FORM OF VOTING AGREEMENT
Exhibit
10.4
FORM OF
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of
this
day
of ,
2009, (the “Agreement”), by and among
SearchMedia Holdings Limited, a Cayman Islands company
(collectively with all predecessors thereof, the
“Company”), and each of the shareholders
and other security holders of the Company identified on the
signature pages hereto (each, a “Shareholder,”
and collectively the
“Shareholders”). All capitalized terms
used but not defined in this Agreement shall have the meanings
ascribed to them in the Share Exchange Agreement (as defined
below).
WHEREAS, each of Ideation Acquisition Corp. and certain of the
Shareholders, among others, have entered into an Agreement and
Plan of Merger, Conversion and Share Exchange,
dated ,
2009 (the “Share Exchange Agreement”)
that provides for the acquisition of SearchMedia International
Limited’s issued share capital and warrants by the Company
through an exchange transaction; and
WHEREAS, as a condition to the closing of the Share Exchange
Agreement, the Shareholders have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
expressly and mutually acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
| 1. | REPRESENTATIONS AND WARRANTIES. |
Each of the parties hereto, by their respective execution and
delivery of this Agreement, hereby represents and warrants to
the other party hereto that:
(a) such party has the full right, capacity and authority
to enter into, deliver and perform this Agreement;
(b) this Agreement has been duly executed and delivered by
such party and is a binding and enforceable obligation of such
party, enforceable against such party in accordance with the
terms of this Agreement; and
(c) the execution, delivery and performance of such
party’s obligations under this Agreement will not require
such party to obtain the consent, waiver or approval of any
Person and will not violate, result in a breach of, or
constitute a default under any statute, regulation, agreement,
judgment, consent, or decree by which such party is bound.
| 2. | SHARES SUBJECT TO AGREEMENT |
Each Shareholder, severally and not jointly, agrees to vote all
of his, her or its voting shares of the Company then owned by
such Shareholder, whether now owned or hereafter acquired
(hereafter referred to as the “Voting
Shares”), in accordance with the provisions of this
Agreement.
| 3. | OBLIGATIONS TO VOTE VOTING SHARES FOR SPECIFIC NOMINEE |
At any annual or special meeting called, or in connection with
any other action (including the execution of written consents)
taken for the purpose of electing directors to the board of
directors of the Company (the “Board”),
each of the Shareholders agrees, for a period commencing from
the Closing Date of the Share Exchange Agreement and ending not
sooner than the third anniversary of the Closing Date of the
Share Exchange Agreement (the “Voting
Period”), to vote all of his, her or its Voting
Shares in favor of the persons nominated by the Ideation
Representative and the SM Shareholders’ Representatives.
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| 4. | OBLIGATIONS TO VOTE VOTING SHARES FOR REMOVAL OF DIRECTOR; FILLING VACANCIES |
During the Voting Period, the Ideation Representative and the SM
Shareholders’ Representatives shall have the right to
request the resignation or removal of their respective elected
nominees to the Board (including, with respect to the SM
Shareholders’ Representatives, the Director Nominees
nominated by the SM Shareholders). In such event, each of the
Shareholders agrees to vote all of his, her or its Voting Shares
in a manner that would cause the removal of such director,
whether at any annual or special meeting called, or, in
connection with any other action (including the execution of
written consents) taken for the purpose of removing such
director. In the event of the resignation, death, removal or
disqualification of any such elected nominee to the Board
(including, with respect to the SM Shareholders’
Representatives, the Director Nominees nominated by the SM
Shareholders), the Ideation Representative or the SM
Shareholders’ Representatives, as the case may be, shall
promptly nominate a new director and, after written notice of
the nomination has been given by the Ideation Representative or
the SM Shareholders’ Representatives to the Shareholders,
each Shareholder will vote all his, her or its Voting Shares to
elect such nominee to the board of directors of the Company.
| 5. | COVENANT TO VOTE |
Each Shareholder shall appear in person or by proxy at any
annual or special meeting of shareholders of the Company for the
purpose of obtaining a quorum and shall vote all Voting Shares
owned by such Shareholder, either in person or by proxy, at any
annual or special meeting of shareholders of the Company called
for the purpose of voting on the election of directors or by
written consent of shareholders with respect to the election of
directors, in favor of the election of the persons nominated by
the Ideation Representative and the SM Shareholders’
Representatives. In addition, each Shareholder shall appear in
person or proxy at any annual or special meeting of shareholders
of the Company for the purpose of obtaining a quorum and shall
vote, or shall execute and deliver a written consent with
respect to, all Voting Shares owned by such Shareholder,
entitled to vote upon any other matter submitted to a vote of
shareholders of the Company in a manner so as to be consistent
and not in conflict with, and to implement, the terms of this
Agreement.
