VOTING AGREEMENT
Exhibit 10.2
This
VOTING AGREEMENT (this “Agreement”), is entered into as
of March [●],
2021, by and among [SLGG/Mobcrush], Inc. a Delaware corporation
(the “Company”), and the shareholder
listed on the signature page hereto under the heading
“Shareholder” (the “Shareholder”).
WHEREAS, the
Company intends to enter into an Agreement and Plan of Merger (the
“Merger
Agreement”) by and between the Company,
[SLGG/Mobcrush], and [Merger Sub], Inc., a Delaware corporation
("Merger Sub"), pursuant to
which, among other things, the Company will [cause Merger Sub to
merge with Mobcrush/merge with and into Merger Sub], as effected by
the exchange of 0.528 shares of [Company/Super League] common
stock, par value $0.001per share (the "Super League Stock"), for every one (1)
share of Mobcrush common stock, par value $0.001 per share (the
"Mobcrush Common Stock"),
and preferred stock, par value $0.001 per share (the "Mobcrush Preferred Stock", and
collectively with the Mobcrush Common Stock, the "Mobcrush Stock"), subject to certain
exceptions, terms, and limitations, as more specifically set forth
in the Merger Agreement.
WHEREAS, as of the
date hereof, the Shareholder owns, collectively, those certain
securities of the Company (the “Shareholder Securities”) set
forth on Appendix
“1” attached hereto, which represent in the
aggregate approximately [●]% of the total issued and
outstanding voting securities of the Company, on an as converted
basis; and
WHEREAS, as a
condition to the willingness of the parties to the Merger Agreement
to enter into the Merger Agreement and to consummate the
transactions contemplated thereby (collectively, the
“Transaction”),
[Super League/Mobcrush] has required that each Shareholder agree,
and in order to induce the other parties to the Transaction to
enter into the Merger Agreement, each Shareholder has agreed, to
enter into this Agreement with respect to all the Shareholder
Securities now owned and which may hereafter be acquired by the
Shareholder and any other securities, if any, which such
Shareholder is currently entitled to vote, or after the date
hereof, becomes entitled to vote, at any meeting of shareholders of
the Company (the “Other
Securities”) necessary or desirable to approve the
Transaction and each of the proposals contemplated thereby, each as
more particularly set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENT OF THE SHAREHOLDER
SECTION
1.01. Agreement to Approve
Merger Agreement and Transaction. Subject to the last
sentence of this Section 1.01, Shareholder hereby agrees that at
any meeting of the shareholders of the Company, however called, and
in any action by written consent of the Company’s
shareholders, the Shareholder shall vote the Shareholder Securities
and the Other Securities in favor of approving (i) the Merger
Agreement in substantially the form as is attached hereto as
Exhibit A, and (ii)
the Transaction (collectively, the “Initial Shareholder Approval”).
The obligations of the Shareholder under this Section 1.01 shall
terminate immediately following the occurrence of the Initial
Shareholder Approval.
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[SECTION 1.02.
