EXHIBIT 10.3
NATIONAL LAMPOON, INC.
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SERIES C VOTING AGREEMENT
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___________ _____, 2004
SERIES C VOTING AGREEMENT
THIS SERIES C VOTING AGREEMENT (this "AGREEMENT"), dated as of
_______________, 2004, is entered into by and among
________________________________ ("_________________") together with any former
and future purchasers of Series C Preferred, as defined below ( "PURCHASER").
RECITALS
WHEREAS, Purchaser has agreed to purchase, and National Lampoon, Inc., a
Delaware corporation (the "COMPANY"), has agreed to sell, pursuant to a
Preferred Stock and Warrant Purchase Agreement dated _______________, 2004 (the
"PURCHASE AGREEMENT"), shares of Series C Convertible Preferred Stock of the
Company, par value $0.0001 per share (the "SERIES C PREFERRED"), and warrants to
acquire shares of Common Stock of the Company, par value $0.0001 per share (the
"WARRANTS"); and
WHEREAS, the Purchasers have agreed to execute this Agreement upon
consummation of their purchases of Series C Preferred.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. VOTING AND OTHER ACTIONS.
(a) Each of the Purchasers hereby agrees that, at each meeting of
the shareholders of the Company at which directors are to be elected after
the Closing (as defined in the Purchase Agreement) and in connection with
any action by written consent, such Purchaser will vote (or execute such
written consent with respect to, as the case may be) all shares of the
Series C Preferred over which such Purchaser has voting control or which
are owned by such Purchaser (including without limitation any such shares
hereafter acquired), or will cause such shares or securities to be voted
(or such consent to be executed), and will take all other necessary or
desirable actions within such Purchaser's control in his, her or its
capacity as a shareholder, including acting by written consent to the
extent permitted under applicable law, so that:
(i) during the term of this Agreement, the Director entitled
to be elected to the Company's Board of Directors by the holders of
the Series C Preferred pursuant to the Certificate of Designations,
Preferences, Rights and Limitations of Series C Convertible
Preferred Stock of National Lampoon, Inc. (the "SERIES C DIRECTOR")
will be the person elected by a majority of the holders of Series C
Preferred.
(ii) any vacancy created by the death, resignation or removal
of the Series C Director will be filled by a person nominated to
fill such vacancy by the majority of the Series C Preferred.
SECTION 2. TERMINATION OF AGREEMENT. This Agreement will terminate and be
of no further force or effect upon the mutual written agreement to terminate of
the Purchasers or upon conversion of more than 50% of the Series C Preferred to
common shares.
SECTION 3. MISCELLANEOUS.
(a) Succession.
(i) The benefits and burdens of this Agreement shall not be
personal to the Purchasers and will pass to the successors in
interest and/or the transferees of any of their Series C Preferred
shares. In addition, it shall be a condition of any sale, transfer
or assignment of any Series C Preferred shares by any Purchaser that
the successor in interest to such shares (including, without
limitation, any buyer, transferee or assignee) execute an adherence
and assumption agreement to the terms and conditions of this
Agreement in or substantially in the form attached hereto as Exhibit
A and deliver such agreement to all then current parties hereto and
their successors and transferees.
(ii) Any sale, transfer or assignment of Series C Preferred
shares by a Purchaser which is, pursuant to the terms of this
Agreement, conditional upon the successor in interest to such shares
(including, without limitation, any buyer, transferee or assignee)
executing an adherence and assumption agreement to the terms and
conditions of this Agreement in or substantially in the form
attached hereto as Exhibit A, in circumstances where such condition
has not been satisfied, shall constitute a breach of this Agreement
by such Purchaser.
(b) Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of
Delaware, without giving effect to its principles or rules regarding
conflicts of laws (to the extent such principles or rules would require
the application of the law of another jurisdiction).
(c) Severability. If any provision of this Agreement or portion
thereof shall be declared invalid, illegal or unenforceable, such
provision or portion thereof shall be severed and all remaining provisions
shall continue in full force and effect.
(d) Amendments. No amendment, alteration or modification of this
Agreement shall be valid unless in each instance such amendment,
alteration or modification is expressed in a written instrument executed
by each of the Purchasers.
(e) Legends.
