VOTING AGREEMENT
Exhibit 10.5
This
Voting Agreement (this "Agreement"), dated as of
December 1, 2016, is entered into by and among Majesco
Entertainment Company, a Delaware corporation (the
“Parent”),
Denver Lough (“Lough”), Xxxxxx Xxxxxxx
(“Xxxxxxx”), and
Polarityte, Inc., a Nevada corporation (the “Company”), and the undersigned
stockholders ("Stockholders") of
Parent.
WHEREAS, concurrently with or following
the execution of this Agreement, the Parent, Majesco Acquisition
Corp., a Nevada corporation and wholly-owned subsidiary of the
Parent (the “Purchaser”), Lough and Company have entered, or
will enter, into an Agreement and Plan of Reorganization (as the
same may be amended from time to time, the "Merger Agreement"),
following, among other things, for the sale, assignment, transfer
and conveyance to the Company of the right, title and interest in
and to the Purchased Intellectual Property (as defined in the
Merger Agreement) and the acquisition of the Company by Purchaser
and issuance of Parent securities to Lough and Xxxxxxx pursuant to
the terms and conditions of the Merger Agreement (the
“Acquisition”);
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement, the Parent has
required that Lough and Xxxxxxx and the Stockholders execute and
deliver this Agreement; and
WHEREAS, in order to induce Lough and
Company to enter into the Merger Agreement, the Stockholders are
willing to make certain representations, warranties, covenants and
agreements with respect to the shares of common stock, par value
$0.001 per share, of Parent ("Parent Common Stock"),
Series A Preferred Stock ("Parent
Series A Preferred Stock"), Series B Preferred Stock
("Parent Series B Preferred
Stock") and Series C Preferred Stock ("Parent Series C Preferred Stock" and,
together with the Parent Common Stock, the Parent Series A
Preferred Stock and the Parent Series B Preferred Stock,
Parent Capital Stock")
beneficially owned by the Stockholders and set forth below
Stockholders’ signature on the signature page hereto (the
"Original
Shares" and, together with any additional shares of Parent
Capital Stock acquired by the Stockholders pursuant to Section 4 hereof, the "Shares").
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
1.
Definitions.
For
purposes of this Agreement, capitalized terms used and not defined
herein shall have the respective meanings ascribed to them in the
Merger Agreement.
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2.
Agreement
to Vote Shares.
Stockholders agree
during the term of this Agreement to vote the Shares at any annual
or special meeting of stockholders of Parent, or execute a written
consent or consents if stockholders of Parent are requested to vote
their Shares through the execution of an action by written consent
in lieu of any such annual or special meeting of stockholders of
Parent, and to cause any holder of record of Shares to vote: (i) in
favor of: (1) approval of the Acquisition and the issuance of
Preferred E Stock and Parent Stock into which convertible in such
amount that exceeds 19.99% of the Parent’s Common Stock
outstanding prior to the Effective Date pursuant to NASDAQ Rule
5635 as contemplated in the Merger Agreement (the
“Acquisition
Consideration”) and the transactions contemplated
thereunder, at every meeting (or in connection with any action by
written consent) of the stockholders of Parent at which such
matters are considered and at every lawful adjournment or
postponement thereof and (2) approval of any proposal to adjourn or
postpone the meeting to a later date during the term of this
Agreement, if there are not sufficient votes for the approval of
the Acquisition Consideration and transactions contemplated in the
Merger Agreement on the date on which such meeting is held; (ii)
against any action, proposal, transaction or agreement which could
reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
Parent under the Merger Agreement or of the Stockholders under this
Agreement or which would reasonably be expected to result in any of
the conditions to Parent’s obligations under the Merger
Agreement not being fulfilled. This Agreement is intended to bind
the Stockholders as stockholders of Parent only with respect to the
specific matters set forth herein. Except as set forth in clauses
(i) and (ii) of this Section 2, the Stockholders shall not be
restricted from voting in favor of, against or abstaining with
respect to any other matter presented to the stockholders of
Parent.
3.
No Voting Trusts or Other
Arrangement.