Agreement to Adopt Equity
Award Plan. Subject to the last sentence of this Section
1.02, following (or concurrently with in the event of the actions
in Section 1.01 above and this Section 1.02 occurring
simultaneously) the Company's receipt of the requisite number of
votes required to approve the Merger Agreement and Transaction, as
contemplated by Section 1.01 hereinabove, the Shareholder hereby
agrees that at any meeting of the shareholders of the Company,
however called, and in any action by written consent of the
Company’s shareholders, the Shareholder shall vote the
Shareholder Securities and Other Securities (a) against any
proposal or any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the
Company’s obligations under the Merger Agreement not being
fulfilled; and (b) for any proposal not inconsistent with the above
that is necessary or desirable by the Company’s Board of
Directors to approve, or in furtherance of, the Transaction
(together, “Secondary
Shareholder Approval”). Each Shareholder acknowledges
receipt and review of a copy of the Merger Agreement and the other
Transaction Documents (as defined in the Merger Agreement). The
obligations of the Shareholder under this Section 1.02 shall
terminate immediately following the occurrence of the Secondary
Shareholder Approval.]1
[Section 1.02
Agreement Not to Approve
Actions Contrary to Merger Agreement. Subject to the last
sentence of this Section 1.02, following (or concurrently with in
the event of the actions in Section 1.01 above and this Section
1.02 occurring simultaneously) the Company's receipt of the
requisite number of votes required to approve the Merger Agreement
and Transaction, as contemplated by Section 1.01 hereinabove, the
Shareholder hereby agrees that at any meeting of the shareholders
of the Company, however called, and in any action by written
consent of the Company’s shareholders, the Shareholder shall
vote the Shareholder Securities and Other Securities (a) against
any proposal or any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or which could result in any of the conditions to the
Company’s obligations under the Merger Agreement not being
fulfilled; and (b) for any proposal not inconsistent with the above
that is necessary or desirable by the Company’s Board of
Directors to approve, or in furtherance of, the Transaction
(together, “Secondary
Shareholder Approval”). Each Shareholder acknowledges
receipt and review of a copy of the Merger Agreement and the other
Transaction Documents (as defined in the Merger Agreement). The
obligations of the Shareholder under this Section 1.02 shall
terminate immediately following the occurrence of the Secondary
Shareholder Approval.]2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
Shareholder hereby
makes the following representations and warranties to the
Company:
SECTION
2.01. Authority Relative
to This Agreement. Each Shareholder has all necessary legal
capacity, power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Shareholder and
constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with its terms, except (a) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in effect
relating to, or affecting generally the enforcement of
creditors’ and other obligees’ rights, (b) where the
remedy of specific performance or other forms of equitable relief
may be subject to certain equitable defenses and principles and to
the discretion of the court before which the proceeding may be
brought, and (c) where rights to indemnity and contribution
thereunder may be limited by applicable law and public
policy.
SECTION
2.02. No
Conflict.
(a) The
execution and delivery of this Agreement by such Shareholder does
not, and the performance of this Agreement by such Shareholder
shall not, (i) conflict with or violate any federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or
decree applicable to such Shareholder or by which the Shareholder
Securities or the Other Securities owned by such Shareholder are
bound or affected or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Shareholder
Securities or the Other Securities owned by such Shareholder
pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or
obligation to which such Shareholder is a party or by which such
Shareholder or the Shareholder Securities or Other Securities owned
by such Shareholder are bound.
-2-
(b) The
execution and delivery of this Agreement by such Shareholder does
not, and the performance of this Agreement by such Shareholder
shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity by
such Shareholder.
SECTION
2.03. Title to the
Stock. As of the date hereof, each Shareholder is the owner
of the Shareholder Securities set forth opposite such
Shareholder’s name on Appendix A attached hereto,
entitled to vote, without restriction, on all matters brought
before holders of capital stock of the Company, which the
Shareholder Securities represent on the date hereof the percentage
of the outstanding stock and voting power of the Company set forth
on such Appendix. The Shareholder Securities are all the securities
of the Company owned, either of record or beneficially, by such
Shareholder. The Shareholder Securities are owned free and clear of
all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on such Shareholder’s
voting rights, charges and other encumbrances of any nature
whatsoever. No Shareholder has appointed or granted any proxy,
which appointment or grant is still effective, with respect to the
Shareholder Securities or Other Securities owned by such
shareholder.
