VOTING AGREEMENT
EXHIBIT
10.2
This
Voting Agreement (the "Agreement") is made and entered into as of
______________, 2008, by and between Onstream Media Corporation, a Delaware
corporation ("Parent") and the undersigned stockholder ("Stockholder") of
Narrowstep, Inc., a Delaware corporation (the "Company").
A. Concurrently
with the execution of this Agreement, Parent, Onstream Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub") and the
Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which Merger Sub will be merged with and into the
Company (the "Merger"). Capitalized terms used but not defined herein shall
have
the meanings given to them in the Merger Agreement.
B. As
of the
date hereof, Stockholder has the power to vote or to direct the voting of the
shares of Company Common Stock indicated on the signature pages to this
Agreement (the “Existing Shares”).
C. As
a
material inducement to enter into the Merger Agreement, Parent desires
Stockholder to agree, and Stockholder is willing to agree, to vote the Existing
Shares, and such other shares of Company Common Stock over which Stockholder
acquires the right to vote after the date hereof (collectively with the Existing
Shares, the “Shares”), so as to facilitate consummation of the
Merger.
1. Voting
of
Shares.
1.1 Agreement
to Vote Shares. Stockholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement terminates
pursuant to Section 4 hereof, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the stockholders of the
Company, however called, and in any action by written consent of the
stockholders of the Company, Stockholder shall appear at the meeting or
otherwise cause any and all Shares to be counted as present thereat for purposes
of establishing a quorum and vote (or cause to be voted) any and all Shares:
(i)
in favor of the approval of the Merger and adoption of the Merger Agreement;
(ii) against any Acquisition Proposal or Superior Offer; and (iii) against
any
proposal or transaction which would reasonably be likely to prevent or delay
the
consummation of the Merger or the Merger Agreement. Stockholder further agrees
not to enter into any agreement or understanding with any person or entity
the
effect of which would be inconsistent with or violative of any provision
contained in this Section 1.1. Notwithstanding anything to the contrary
contained herein, nothing in this Agreement shall be construed to limit or
restrict Stockholder from acting in Stockholder's capacity as a director or
officer of the Company or voting in Stockholder's sole discretion on any matter
other than those matters referred to in the first sentence of this Section
1.1.
1.2 Irrevocable
Proxy. Concurrently with the execution of this Agreement, Stockholder agrees
to
deliver to Parent a proxy in the form attached hereto as Exhibit 1 (the
"Proxy"), which shall be irrevocable prior to the termination of this Agreement,
with respect to the Shares, subject to the other terms of this Agreement.
1.3 Adjustments
Upon Changes in Capitalization. In the event of any change in the number of
issued and outstanding shares of Company Common Stock by reason of any stock
split, reverse split, stock dividend (including any dividend or distribution
of
securities convertible into Company Common Stock), combination, reorganization,
recapitalization or other like change, conversion or exchange of shares, or
any
other change in the corporate or capital structure of the Company, the term
"Shares" shall be deemed to refer to and include the Shares as well as all
such
stock dividends and distributions and any shares into which or for which any
or
all of the Shares may be changed or exchanged.
2. Transfer
and Other Restrictions. Stockholder represents, covenants and agrees that,
except for the proxy granted in Section 1.2 hereof and as contemplated by this
Agreement: (i) Stockholder shall not, directly or indirectly, during the period
commencing on the date hereof and continuing until this Agreement terminates
pursuant to Section 4 hereof, offer for sale or agree to sell, transfer, tender,
assign, pledge, hypothecate or otherwise dispose of or enter into any contract,
option or other arrangement or understanding with respect to, or consent to,
the
offer for sale, sale, transfer, tender, pledge hypothecation, encumbrance,
assignment or other disposition of, or create any Encumbrance of any nature
whatsoever with respect to, any or all of the Shares or any interest therein;
(ii) Stockholder shall not grant any proxy or power of attorney, of deposit
any
Shares into a voting trust or enter into a voting agreement or other
arrangement, with respect to the voting Shares (each a "Voting Proxy") except
as
provided by this Agreement; and (iii) Stockholder has not granted, entered
into
or otherwise created any Voting Proxy which is currently (or which will
hereafter become) effective, and if any Voting Proxy has been created, such
Voting Proxy will be effectively revoked upon delivery of the executed Proxy
as
provided hereby.
3. Representations
and Warranties of Stockholder. Stockholder represents and warrants to Parent
that:
3.1 Authority;
Validity. If such Stockholder is an entity, (i) the Stockholder has all
requisite capacity, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and (ii) the execution and
delivery of this Agreement by Stockholder and the consummation by Stockholder
of
the transactions contemplated hereby have been duly and validly authorized
by
all necessary action on the part of Stockholder. This Agreement has been duly
executed and delivered by Stockholder. If this Agreement is being executed
in a
representative or fiduciary capacity with respect to Stockholder, the person
signing this Agreement has full power and authority to enter into and perform
this Agreement.