The
Stockholders agree that during the term of this Agreement, the
Stockholders will not, and will not permit any entity under
Stockholders’ control to, deposit any of the Shares in a
voting trust, or grant any proxies with respect to the Shares or
subject any of the Shares to any arrangement with respect to the
voting of the Shares in favor of the matters required hereunder,
except as provided herein.
4.
Additional Shares.
The
Stockholders agree that all Shares that the Stockholders purchase
or acquire the right to vote or otherwise acquire beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) after
the execution of this Agreement shall be subject to the terms of
this Agreement and shall constitute Shares for all purposes of this
Agreement until termination of this Agreement.
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5.
Documentation and
Information.
Except
as required by applicable law, the Stockholders shall not make any
public announcement regarding this Agreement without the prior
written consent of the Company; provided, that if the Stockholder
determines, that a public announcement is required by applicable
law, rule or regulation, then the Stockholders shall use their
commercially reasonable efforts to provide the Company with
reasonable advance notice of such determination and reasonable time
to comment on such announcement in advance of such issuance. The
Stockholders consent to and hereby
authorize Parent to publish and disclose in all documents and
schedules filed with the SEC to the extent required by law, and any
press release or other disclosure document that Parent reasonably
determines to be necessary, in
connection with the transactions contemplated by the Merger
Agreement, and in each case only to the extent so required or
necessary, the Stockholders’ identity and ownership of
the Shares, the existence of this Agreement and the nature of the
Stockholders’ commitments and obligations under this
Agreement, and the Stockholders acknowledges that the Parent may,
in its sole discretion, file a form hereof with the SEC or any
other governmental body during the term of this Agreement and only
to the extent required by law. The Company, Lough and Xxxxxxx agree
that except as required by law, the Company, Lough and Xxxxxxx
shall not make any public announcement which indicates that the
Stockholders have entered into this Agreement without the prior
written consent of the Stockholders.
6.
Termination.
This
Agreement shall terminate automatically without a need for any
further action upon the earliest to occur of (i) approval of the
matters contemplated herein by stockholders in accordance with
NASDAQ Rule 5635 and (ii) the date on which the Merger Agreement is
terminated in accordance with its terms or amended in a manner
adverse to the Stockholder.
7.
Specific
Performance.
Each
party hereto acknowledges that it will be impossible to measure in
money the damage to the other party if a party hereto fails to
comply with any of the obligations imposed by this Agreement, that
every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at
law or damages. Accordingly, each party hereto agrees that
injunctive relief or other equitable remedy, in addition to
remedies at law or damages, is the appropriate remedy for any such
failure and will not oppose the seeking of such relief on the basis
that the other party has an adequate remedy at law. Each party
hereto agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection
with the other party's seeking or obtaining such equitable
relief.
8.
Entire Agreement.
This
Agreement supersedes all prior agreements, written or oral, between
the parties hereto with respect to the subject matter hereof and
contains the entire agreement between the parties with respect to
the subject matter hereof. This Agreement may not be amended or
supplemented, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by both of the parties
hereto. No waiver of any provisions hereof by either party shall be
deemed a waiver of any other provisions hereof by such party, nor
shall any such waiver be deemed a continuing waiver of any
provision hereof by such party.
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9.
Notices.
All
notices, requests, claims, demands, and other communications
hereunder shall be in writing and shall be deemed to have been
given (a) when delivered by hand (with written confirmation of
receipt), (b) when received by the addressee if sent by a
nationally recognized overnight courier (receipt requested), (c) on
the date sent by facsimile or e-mail of a PDF document (with
confirmation of transmission) if sent during normal business hours
of the recipient, and on the next Business Day if sent after normal
business hours of the recipient, or (d) on the third day after the
date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the
respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in
accordance with this Section
9):
If to
the Parent, to:
0000-X
Xxxxxx Xxxx
X.
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn:
Chief Financial Officer
With a
copy to (which shall not constitute notice):
Sichenzia Xxxx
Xxxxxxx Xxxxxx, LLP.
00
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Att:
Xxxxxx X. Xxxxxx, Esq.
xxxxxxx@xxxxxxx.xxx
212-930-9700
If to
the Company, to:
With a
copy to (which shall not constitute notice):
Xxxxxx
XxXxxxxx
00 Xxxx
Xxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxx, Esq.
