VOTING AGREEMENT
This
VOTING AGREEMENT, dated as of this 12th day of February, 2007 (“Agreement”), is by
and among Xxxxxx Capital Master Fund, Ltd. (“Xxxxxx”) and each of the other
persons whose signature appears under the caption “Stockholders” on the
signature page hereof. For purposes of this Agreement, Xxxxxx, and each person
whose signature appears on the signature page hereof shall be referred to herein
individually as “Stockholder” and collectively as the
“Stockholders”.
WHEREAS,
immediately following the Exchange (as defined below), each Stockholder will
own
beneficially of record or have the power to vote, or direct the vote of, either
shares of common stock, par value $0.001 per share (“Common Stock”),shares of
Series A Convertible Preferred Stock, par value $0.10 per share (“Series A
Preferred Stock”), or shares of Series C Convertible Preferred Stock, par value
$0.10 per share (“Series C Preferred Stock”, and together with the Series A
Preferred Stock, the “Preferred Stock”) of MPLC, Inc., a Delaware corporation
(“MPLC”), as set forth opposite such Stockholder’s name on Exhibit A
hereto
(all such shares of Common Stock and Preferred Stock and any shares of which
ownership of record or the power to vote is hereafter acquired by the
Stockholders, whether by purchase, conversion or exercise, prior to the
termination of this Agreement being referred to herein as the
“Stock”);
WHEREAS,
MPLC, New Motion, Inc., a Delaware corporation (“New Motion”), the Stockholders
and certain other equity owners of New Motion have entered into an Exchange
Agreement, dated January 31, 2007 (as the same may be amended from time to
time)
(the “Exchange Agreement”) which provides, upon the terms and subject to the
conditions thereof, for the exchange of all of the shares of New Motion for
shares of MPLC’s equity securities (the “Exchange”);
WHEREAS,
MPLC’s Preferred Stock is convertible into Common Stock pursuant to a
Certificate of Designation, Preferences and Rights of Series A Convertible
Preferred Stock and a Certificate of Designation, Preferences and Rights of
Series C Convertible Preferred Stock, as applicable;
WHEREAS,
as a condition to the consummation of the Exchange Agreement, the Stockholders
have agreed to enter into this Agreement; and
WHEREAS,
the capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Exchange Agreement.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements and
covenants set forth herein and in the Exchange Agreement, and intending to
be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE
I
VOTING
OF STOCK FOR DIRECTORS
SECTION
1.01 Vote
in Favor of the Directors.
During
the period commencing on the date hereof and terminating one year thereafter,
each Stockholder, in its capacity as a Stockholder of MPLC (or successor),
agrees to vote (or cause to be voted) all Stock directly or indirectly owned
by
the Stockholder or over which the Stockholder has the beneficial ownership
or
the right to vote and all Stock which such Stockholder acquires directly or
indirectly or has the beneficial ownership or right to vote in the future,
at
any meeting of the Stockholders of MPLC, and in any action by written consent
of
the Stockholders of MPLC, in favor of the election of one person designated
by
Xxxxxx (the “Xxxxxx Designee”) to the Board of Directors of MPLC and will not
vote (or cause to be voted) for the removal of the Xxxxxx Designee from the
Board of Directors. Notwithstanding the foregoing, the Xxxxxx Designee may
be
removed from the Board of Directors in the manner allowed by law and MPLC’s
governing documents, but in the event such Xxxxxx Designee is removed as a
director of the Company, Xxxxxx shall have the right to designate and nominate
such removed director's replacement.
SECTION
1.02 Size
of Board of Directors.
The
Stockholders agree that the Board of Directors of MPLC shall consist of three
to
seven persons during the term hereof, with the actual number to be determined
by
resolution of the Board of Directors and to initially equal six (6) members
effective as of the Closing, and the Stockholders will take all such action
to
set the number of directors consistent with this Section 1.02.
SECTION
1.03 Xxxxxx
Designee.
Neither
the Stockholders, nor any of the officers, directors, stockholders, members,
managers, partners, employees or agents of any Stockholder, makes any
representation or warranty as to the fitness or competence of the Xxxxxx
Designee to serve on the Board of Directors by virtue of such party’s execution
of this Agreement or by the act of such party in designating or voting for
such
Xxxxxx Designee pursuant to this Agreement.
SECTION
1.04 Term
of Agreement.
The
obligations of the Stockholders pursuant to this Article I shall terminate
on the first anniversary of the date of this Agreement.
ARTICLE
II
VOTING
FOR CORPORATE ACTIONS
SECTION
2.01 Vote
in Favor of Corporate Matters.
