EXHIBIT 4.4
IRREVOCABLE PROXY
THIS IRREVOCABLE PROXY (this "Agreement") is made as of July 24, 2006, by
XINHUA FINANCE LIMITED ("XFL") in favor of PATRIARCH PARTNERS MEDIA HOLDINGS,
LLC, a Delaware limited liability company (the "Patriarch").
WITNESSETH:
WHEREAS, Xinhua Finance Media Limited ("XFM"), a subsidiary of XFL, has
entered into that certain Share Purchase Agreement, dated as of 16 March 2006,
with Patriarch pursuant to which Patriarch has subscribed for 16,404,926
preferred shares in the capital of XFM (the "Preferred Shares") (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Share Purchase Agreement"; capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Share Purchase Agreement);
WHEREAS, the Memorandum and Articles of Association of XFM (including terms
of the Preferred Shares attached as Schedule 2) (the "Articles") have or will be
amended on or about the date hereof;
WHEREAS XFL holds 42,614,289 common shares in the capital of XFM (the "XFM
Shares"); and
WHEREAS, in consideration for Patriarch consenting to the amendment of the
Articles, XFL has agreed to grant to Patriarch an irrevocable proxy over the XFM
Shares and any other or additional shares and any and all accretions, accessions
and rights relating thereto (the "Proxy Shares") in accordance with the terms
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Irrevocable Proxy.
(a) Subject to terms and provisions of this Agreement, including, without
limitation, Section 2 hereof, XFL, being the sole holder and owner of the Proxy
Shares, hereby authorizes Patriarch, at any time after 7 January 2009, to vote
on behalf of XFL, as XFL's proxy, in any manner and for any outcome Patriarch
shall decide in its absolute and sole discretion without regard for XFL, at any
and all meetings of the shareholders of XFM and, as XFL's proxy, to consent or
dissent to any action taken with or without a meeting, and further makes,
constitutes and irrevocably appoints Patriarch to act as the true and lawful
proxy and attorney-in-fact in the name and on behalf of XFL, with full power to
appoint a substitute or substitutes, to vote and execute and deliver written
voting consents with respect to the Proxy Shares, to the same extent and with
the same effect as XFL could
do under any applicable laws or regulations governing the rights and powers of
shareholders of XFM (the irrevocable proxy granted hereunder, the "Irrevocable
Proxy").
(b) SUBJECT TO TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 12
HEREOF, THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST. This Irrevocable Proxy is being given to Patriarch in connection with,
and in consideration of, Patriarch's consent to the amendment of the Articles
(including amendments to Schedule 1 which provide A Common Shares held by XFL
with ten votes per share) and such proxy is given to secure the performance of
the duties of XFL under this Agreement and the Equity Documents. All power and
authority conferred under this Irrevocable Proxy shall not be terminated by any
act of the undersigned or by operation of law, by death or incapacity of the
undersigned, by lack of appropriate power or authority, or by the occurrence of
any other event or events, except as expressly provided in this Agreement. If,
after the execution of this Irrevocable Proxy, any such event or events shall
occur, Patriarch is nevertheless authorized and directed to vote the shares in
accordance with the terms of this Irrevocable Proxy as if such death,
incapacity, lack of appropriate power or authority or other event or events had
not occurred and regardless of notice thereof. This Irrevocable Proxy shall be
binding upon, and enforceable against, all beneficiaries, heirs at law,
legatees, distributees, successors, assigns, transferees and legal
representatives of XFL.
(c) The parties hereto expressly acknowledge and agree that this
Irrevocable Proxy gives Patriarch the exclusive right to vote (or consent) with
respect to the Proxy Shares, and (to the extent provided herein) that XFL shall
not have any such rights.
Section 2. Voting Rights. Prior to and including January 7, 2009, XFL shall
be entitled to exercise full voting power with respect to the Proxy Shares;
provided, however, that in no event shall XFL exercise such voting power in any
manner contrary to or inconsistent with the terms hereof.
Section 3. Appointment of Director. XFL hereby undertakes to vote the Proxy
Shares to ensure that Xxxxx Xxxx remains the sole director of XFM until the
occurrence of a QIPO (as such term is defined in the Articles). If Xxxxx Xxxx is
unwilling or unable to act as a director of XFM, XFL hereby undertakes to vote
the Proxy Shares to ensure that Xxxxxx Xxxxxxx be appointed the sole director of
XFM until the occurrence of a QIPO (as such term is defined in the Articles).