If to
the Stockholders, to the addresses or facsimile numbers set forth
for the Stockholders on the signature page hereof.
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10.
Miscellaneous.
(a)
This Agreement
shall be governed by and construed in accordance with the internal
laws of the State of New York without giving effect to any choice
or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of
laws of any jurisdiction other than those of the State of New
York.
(b)
Each of the parties
hereto irrevocably agrees that any legal action or proceeding with
respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in
respect of this Agreement and the rights and obligations arising
hereunder brought by the other party hereto or its successors or
assigns shall be brought and determined exclusively in the federal
or state courts located in New York, New York or in the event (but
only in the event) that such court does not have subject matter
jurisdiction over such action or proceeding, in any state or
federal court within the State of New York and any direct appellate
court therefrom. Each of the parties hereto agrees that mailing of
process or other papers in connection with any such action or
proceeding in the manner provided in Section 9 or in such other manner as may
be permitted by applicable laws, will be valid and sufficient
service thereof. Each of the parties hereto hereby irrevocably
submits with regard to any such action or proceeding for itself and
in respect of its property, generally and unconditionally, to the
personal jurisdiction of the aforesaid courts and agrees that it
will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court or
tribunal other than the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement
of any judgment in respect of this Agreement and the rights and
obligations arising hereunder (i) any claim that it is not
personally subject to the jurisdiction of the above named courts
for any reason other than the failure to serve process in
accordance with this Section
10(b), (ii) any claim that it or its property is exempt or
immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), and
(iii) to the fullest extent permitted by the applicable law, any
claim that (x) the suit, action or proceeding in such court is
brought in an inconvenient forum, (y) the venue of such suit,
action or proceeding is improper, or (z) this Agreement, or the
subject matter hereof, may not be enforced in or by such
courts.
(c)
EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(c).
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(d)
If any term or
provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other term or provision of this Agreement or
invalidate or render unenforceable such term or provision in any
other jurisdiction. Upon such determination that any term or other
provision is invalid, illegal or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in
a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
(e)
This Agreement may
be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute
one and the same instrument.
(f)
Each party hereto
shall execute and deliver such additional documents as may be
necessary or desirable to effect the transactions contemplated by
this Agreement.
(g)
All section
headings herein are for convenience of reference only and are not
part of this Agreement, and no construction or reference shall be
derived therefrom.
(h)
The obligations of
the Stockholders set forth in this Agreement shall not be effective
or binding upon the Stockholders until after such time as the
Purchase Agreement is executed and delivered by the Parent, the
Seller and the Purchaser, and the parties agree that there is not
and has not been any other agreement, arrangement or understanding
between the parties hereto with respect to the matters set forth
herein.
(i)
The parties to this
Agreement may not assign any of their rights or obligations under
this Agreement without the prior written consent of the other party
hereto. Any assignment contrary to the provisions of this
Section 10(i) shall be null
and void.
11.
No Ownership Interest; No Unspecified
Obligations.
Nothing
contained in this Agreement shall be deemed to vest in any other
party 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 Stockholders, and no other Party shall have any
authority to direct the Stockholders in, and the Stockholders will
in no way be limited from the voting or disposition of, or the
taking of any other action in connection with, any of the Shares,
except as otherwise specifically provided herein.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written
above.
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POLARITYTE, INC.
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By:
______________________________________
Name:
Denver Lough, individually and behalf of the Company
By:
______________________________________
Name:
Xxxxxx Xxxxxxx, individually and on behalf of the
Company
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STOCKHOLDERS:
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By:
_____________________________________
Name:
Street
Address: __________________________
City/State/Zip
Code: ______________________
Fax:
___________________________________
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By:
_____________________________________
Name:
Street
Address: __________________________
City/State/Zip
Code: ______________________
Fax:
___________________________________
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By:
_____________________________________
Name:
Street
Address: __________________________
City/State/Zip
Code: ______________________
Fax:
___________________________________
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By:
_____________________________________
Name:
Street
Address: __________________________
City/State/Zip
Code: ______________________
Fax:
___________________________________
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By:
_____________________________________
Name:
Street
Address: __________________________
City/State/Zip
Code: ______________________
Fax:
___________________________________
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AGREE AND ACCEPTED:
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By:
______________________________________
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
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