During
the term of this Agreement, each Stockholder hereby agrees and covenants to
vote
or cause to be voted all of his Stock then owned by him, or over which he has
voting power, and all Stock which such Stockholder acquires directly or
indirectly or has the beneficial ownership or right to vote in the future,
at
any regular or special meeting of stockholders, or, in lieu of any such meeting
promptly following the written request of any Stockholder, to give his written
consent in any action by written consent of the stockholders, in favor of each
of the following items (“Actions”):
(a) To
approve an increase in the authorized number of shares of Common Stock from
75,000,000 to 100,000,000;
(b) To
approve a 1 for 300 reverse stock split with special treatment for certain
of
MPLC’s stockholders to preserve round lot stockholders (“Reverse
Split”);
2
(c) To
approve the change of the name of MPLC to a name selected by the Stockholders
other than Xxxxxx;
(d) To
approve the adoption of a stock incentive plan (“Stock Plan”); and
(e) All
such
other actions as shall be reasonably necessary or desirable in connection with
or related to the foregoing actions in (a) through (d) above including, without
limitation, any amendment to the certificate of incorporation of MPLC to effect
the foregoing.
SECTION
2.02 Grant
of Proxy; Further Assurance.
In the
event that, in connection with any regular or special meeting of stockholders,
or, in lieu of any such meeting, with a written consent in any action by written
consent of the stockholders, within five (5) days following a written request
thereof by an executive officer of MPLC (or a representative thereof), a
Stockholder fails to vote or cause to be voted all of his Stock in favor of
the
Actions in accordance with the instructions set forth in such written request,
or to execute a written consent in connection therewith, each Stockholder,
by
this Agreement, with respect to all Stock over which it has voting authority
and
any Stock hereinafter acquired by such Stockholder over which it may have voting
authority, does hereby irrevocably constitute and appoint such executive
officer, or any nominee, with full power of substitution, as his or its true
and
lawful attorney and proxy, for and in his or its name, place and stead, to
vote
each of such Stock as such Stockholder’s proxy, at every annual, special or
adjourned meeting of the stockholders of MPLC (including the right to sign
his
or its name (as Stockholder) to any consent, certificate or other document
relating to MPLC that may be permitted or required by applicable law) in
favor of the adoption and approval of each of the Actions. This proxy extends
to
no other matter, except for the Actions as enumerated above. Each Stockholder
shall perform such further acts and execute such further documents and
instruments as may reasonably be required to vest in MPLC the power to carry
out
the provisions of this Agreement.
SECTION
2.03 Termination.
The
obligations of each Stockholder pursuant to this Article II shall terminate
upon
the adoption and approval of the Actions by the stockholders of MPLC.
SECTION
2.04 Obligations
as Director and/or Officer.
If a
Stockholder or any of its affiliates or nominees is a member of the board of
directors of MPLC (a “Director”) or an officer of MPLC (an “Officer”), nothing
in this Agreement shall be deemed to limit or restrict the Director or Officer
acting in his or her capacity as a Director or Officer of MPLC, as the case
may
be, and exercising his or her fiduciary duties and responsibilities, it being
agreed and understood that this Agreement shall apply to Stockholder solely
in
his or her capacity as a stockholder of MPLC and shall not apply to his or
her
actions, judgments or decisions as a Director or Officer of MPLC.
3
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES;
COVENANTS
OF THE STOCKHOLDERS
Each
Stockholder hereby severally represents, warrants and covenants to the other
Stockholders as follows:
SECTION
3.01 Authorization.
Such
Stockholder has full legal capacity and authority to enter into this Agreement
and to carry out such person’s obligations hereunder. This Agreement has been
duly executed and delivered by such Stockholder, and (assuming due
authorization, execution and delivery by the other Stockholders) this Agreement
constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
SECTION
3.02 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not, (i) conflict
with or violate any Legal Requirement applicable to such Stockholder or by
which
any property or asset of such Stockholder is bound or affected, or
(ii) result in any breach of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give
to
others any right of termination, amendment, acceleration or cancellation of,
or
result in the creation of any encumbrance on any property or asset of such
Stockholder, including, without limitation, the Stock, pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the performance by such
Stockholder of such Stockholder’s obligations under this Agreement.