ARTICLE III
COVENANTS
SECTION
3.01. No Disposition or
Encumbrance of Stock. Notwithstanding anything herein to the
contrary, the Shareholder hereby covenants and agrees that until
the date the Initial Shareholder Approval [and Secondary
Shareholder Approval] [has/have] been obtained, except as
contemplated by this Agreement, such Shareholder shall not offer or
agree to sell, transfer, tender, assign, hypothecate or otherwise
dispose of, grant a proxy or power of attorney with respect to, or
create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on
the Shareholder’s voting rights, charge or other encumbrance
of any nature whatsoever (“Encumbrance”) with respect to the
Shareholder Securities or Other Securities, directly or indirectly,
initiate, solicit or encourage any person to take actions which
could reasonably be expected to lead to the occurrence of any of
the foregoing; provided, however, that any such
Shareholder may assign, sell or transfer any Shareholder Securities
or Other Securities provided that any such recipient of the
Shareholder Securities or Other Securities has delivered to the
Company a written agreement in a form reasonably satisfactory to
the Company that the recipient shall be bound by, and the
Shareholder Securities and/or Other Securities so transferred,
assigned or sold shall remain subject to this
Agreement.
SECTION
3.02. Company
Cooperation. The Company hereby covenants and agrees that it
will not, and such Shareholder irrevocably and unconditionally
acknowledges and agrees that the Company will not (and waives any
rights against the Company in relation thereto), recognize any
Encumbrance or agreement on any of the Shareholder Securities or
Other Securities subject to this Agreement unless the provisions of
Section 3.01 have been complied with. The Company agrees to use its
reasonable best efforts to ensure that at any time in which any
Shareholder Approval is required pursuant to the Securities
Purchase Agreement, it will cause holders of Shareholder Securities
or Other Securities representing the percentage of outstanding
capital stock required to vote in favor of the Transaction in order
for the Company to comply with its obligations under the Securities
Purchase Agreement to become party to and bound by the terms and
conditions of this Agreement and the Shareholder Securities and
Other Securities held by such holders to be subject to the terms
and conditions of this Agreement.
-3-
ARTICLE IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances. The Shareholder will execute and deliver such
further documents and instruments and take all further action as
may be reasonably necessary in order to consummate the transactions
contemplated hereby.
SECTION
4.02. Specific
Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the
Company shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or in equity. The
Company shall be entitled to its reasonable attorneys’ fees
in any action brought to enforce this Agreement in which it is the
prevailing party.
SECTION
4.03. Entire
Agreement. This Agreement constitutes the entire agreement
among the Company and the Shareholder with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the Company and the
Shareholder with respect to the subject matter hereof.
SECTION
4.04. Amendment.
The provisions of this Agreement may not be amended or waived, nor
may this Agreement be terminated by the Company other than pursuant
to the provisions of Section 4.07.
SECTION
4.05. Severability.
If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of
competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and
enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions
of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
SECTION
4.06. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of Delaware. The parties hereby agree that all
actions or proceedings arising directly or indirectly from or in
connection with this Agreement shall be litigated only in the State
of Delaware or the United States District Court located in
Delaware. The parties consent to the jurisdiction and venue of the
foregoing courts and consent that any process or notice of motion
or other application to any of said courts or a judge thereof may
be served inside or outside the State of Delaware or the District
of Delaware by registered mail, return receipt requested, directed
to the party being served at its address set forth on the signature
ages to this Agreement (and service so made shall be deemed
complete three (3) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be
permissible under the rules of said courts. Each of the Company and
the Shareholder irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action, or proceeding brought
in such a court and any claim that suit, action, or proceeding has
been brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
SECTION
4.07. Termination.
Except as set forth in Section 3.01 with respect to the
Shareholder’s obligations set forth in Section 3.01, this
Agreement shall terminate immediately following closing of the
Transaction.
[Signature Page Follows]
-4-
IN WITNESS WHEREOF, each Shareholder and the Company has
duly executed this Agreement.
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THE COMPANY:
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[SUPER LEAGUE GAMING, INC. / MOBCRUSH STREAMING, INC.]
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By:
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Name:
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Title:
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Dated:
March [●], 0000
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XXXXXXXXXXX:
[ ]
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Dated:
March [●], 2021
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Address:
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APPENDIX 1
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Shareholder
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Common
StockOwned
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Voting
Percentageof StockOutstanding
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[●]
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[●]
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[●]%
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-7-