3.2 Non-Contravention.
The execution, delivery and performance of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not result in the creation of any encumbrance on the
Shares (other than those created pursuant to this Agreement) or violate the
terms of any contract, agreement or arrangement to which the Stockholder is
a
party or by which it is bound or to which the Shares may be subject. There
is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which Stockholder is settlor or trustee or any other person or entity,
including any Governmental Entity, whose consent, approval, order or
authorization is required by or with respect to Stockholder for the execution,
delivery and performance of this Agreement by Stockholder or the consummation
by
Stockholder of the transactions contemplated hereby.
3.3 Title.
Stockholder has the authority and right to vote the Shares and to grant the
Proxy as contemplated hereby. The Existing Shares set forth on the signature
pages hereto are the only shares of Company Common Stock as to which Stockholder
has the power to vote or to direct the voting thereof.
4. Effectiveness;
Termination; No Survival. This Agreement shall become effective upon its
execution by Stockholder and Parent and upon the execution of the Merger
Agreement. This Agreement may be terminated at any time by mutual written
consent of Stockholder and Parent. This Agreement, and the obligations of
Stockholder hereunder, including, without limitation, Stockholder's obligations
under Section 1 and Section 2 above, shall terminate, without any action by
the
parties hereto, upon the earlier to occur of the following: (i) such date and
time as the Merger Agreement shall have been adopted by the stockholders of
the
Company; (ii) such date and time as the Merger Agreement shall have been validly
terminated pursuant to Article VIII thereof; and (iii) May 1, 2009.
5. Further
Assurances. Subject to the terms of this Agreement, from time to time,
Stockholder shall execute and deliver such additional documents and use
commercially reasonable efforts to take, or cause to be taken, all such further
actions, and to do or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement.
6. Miscellaneous.
6.1 Severability.
If any term, provision, covenant or restriction of this Agreement is held by
a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
6.2 Binding
Effect and Assignment. This Agreement and all of the provisions hereof shall
be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or obligations
of the parties hereto may be assigned by either of the parties without the
prior
written consent of the other. Any purported assignment in violation of this
Section 6 shall be void.
6.3 Amendments
and Modification. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
6.4 Specific
Performance; Injunctive Relief. The parties hereto acknowledge that Parent
will
be irreparably harmed and that there will be no adequate remedy at law for
a
violation of any of the covenants or agreements of Stockholder set forth herein.
Therefore, it is agreed that, in addition to any other remedies that may be
available to Parent upon any such violation, Parent shall have the right to
enforce such covenants and agreements by specific performance, injunctive relief
or by any other means available to Parent at law or in equity and Stockholder
hereby irrevocably and unconditionally waives any objection in Parent seeking
so
to enforce such covenants and agreements by specific performance, injunctive
relief and other means.
6.5 Notices.
All notices and other communications hereunder shall be in writing and shall
be
deemed given upon delivery either personally or by commercial delivery service,
or sent via facsimile (receipt confirmed) to the parties at the following
addresses or facsimile numbers (or at such other address or facsimile numbers
for a party as shall be specified by like notice).
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If to Parent, to:
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Onstream
Media Corporation
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0000
X.X. 00xx Xxxxxx
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Xxxxxxx
Xxxxx, Xxxxxxx 00000
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Facsimile:
(000) 000-0000
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Attention:
Xxxxx Xxxxxx
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with
copies to:
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Xxxxxxxx
& Xxxx LLP
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000
Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
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Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
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Facsimile:
(000) 000-0000
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Attention:
Xxxx X. Xxxxxxxxx, Esq.
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If
to Stockholder, at its address set forth on the signature pages
hereto.
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6.6 Governing
Law; Submission to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless
of
the laws that might otherwise govern under applicable principles of conflicts
of
law thereof. The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction to any court in the State of Delaware
having jurisdiction for any actions, suits or proceedings arising out of or
relating to this Agreement (and the parties agree not to commence any action,
suit or proceeding relating thereto except in such courts), and further agree
that service of any process, summons, notice or document by U.S. certified
mail
shall be effective service of process for any action, suit or proceeding brought
against the parties in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement in such courts and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought n any such court
has
been brought in an inconvenient forum.
6.7 Entire
Agreement. The Merger Agreement, this Agreement and Proxy granted hereunder
constitute and contain the entire agreement and understanding of the parties
with respect to the subject matter and supersede any and all prior negotiations,
correspondence, agreements, understandings duties or obligations between the
parties respecting the subject matter hereof.