SECTION
3.03 Litigation.
There
is no private or governmental action, suit, proceeding, claim, arbitration
or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the knowledge of such Stockholder or any of such Stockholder’s
affiliates, threatened against such Stockholder or any of such Stockholder’s
affiliates or any of their respective properties or any of their respective
officers or directors, in the case of a corporate entity (in their capacities
as
such) that, individually or in the aggregate, would reasonably be expected
to
materially delay or impair such Stockholder’s ability to consummate the actions
contemplated by this Agreement. There is no judgment, decree or order against
such Stockholder or any of such Stockholder’s affiliates, or, to the knowledge
of such Stockholder of any of such Stockholder’s affiliates, any of their
respective directors or officers, in the case of a corporate entity (in their
capacities as such), that would prevent, enjoin, alter or materially delay
any
of the actions contemplated by this Agreement, or that would reasonably be
expected to have a material adverse effect on such Stockholder’s ability to
consummate the actions contemplated by this Agreement.
4
SECTION
3.04 Title
to Shares.
Such
Stockholder is the legal and beneficial owner of its Stock free and clear of
all
Liens.
ARTICLE
IV
GENERAL
PROVISIONS
SECTION
4.01 Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by overnight courier service, by telecopy,
or by
registered or certified mail (postage prepaid, return receipt requested) to
the
respective parties at the following addresses (or at such other addresses as
shall be specified by notice given in accordance with this
Section 4.01):
(a) If
to any
Stockholder (other than Xxxxxx):
Xxxxxx
Xxxx
New
Motion, Inc.
00
Xxxx
Xxxx,
Xxxxx
000
Xxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
with
a
copy to
Xxxxxx
Xxxxxxxx & Markiles, LLP
00000
Xxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxxxxxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxx, Esq.
(000)
000-0000 telephone
(000)
000-0000 telecopy
(b) If
to
Xxxxxx:
Xxxxxx
Management, LLC
0000
Xxxxxx xx xxx Xxxxx
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxx X. Xxxxx
Phone:
________________
Fax:
__________________
5
with
a
copy to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxx, Esq.
Phone:
(000) 000-0000
Fax:
(000) 000-0000
SECTION
4.02 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
SECTION
4.03 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the
extent possible.
SECTION
4.04 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties,
or any of them, with respect to the subject matter hereof. This Agreement may
not be amended or modified except in an instrument in writing signed by, or
on
behalf of, the parties hereto.
SECTION
4.05 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event that
any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
SECTION
4.06 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware applicable to contracts executed in and to be performed
in
that State.
SECTION
4.07 Disputes.
All
actions and proceedings arising out of or relating to this Agreement shall
be
heard and determined exclusively in any state or federal court in Los Angeles
County, California.
SECTION
4.08 No
Waiver.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
6
SECTION
4.09 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
SECTION
4.10 Waiver
of Jury Trial.
To the
extent legally permissible, each of the parties hereto irrevocably and
unconditionally waives all right to trial by jury in any action, proceeding
or
counterclaim (whether based in contract, tort or otherwise) arising out of
or
relating to this Agreement or the Actions of the parties hereto in the
negotiation, administration, performance and enforcement thereof.
SECTION
4.11 Exchange
Agreement.
All
references to the Exchange Agreement herein shall be to such agreement as may
be
amended by the parties thereto from time to time.
[Signature
page(s) follows]
7
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
STOCKHOLDERS:
XXXXXX
CAPITAL MASTER FUND, LTD.
By:____________________________
Xxxxxx
X.
Xxxxx
Title:___________________________
EUROPLAY
CAPITAL ADVISORS, LLC
By:
____________________________
MPLC
HOLDINGS, LLC
By:_____________________________
________________________________
XXXXXXX
XXXXX
________________________________
XXXXX
XXXXXX
8
EXHIBIT A
STOCKHOLDERS
|
Name
of Stockholder
|
Number
of Shares Owned
Beneficially
and of Record (1)
|
|
Xxxxxx
Capital Master Fund, Ltd.
|
69,750,000
shares of Stock, 1 share
of
Series A Preferred Stock
|
|
Xxxxxxx
Xxxxx
|
30,000
shares of Series C Preferred Stock
|
|
MPLC
Holdings, LLC
|
188,496.5
shares of Series C Preferred Stock
|
|
Europlay
Capital Advisors, LLC
|
50,000
shares of Series C Preferred Stock
|
|
Xxxxx
Xxxxxx
|
161,578
shares of Series C Preferred Stock
|
(1)
Prior
to giving effect to the Reverse Split
(2)
Each
share of Series A Preferred Stock is convertible into 360,000,000 shares of
MPLC’s common stock (prior to giving effect to the Reverse Split), with
preferred stockholders voting with common stockholders on an as converted basis.
(3)
Each
share of Series C Preferred Stock is convertible into approximately 4358.213
shares of MPLC’s common stock (prior to giving effect to the Reverse Split),
with preferred stockholders voting with common stockholders on an as converted
basis.
