PROXY AGREEMENT
THIS PROXY AGREEMENT (this "Agreement") is made and entered this 15th
day of November 2002 by and between XXXX XXXXXX, an individual ("Finder") and
XXXXXXX XXXXXXXX, an individual ("Proxy"), sometimes hereinafter referred
to individually as a "Party" or collectively as the "Parties."
R E C I T A L S
WHEREAS, Xxx Xxxxx ("Lender") is willing to make available to Voyager
Entertainment International, Inc., a North Dakota corporation (the "Company")
a credit facility in the form of a line of credit in the total amount of TWO
MILLION FIVE HUNDRED THOUSAND DOLLARS (U.S. $2,500,000) (the "Line of
Credit") subject and pursuant to all of the covenants, conditions and
provisions of those certain agreements entitled "Loan and Security
Agreement," the "Revolving Promissory Note," and the "Finder Fee Agreements"
(collectively the "Loan Documents") executed concurrently herewith;
WHEREAS, the Loan Documents contemplate that Finder will get certain
common stock of the Company (the "Shares") as part of the consideration for
the Line of Credit pursuant to the terms and conditions of the Loan
Documents;
WHEREAS, Proxy is the president and a director of the Company;
WHEREAS, Finder is willing to appoint Proxy as his proxy over the
Shares; and
NOW, THEREFORE, in consideration of the foregoing recitals and other
consideration, the parties agree as follows:
1. Appointment of Proxy. Finder hereby irrevocably appoints Proxy, as
proxy, with full power of substitution, and hereby authorizes him to
represent him and vote the Shares on all matters pertaining to the operation
of the Company, as such rights are defined in the operating documents of the
Company, as now existing or may be amended, including, but not limited to the
election of the Board of Directors of the Company at the annual meeting of
shareholders. This appointment will terminate upon the sale of the Shares by
Finder to a non-affiliate, non-insider or relative of the Finder which sale
will not be consummated for the purpose of terminating this appointment.
2. Specific Performance. The Parties acknowledge and agree that in
the event of any breach of this Agreement, the non-breaching party would be
irreparably harmed and could not be made whole by monetary damages. It is
accordingly agreed that in addition to any other remedy to which a Party may
be entitled at law or equity, shall be entitled to compel specific
performance of this Agreement in any action instituted in any court of
competent jurisdiction.
3. Miscellaneous.
3.1. Waiver. The waiver of Finder of any breach of any provision
of this Agreement or warranty or representation herein must be in writing and
will not be construed as a waiver of any subsequent or additional breach.
The failure to exercise any right hereunder by Finder will not operate as a
waiver of such right.
3.2. Entire Agreement. This Agreement, together with any written
instruments or documents that are referred to in or part of this Agreement,
is the final expression of the understanding of the Parties concerning the
subject matter of this Agreement and may not be altered or amended except
with the written consent of each of the parties and may not be contradicted
by evidence of any alleged oral agreement.
3.3. Jurisdiction and Governing Law. This Agreement was negotiated
in Utah. The Parties agree to submit to the jurisdiction of a court in Utah
to resolve disputes arising under this Agreement. This Agreement shall be
construed and governed by the terms of Utah law.
3.4. Time. Time is of the essence of this Agreement.
3.5. Legally Binding. The parties acknowledge that this is a
legally binding Agreement and that each have entered into this Agreement
having had the opportunity to fully review the terms hereof in consultation
with legal counsel. This Agreement shall be binding upon and inure to the
benefit of the respective heirs, executors, administrators, successors and
assigns of the parties.
3.6. Enforceability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability in such jurisdiction only and
will not invalidate or render unenforceable any other provision of this
Agreement.
3.7. Paragraph Headings. the paragraph headings are for
convenience only and will not affect the construction hereof.
3.8. Notices. All notices, demands, correspondence, copies of
correspondence or other documents which are required or permitted to be given
or served hereunder shall be in writing and will be deemed to be served
seventy-two (72) hours after deposit in First Class United States Mail,
postage prepaid and addressed to the parties as follows:
LENDER: Xxxx Xxxxxx
0000 Xxxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
PROXY: Xxxxxxx Xxxxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date and year first above written.
FINDER:
/s/ Xxxx Xxxxxx
____________________________________
XXXX XXXXXX
PROXY:
/s/ Xxxxxxx Xxxxxxxx
____________________________________
XXXXXXX XXXXXXXX