6.8 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument.
6.9 Captions.
The captions to sections of this Agreement have been inserted only for
identification and reference purposes and shall not be used to construe or
interpret this Agreement.
6.10 Stockholder
Capacity. Notwithstanding anything herein to the contrary, Stockholder makes
no
agreement or understanding herein in his capacity as a director or officer
of
the Company or any subsidiary or the Company, and the agreements set forth
herein shall in no way restrict Stockholder in the exercise of his fiduciary
duties as a director or officer of the Company or any subsidiary of the Company
or limit or affect any actions taken by Stockholder solely in his capacity
as an
officer or director of the Company or any subsidiary of the Company. Stockholder
has executed this Agreement solely in his capacity as a stockholder of the
Company.
6.11 No
Ownership Interest. Nothing contained in this Agreement shall be deemed to
vest
in Parent or Merger Sub any direct or indirect ownership or incidence of
ownership of or with respect to the Shares. All rights, ownership and economic
benefits of and relating to such Shares shall remain vested in and belong to
Stockholder or his affiliates, and Parent and Merger Sub shall have no authority
to direct Stockholder in the voting or disposition of any Shares, except as
otherwise provided herein.
6.12 Waiver
of
Registration Rights. Stockholder hereby irrevocably waives, on its own behalf
and on behalf of all other holders entitled to such rights, all rights to which
it, any of its affiliates or any other persons may be entitled under any
registration rights agreement or other arrangement with the Company or otherwise
covering shares of Company Common Stock. Such waiver shall terminate and be
of
no further force and effect in the event that the Merger Agreement is terminated
in accordance with its terms; provided, however, that no such termination shall
have the effect of reinstating any rights or claims which Stockholder may
otherwise have had if this waiver had not been in place. Any time periods
specified in such agreements or other arrangements shall be tolled while such
waiver is in effect and until such time as Parent effects the registration
of
the Parent Common Stock to which Stockholder, its affiliates and any other
affected persons are entitled in accordance with Section 4.20 of the Merger
Agreement; provided, that Parent has complied in all material respects with
such
Section 4.20. The Company shall be entitled to rely upon and enforce this
Section 6.12 as a third party beneficiary.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be
executed as of the date first above written.
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ONSTREAM
MEDIA CORPORATION
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By:
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Name:
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Title:
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STOCKHOLDER:
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Stockholder's
Address:
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Shares
that Stockholder has the right to vote or direct the voting
of:
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EXHIBIT
1
Irrevocable
Proxy
The
undersigned stockholder (“Stockholder”) of Onstream Media Corporation, a Florida
corporation (the “Parent”), hereby revokes any prior proxy and hereby
irrevocably appoints and constitutes Xxxxx Xxxxxx and Xxxx Xxxxxxxxxx
(collectively, the “Proxyholders”), the agents, attorneys-in-fact and proxies of
the undersigned, with full power of substitution and resubstitution, to vote
any
and all shares of common stock of the Parent registered in the name of the
Stockholder or as to which the Stockholder has the right to vote or to direct
the vote (collectively, the “Shares”) as follows: the Proxyholders named above
are empowered at any time prior to termination of this proxy to exercise all
voting and other rights (including, without limitation, the power to execute
and
deliver written consents with respect to the Shares) of the undersigned at
every
annual, special, postponed or adjourned meeting of the Parent’s stockholders,
and in every written consent in lieu of any such meeting, or otherwise cause
any
and all shares to be counted as present thereat for purposes of establishing
a
quorum, (i) in favor of the approval of the Charter Amendment Parent Share
Issuance and CVR Issuance as such terms are defined in the merger agreement
by
and among Onstream Merger Corp. (“Merger Sub”), a Delaware corporation and a
wholly owned subsidiary of Parent, with and into Narrowstep, Inc., a Delaware
corporation, pursuant to that certain Agreement and Plan of Merger among Parent,
Merger Sub, the Company and the Stockholder Representative named therein (the
“Merger Agreement”), and (ii) against any proposal or transaction which would
reasonably be likely to prevent or delay the consummation of the Merger or
the
Merger Agreement.
The
proxy
granted by Stockholder to the Proxyholders hereby is granted as of the date
specified below in order to secure the obligations of Stockholders set forth
in
Section
1.2
of that
certain voting agreement entered into concurrently with the Merger Agreement
(the “Voting Agreement”), and is irrevocable in accordance with subdivision (e)
of Section 607.077 of the Florida Business Corporation Act.
This
proxy will terminate upon the termination of the Voting Agreement in accordance
with its terms. The undersigned Stockholder authorizes the Proxyholders to
file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
Dated:
May ___, 2008