(i) Each of the Purchasers hereby agrees that each certificate
representing shares of Series C Preferred held by such Purchaser
prior to the date on and after which the legend is removable under
this Section 3, may bear a legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE VOTING AGREEMENTS SET FORTH IN THE SERIES C VOTING
AGREEMENT DATED AS OF _______________, 2004 BY THE PARTIES
THERETO, A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE
COMPANY."
(ii) In the event that any holder of shares of Series C
Preferred decides to sell or transfer any of such shares owned by
such holder and in respect of which the certificate or certificates
bear such legend, then such holder shall be entitled to request by
written notice to the Company that the Company exchange such
certificates for certificates which do not bear any legend, provided
that this Agreement shall have terminated.
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(iii) From and after the termination of this Agreement, any
Purchaser holding shares the certificates in respect of which are
legended as provided in Section 3(e)(i) shall be entitled to request
by written notice to the Company that the Company exchange any
legended certificate for a certificate which does not bear any
legend.
(f) Waiver. No waiver of any provision of this Agreement shall be
valid unless it is expressed in a written instrument duly executed by the
party or parties making such waiver. The failure of any party to insist,
in any one or more instances, on performance of any of the terms and
conditions of this Agreement shall not be construed as a waiver or
relinquishment of any rights granted hereunder or of the future
performance of any such term, covenant or condition but the obligation of
any party with respect thereto shall continue in full force and effect.
(g) Notices. All notices, requests, consents and other
communications required or permitted hereunder 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 telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next
business day, (iii) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (iv) one day
after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt, as follows:
(i) If to Company, to:
National Lampoon
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx XX 00000
(ii) If to Purchaser, to:
______________________________
______________________________
______________________________
Alternatively, to such other address as a party hereto supplies to each
other party in writing.
(h) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(i) Headings. The headings of this Agreement are for convenience and
shall not control or affect the meaning or construction of any provision
hereof.
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(j) Specific Performance. Each of the Purchasers agrees and
acknowledges that the other Purchasers will be irreparably damaged in the
event this Agreement is not specifically enforced. Each of the parties
therefore agrees that in the event of a breach of any provision of this
Agreement the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such
remedies shall, however, be cumulative and not exclusive, and shall be in
addition to any other remedy which any Purchaser may have.
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IN WITNESS WHEREOF the undersigned have set their hands as of the above
date.
______________________________.
By________________________________
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EXHIBIT A
FORM OF ASSUMPTION AND ADHERENCE AGREEMENT
ASSUMPTION AND ADHERENCE AGREEMENT
THIS ASSUMPTION AND ADHERENCE AGREEMENT (this "ASSUMPTION AGREEMENT") is
entered into this _____ day of __________, 200__ by and between [Name of
Transferor Shareholder] ("SELLER") and [Name of Transferee] ("BUYER").
WHEREAS, Seller and Buyer have entered into a written agreement, dated as
of _______________, 200__ (the "STOCK TRANSFER AGREEMENT"), pursuant to which
Seller has agreed to sell, transfer, convey, assign and deliver to Buyer all of
the Seller's right, title and interest in and to _____ shares of Series C
Convertible Preferred Stock, par value $0.0001 per share (the "SHARES"), in the
capital of National Lampoon, Inc., a Delaware corporation, and Buyer has agreed,
by executing this Assumption Agreement, to receive the benefits and/or assume
the burdens and obligations of Seller with respect to the Shares pursuant to
that Series C Voting Agreement (the "VOTING AGREEMENT") dated _______________,
2004 and made by and between the Purchasers (as defined therein); and
WHEREAS, pursuant to Section 3(a) of the Voting Agreement, Buyer is
required to execute and deliver to this Assumption Agreement whereby Buyer
becomes a party to and bound by the terms and provisions of the Voting
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
in the Stock Transfer Agreement and the Voting Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer hereby becomes a party to and bound by, and undertakes and
agrees from and after the date hereof to assume, perform and discharge when due
the obligations of the parties to, and otherwise to adhere to the terms and
conditions of, the Voting Agreement.
This Assumption Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
This Assumption Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the conflicts of
laws principles thereof.
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IN WITNESS WHEREOF, the undersigned have [executed/caused their duly
authorized officers to execute] this Assumption Agreement on the day and year
first above written.
_________________________________
SELLER
By:______________________________
Name:_______________________
Its:________________________
________________________________
BUYER
By:_____________________________
Name:_______________________
Its:________________________
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