VOTING AGREEMENT
This Stockholders Agreement (this "Agreement") is made as of May 24, 2004 by and
among SurfNet Media Group, Inc., a Delaware corporation (the "Company"), the
Stockholders and Managers listed on the signature pages of this Agreement. The
Stockholder and Managers are collectively referred to herein as the
"Stockholders."
RECITALS
A. The Stockholders are the holder of that number of shares of common stock,
$.0001 par value per share, of the Company ("Common Stock") identified on
the signature page.
B. It is a condition to the continued participation of the Managers that the
parties execute this Agreement hereto, and the parties are willing to
execute, and to be bound by the provisions of, this Agreement.
AGREEMENT
In consideration of the foregoing and the agreements set forth below, the
parties hereby agree to be bound as follows:
1. ELECTION OF DIRECTORS
1.1 Voting Of Shares. In elections of directors of the Company and during
the term of this Agreement, the Stockholders shall vote all shares of
the capital stock of the Company owned by them, or as to which they
have voting power, for the candidates designated pursuant to the
provisions of this Agreement.
1.2 Number Of Directors. The Board of Directors shall consist of such
number of directors as may be determined in accordance with the Bylaws
of the Company. The parties agree that the Board of Directors shall
consist of three (3) directors until such time as the number of
directors may be increased above such number in accordance with such
Bylaws. The parties shall use their best efforts to permit no
amendment of the Bylaws of the Company that would reduce the number of
directors constituting the Board of Directors below three (3) or that
otherwise would conflict with the terms of this Agreement.
1.3 Designated Directors. In elections of Directors of the Company, the
Stockholders shall vote for the candidates designated by the Managers.
1.4 Voting Among Managers. Whenever the Managers shall be entitled to
designate a candidate or candidates to the Board of Directors, the
Managers shall choose such candidate or candidates unanimously. If the
Managers support differing candidates and are deadlocked, the decision
as to which of the candidate or candidates to choose shall be made by
the independent members of the Board of Directors. The candidate(s) so
1
chosen shall be the designated candidate(s) for that group and the
Stockholders agree to vote for such individuals.
1.5 Removal Of Directors And Vacancies. Directors may be removed at any
time with or without cause, provided that no Stockholder shall vote
for the removal of a director nominated and elected pursuant to this
Agreement, and no such vote shall be effective, unless the parties who
nominated such director, voting among themselves in accordance with
Section 1.3, shall so specify. If such parties do so specify the
removal of a director, the Stockholders agree to vote all shares of
capital stock of the Company owned by them, or as to which they have
voting power, for the removal of such director. If a vacancy occurs on
the Board of Directors, the remaining directors shall immediately
elect the nominee of the group that nominated the departing director.
If the remaining directors fail for any reason to elect such nominee,
the Company or the Stockholders shall cause a Stockholders' meeting to
be held at the earliest practicable date, at which meeting the
Stockholders shall vote, pursuant to this Agreement, all shares of
capital stock of the Company owned by them, or as to which they have
voting power, for such nominee.
2. ADDITIONAL SHARES OF STOCK. In the event additional shares of voting
capital stock of the Company are, at any time during the term of this
Agreement, issued to a Stockholder, such additional shares of voting
capital stock shall automatically become subject to the terms and
provisions of this Agreement and shall be voted in accordance herewith.
3. TERMINATION. This Agreement shall terminate in its entirety upon the
earliest to occur of (a) eighteen (18) months subsequent to the date of
this Agreement; or (b) one hundred and eighty (180) days subsequent to the
date of this Agreement if the Company has not obtained five hundred
thousand dollars ($500,000) in working capital in cash, credit or kind.
4. AUTHORIZATION. Each party hereto represents that this Agreement has been
duly authorized, executed and delivered by such party and constitutes a
valid and binding obligation of such party, enforceable against such party
in accordance with its terms.
5. SUCCESSORS. The provisions of this Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the parties hereto.
6. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7. AMENDMENT. This Agreement shall not be subject to modification or amendment
in any respect, except by an instrument in writing signed by the Company
and each of the Stockholders.
2
8. GOVERNING LAW. This Agreement is entered into pursuant to and in accordance
with the provisions of Section 218 of the Delaware General Corporation Law.
All disputes hereunder shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware, without regard
to principles of conflict of laws.
9. SPECIFIC PERFORMANCE. The parties acknowledge that money damages may not be
an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may
deem just and proper to enforce this Agreement or to prevent any violation
hereof and, to the extent permitted by applicable law, each party waives
any objection to the imposition of such relief in appropriate
circumstances.
10. NOTICES. All notices, demands or other communications desired or required
to be given by any party to any other party hereto shall be in writing and
shall be deemed effectively given upon (a) personal delivery to the party
to be notified, (b) upon confirmation of receipt of telecopy or other
electronic facsimile transmission, (c) one business day after deposit with
a reputable overnight courier, prepaid for priority overnight delivery and
addressed as set forth in (d), or (d) five days after deposit with the
United States Post Office, postage prepaid, and addressed as follows:
(i) if to the Stockholders, c/o SurfNet Media Group, Inc., at the
address and facsimile number of the Company's then current executive
offices;
(ii) if to Managers, c/o SurfNet Media Group, Inc., at the address and
facsimile number of the Company's then current executive offices; or
(iii) to such other addresses and to the attention of such other
individuals as any party shall have designated to the other parties by
notice given in the foregoing manner.
11. SEVERABILITY. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if
such provisions were so excluded and shall be enforceable in accordance
with its terms.
12. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements with respect to the
subject matter hereof.
3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SURFNET MEDIA GROUP, INC.
/s/ Xxxxxx X. Xxxxx
By:________________________
Xxxxxx X. Xxxxx
Chairman
STOCKHOLDERS:
/s/ Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxx
619,777 shares
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
389,103 shares
/s/ Xxxxx Xxxxx /s/ Xxxxxxxxx Xxxxx
Xxxxx Xxxxx FrancescaChing
91,761 shares 91,763 shares
MANAGERS:
/s/ Xxxxxx X. Xxxxx /s/ Xxxx Xxxxxxxxx
Xxxxxx Xxxxx Xxxx Xxxxxxxxx
