VOTING AGREEMENT
EXHIBIT
10.1
This
VOTING AGREEMENT (the
“Agreement”) is
made and entered into as of March 16, 2010, by and among KIT digital, Inc., a Delaware
corporation (the “Company”), MK Capital SBIC, L.P., a
Delaware limited partnership (“MK SBIC”), and MK Capital, L.P., a Delaware
limited partnership (“MK Capital”), MK Capital Management SBIC,
LLC (“SBIC
GP”) and MK Capital
Management, LLC (“MK
GP”). The Company, MK SBIC, MK Capital, SBIC GP and MK GP are
individually referred to herein as a “Party” and are
collectively referred to herein as the “Parties.” The
Company’s Board of Directors is referred to herein as the “Board.”
WITNESSETH:
WHEREAS, the MK SBIC and MK
Capital are principal stockholders in Multicast Media Technologies, Inc., a
Delaware corporation (“Seller”);
and
WHEREAS, SBIC GP is the
general partner of MK SBIC and MK GP is the general partner of MK Capital;
and
WHEREAS, MK SBIC, MK Capital,
SBIC GP and Mk GP wish to merge (the “Merger”) the Company
with a wholly-owned subsidiary of the Company pursuant to a Merger Agreement
dated on or about the date hereof; and
WHEREAS, it is a condition to
the Merger that the Parties enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Agreement to
Vote. Each of MK SBIC, MK Capital, SBIC GP and MK GP (each a
“MK Party” and
collectively, the “MK
Parties”) agree to vote, or cause to be voted, all shares of the Common
Stock of the Company (“Company Common
Stock”) beneficially owned by any of them in accordance with the
recommendation of the Board to the stockholders of the Company with respect to
any merger, acquisition or other transaction submitted to a vote of the
stockholders of the Company where the completion of such transaction(s) would
result in a Change of Control (as defined below) of the
Company. Beneficial ownership of Company Common Stock shall be
determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). For purposes hereof a “Change of Control” of
the Company shall mean (a) a transaction or series of related transactions which
result in the acquisition of all or a majority of the capital stock of the
Company by any person or affiliated group of persons (as such terms are used in
the Exchange Act), (b) any merger, consolidation or other transaction in which
the Company is not the surviving entity, (c) any other transaction where a group
of persons have the right to cause the nomination or election of a majority of
the Board (excluding for purposes of this clause (c) persons who beneficially
own more than 5% of the Company’s Common Stock prior to the date
hereof).
2. Legends. All
Company Common Stock issued to any MK Party as part of the Merger shall bear
such legends as reasonably requested by the Company reflecting the restrictions
set forth herein. The foregoing notwithstanding, no legend will need
to be placed on any certificates of any transferee of a MK Party even if they
agree to be bound to this Agreement and otherwise assume the responsibilities
and obligations of a MK Party hereunder.
3. Covenant of the MK
Parties. None of the MK Parties will, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
performed hereunder by such MK Party; provided that this
covenant shall not limit the ability of any MK Party to sell or transfer any
Company Common Stock for reasons other than avoiding its obligations
hereunder.
4. Specific Enforcement and
Disclaimer of Company Liability. It is agreed and understood
that monetary damages would not adequately compensate the Company for the breach
of this Agreement by any of the MK Parties, that this Agreement shall be
specifically enforceable, and that any breach or threatened breach of this
Agreement shall be the proper subject of a temporary or permanent injunction or
restraining order. Further, each of the MK Parties waives any claim
or defense that there is an adequate remedy at law for such breach or threatened
breach or any requirement that the Company post a bond in connection with any
injunctive or similar relief. The Company shall have no liability
resulting from any of the MK Parties voting in accordance with the requirements
of this Agreement.
5. 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.
6. Notices. All
notices and other communications given or made pursuant hereto 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
electronic mail or 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 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 respective parties at the addresses set forth on the signature pages
attached hereto (or at such other addresses as shall be specified by notice
given in accordance with this Section 5).
7. Termination. With
respect to any MK Party, this Agreement shall terminate at such time as it does
not beneficially own any shares of Company Common Stock. No
termination of this Agreement will relieve any MK Party of liability for its
breach of this Agreement.
8. 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.
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9. Amendments and
Waivers. 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 (i) the
Company; (ii) the holders of a majority of the then outstanding shares of
Company Common Stock beneficially owned by the MK Parties. Any
amendment or waiver so affected shall be binding upon all the Parties
hereto.
10. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
11. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of law principles thereof.
12. Entire
Agreement. This Agreement is intended to be the sole agreement
of the Parties as it relates to the subject matter hereof and supersede all
other agreements of the Parties relating to the subject matter
hereof.
13. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. A facsimile signature shall be deemed an
original.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first above
written.
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By:
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/s/ Kaleil Xxxxx Xxxxxx
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Name:
Kaleil Xxxxx Tuzman
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Title:
Chairman and Chief Executive Officer
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Address:
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first above
written.
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MK
CAPITAL SBIC, L.P.
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By:
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/s/ Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Principal
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Address:
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MK
CAPITAL MANAGEMENT SBIC, LLC
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By:
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/s/ Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Principal
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Address:
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first above
written.
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MK
CAPITAL, L.P.
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By:
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/s/ Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Principal
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Address:
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MK
CAPITAL MANAGEMENT, LLC
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By:
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/s/ Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Principal
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Address:
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