchaser designates an individual to serve on the Board of
Directors.
(c) The
Purchaser shall be entitled to remove the Purchaser Designee from the Board
of
Directors and shall be entitled to designate a new Purchaser Designee to fill
such vacancy.
The Majority Shareholders acknowledge and agree that the Purchaser Designee
shall only be removed with the prior written consent (or affirmative vote)
of
the Purchaser.
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(d) To
the extent that any provision of the Company's Articles of Incorporation, as
amended from time to time (the "Articles
of Incorporation"),
or Bylaws is inconsistent with the provisions of this Agreement, the Purchaser,
the Company and the Majority Shareholders agree to take all actions necessary
to
effect such amendments to the Articles of Incorporation or Bylaws as may be
necessary and appropriate to give full effect to the provisions of this
Agreement.
2. No
Liability for Election of Purchaser Designee.
None of
the Company, the Majority Shareholders or any officer, director, shareholder,
partner, employee or agent of such Party, makes any representation or warranty
as to the fitness or competence (or will have any liability for the election)
of
the Purchaser Designee to serve on the Board of Directors of the Company by
virtue of such Party’s execution of this Agreement or by the act of such Party
in voting for such Purchaser Designee pursuant to this Agreement.
3. Grant
of Proxy.
Should
the provisions of this Agreement be construed to constitute the granting of
proxies, such proxies shall be deemed coupled with an interest and are
irrevocable for the term of this Agreement.
4. Specific
Enforcement.
The
parties acknowledge and agree that money damages are not an adequate remedy
for
violations of this Agreement and that application may be made to a court of
competent jurisdiction for specific performance, and that any breach or
threatened breach of this Agreement shall be the proper subject of a temporary
or permanent injunction or restraining order, or such other relief as such
court
may deem just and proper in order to enforce this Agreement or prevent any
violation hereof, including without limitation requiring a formal voting trust
arrangement. Each Party hereto waives any objection to the imposition of such
relief and any claim or defense that there is an adequate remedy at law for
such
breach or threatened breach.
5. Manner
of Voting.
The
voting of shares pursuant to this Agreement may be effected in person, by proxy,
by written consent, or in any other manner permitted by applicable
law.
6. Other
Matters.
This
Agreement shall not affect the rights of the Majority Shareholders with respect
to voting on any matters on which shareholders of the Company are entitled
to
vote, whether granted by law or by the Articles of Incorporation, except with
respect to the election of directors of the Company provided for in Section
1
hereof.
7. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the successors and permitted assigns of the Parties. The Purchaser shall not
be
entitled to assign its rights hereunder (whether in connection with any transfer
of its Common Stock, Preferred Stock, Warrants or otherwise) without the prior
written consent of each of the Majority Shareholders.
8. Covenants
of the Company.
The
Company agrees to use commercially reasonable efforts to provide that the
parties to this Agreement enjoy the benefits of this Agreement. Such actions
include, without limitation, the nomination of the Purchase Designee as provided
above. The Company will not, by any voluntary action, avoid or seek to avoid
the
observance or performance of any of the terms to be performed under this
Agreement by the Company, but will at all times in good faith assist in the
carrying out of all the provisions of this Agreement and in the taking of all
such actions as may be reasonably necessary to protect the rights of the parties
to this Agreement against impairment.
2
9. Miscellaneous
Provisions.
(a) Governing
Law; Amendments.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without regard to its conflicts of laws, rules or provisions.
Any term hereof may be amended and the observance of any term hereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively) only with the written consent of each of the Majority
Shareholders and the Purchaser. Any amendment or waiver so effected shall be
binding upon the Company, the Majority Shareholders, the Purchaser and each
of
their successors and permitted assigns.
(b) Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
(c) Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject hereof 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.
(d) Term.
This
Agreement shall terminate and be of no further force or effect upon the earlier
to occur of: (i) December 31, 2008, if the First Closing has not occurred by
such date; (ii) if the First Closing has occurred on or before December 31,
2008, such date thereafter that the Purchaser no longer owns Preferred
Stock (or, after their conversion, Common Stock) representing at least 5% of
the
outstanding Common Stock of the Company (on a fully-diluted basis); (iii) the
consummation
by the Company of a transaction or series of related transactions deemed to
be a
liquidation, dissolution or winding up of the Company pursuant to the Company’s
Articles of Incorporation (including the Certificate of Designation); or (iv)
the written consent of each of the Majority Shareholders and the Purchaser.
(e) Notices.
All
notices and other communications required or permitted hereunder shall be in
writing, shall be effective when given, and shall in any event be deemed to
be
given: (i) upon delivery, if delivered by hand; (ii) one business day after
the
business day of deposit for overnight delivery with Federal Express or similar
overnight courier, freight prepaid; or (iii) the business day of delivery by
facsimile transmission with oral confirmation of receipt, if deliverable by
facsimile transmission. All communications shall be sent to the Party to be
notified at the address as set forth on the signature page of the Purchase
Agreement, the address set forth in the Company’s stock records, if the Party is
not a signatory to the Purchase Agreement, or at such other address as such
Party may designate by five days advance written notice to the other parties
hereto.
3
(f) Captions.
The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and provisions
hereof.
(g) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
date
first above written.
| COMPANY: | ||
| LEGEND MEDIA, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Dash | |
|
Name: Xxxxxxx Dash |
||
|
Title:
Chief
Executive Officer
|
||
| MAJORITY SHAREHOLDERS: | ||
| |
|
|
| By: | /s/ Xxxxxxx Dash | |
|
Name: Xxxxxxx
Dash
Title:
Individual
|
||
| ARC Investment Partners, LLC: | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name: Xxxx
Xxxxxxx
Title:
Chief Executive Officer
|
||
| Tapirdo Enterprises, LLC: | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name: Xxxx
Xxxxxxx
Title:
Manager
|
||
| Loeb Enterprises II LLC: | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Name: Xxxxxxx
Xxxxx
Title:
COO
|
||
| Nalp Capital, LLC: | ||
| |
|
|
| By: | /s/ illegible | |
|
Name: illegible
Title:
illegible
|
||
| Aries Equity Corp.: | ||
| |
|
|
| By: | /s/ illegible | |
|
Name: illegible
Title:
illegible
|
||
| PURCHASER: | ||
| MAOMING CHINA FUND | ||
| |
|
|
| By: | /s/ Julien Moulin | |
|
Name: Julien Moulin |
||
|
Title:
Director
|
||