Section 4. Representations and Warranties. XFL hereby represents and
warrants to Patriarch that:
(a) XFL is the legal, beneficial and record owner and has good title to all
of its Proxy Shares free and clear of all claims, mortgages, pledges, Liens,
hypothecation, security interests and other encumbrances of every nature
whatsoever;
(b) All of the shares of its Proxy Shares have been duly and validly issued
and are fully paid and non-assessable;
(c) The Proxy Shares (i) constitute 100% of the issued and outstanding
shares
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of all classes of capital stock of XFM held by XFL and (ii) constitutes 79.41%
of the issued and outstanding shares of common stock of XFM;
(d) XFL is duly organized, validly existing, and in good standing under the
laws of the Cayman Islands. This Agreement has been duly authorized, executed
and delivered and constitutes a legal, valid and binding obligation of XFL,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency or other similar laws relating to the
enforcement of creditors' rights generally and by general equitable principles;
and
(e) XFL is not authorized to and does not do business in the State of New
York.
Section 5. Issue or Sale of Proxy Shares. XFL hereby covenants and agrees
that it will not:
(a) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of its Proxy Shares;
(b) permit the issuer of any of the Proxy Shares, directly or indirectly,
to issue or sell any additional shares of capital stock or any options, warrants
or rights to acquire such shares except to the extent permitted under the
Articles; or
(c) create, incur, assume or permit to exist, and will defend the Proxy
Shares against, and will take such other actions as are necessary to remove, any
Lien or claim on or to the Proxy Shares, and will defend the right, title and
interest of XFL in and to any of the Proxy Shares against the claims and demands
of any and all Persons.
Section 6. Waiver. XFL does hereby release and forever discharge Patriarch
from any and all claims, debts, liabilities, demands, obligations, costs,
expenses, actions and causes of action, of every nature, character and
description, known or unknown, which it owns and holds, or has at any time
heretofore owned or held, or may at any time own or hold, by reason of any
matter, cause or thing whatsoever occurred, done, omitted or suffered to be done
with respect to, or arising out of, any actions taken or not taken by Patriarch
as XFL's proxy with respect to the Proxy Shares.
Section 7. Modification. This Agreement may not be modified or amended
without the prior written consent of each of the parties hereto.
Section 8. Notices. Except as otherwise expressly provided herein, all
notices and other communications made or required to be given pursuant to this
Agreement shall be made in accordance with the provisions of Section 9(f) of the
Share Purchase Agreement.
Section 9. Binding Effect, Etc. This Agreement, and all claims, disputes
and matters arising hereunder or related hereto, and the rights and obligations
of the parties hereunder shall be construed in accordance with and governed by
the laws of the State of New York, without reference to conflicts of laws
provisions. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors
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and assigns, and may be executed in two or more counterparts, each of which
shall together constitute one and the same agreement.
Each party hereto hereby (a) agrees that any action with respect to this
Agreement may be brought only in the New York State courts sitting in New York
County or the federal courts of the United States of America for the Southern
District of New York and sitting in New York County, (b) accepts for itself and
in respect of its property, generally and unconditionally, the exclusive
jurisdiction of such courts, (c) irrevocably waives any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which it may now or hereafter have to the bringing of
any Action in those jurisdictions, and (d) irrevocably consents to the service
of process of any of the courts referred to above in any Action by the mailing
of copies of the process to the parties hereto as provided in Section 9(f) of
the Share Purchase Agreement. Service effected as provided in this manner will
become effective ten (10) calendar days after the mailing of the process.
Section 10. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision hereof.
Section 11. Captions. Captions and headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
the provisions hereof.
Section 12. Termination. Upon any QIPO (as such term is defined in the
Articles) or upon the conversion or redemption of all of the Preferred Shares in
strict accordance with the terms set forth in the Articles, this Agreement shall
automatically terminate.
Section 13. Remedies. A breach of any of the promises or agreements
contained herein may result in irreparable harm and significant and continuing
damage to Patriarch for which there will be no adequate remedy at law, and
Patriarch, in addition to any other available remedies, shall be entitled to
seek injunctive relief and/or a decree for specific performance, and such other
relief as may be proper.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
XINHUA FINANCE LIMITED
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: CEO
PATRIARCH PARTNERS MEDIA HOLDINGS, LLC
By: /s/
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Name:
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Title:
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