| 6. | ADDITIONAL SHARES |
If, after the effective date hereof, the Shareholders or any of
their affiliates acquire beneficial or record ownership of any
additional shares of the Company (any such shares,
“Additional Shares”), including, without
limitation, upon exercise of any option, warrant or right to
acquire shares of the Company or through any stock dividend or
stock split, the provisions of this Agreement shall thereafter
be applicable to such Additional Shares as if such Additional
Shares had been held by the Shareholders as of the effective
date hereof. The provisions of the immediately preceding
sentence shall be effective with respect to Additional Shares
without action by any person or entity immediately upon the
acquisition by the Shareholders of the beneficial ownership of
the Additional Shares. The Shareholders shall use reasonable
efforts to cause any affiliate that acquires Additional Shares
to enter into a written joinder to this Agreement substantially
in the form attached hereto as Exhibit A.
| 7. | TRANSFER RESTRICTIONS |
Each Shareholder agrees that he, she or it shall not transfer
any Voting Shares unless he, she or it shall cause any
transferee who acquires, in one or more transactions, more than
500,000 shares of the Company from such Shareholder to
execute and deliver a joinder substantially in the form of
Exhibit A hereto to the Company. The foregoing
restriction will not apply (a) to any transfers made in
connection with an underwritten secondary offering of shares
owned by any Shareholder or (b) to any sales or transfers
by Shareholders in any open-market transaction. Each
certificate, if any, representing any shares of the Company held
by either party shall be endorsed with a legend reading
substantially as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING
AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST
FROM THE ISSUER), AND BY
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ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH
INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY
ALL THE PROVISIONS OF SAID VOTING AGREEMENT.”
| 8. | TERMINATION |
This Agreement shall commence on the Closing Date of the Share
Exchange Agreement and continue in force and effect until the
earlier of (i) the third anniversary of the Closing Date,
or (ii) a Change of Control that results in the issuance of
the Maximum Earn-Out Shares pursuant to Section 5.2(b)(v)
of the Share Exchange Agreement. Upon the termination of this
Agreement, except as otherwise set forth herein, the
restrictions and obligations set forth herein shall terminate
and be of no further effect, except that such termination shall
not affect rights perfected or obligations incurred under this
Agreement prior to such termination.
| 9. | GENERAL PROVISIONS |
(a) Notices. Unless otherwise provided
herein, all notices, requests, waivers and other communications
made pursuant to this Agreement will be in writing and will be
given in accordance with the notice provisions of the Share
Exchange Agreement.
(b) Captions and Headings. The captions
and headings used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting
this Agreement.
(c) Enforceability; Severability. The
parties hereto agree that each provision of this Agreement will
be interpreted in such a manner as to be effective and valid
under applicable law. If one or more provisions of this
Agreement are nevertheless held to be prohibited, invalid or
unenforceable under applicable law, such provision will be
effective to the fullest extent possible excluding the terms
affected by such prohibition, invalidity or unenforceability,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement. If the prohibition,
invalidity or unenforceability referred to in the prior sentence
requires such provision to be excluded from this Agreement in
its entirety, the balance of the Agreement will be interpreted
as if such provision were so excluded and will be enforceable in
accordance with its terms.
(d) Entire Agreement. This Agreement
constitutes the entire agreement among the parties with respect
to the subject matter hereof and no party will be liable or
bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth
herein.
(e) Equitable Relief. The parties hereto
recognize that, if such party fails to perform or discharge any
of its obligations under this Agreement, any remedy at law may
prove to be inadequate relief to the other parties. Each party
hereto therefore agrees that the other parties are entitled to
seek temporary and permanent injunctive relief and any other
equitable remedy a court of competent jurisdiction may deem
appropriate in any such case.
(f) Manner of Voting. The voting of
shares pursuant to this Agreement may be effected in person, by
proxy, by written consent or in any other manner permitted by
applicable law.
(g) Governing Law. This Agreement shall
be construed in accordance with, and governed in all respects
by, the laws of the State of New York.
(h) Disputes. Except with respect to
equitable relief as provided for herein, any controversy or
claim arising out of or relating to this contract, or the breach
thereof, shall be determined by arbitration administered by the
International Centre for Dispute Resolution in accordance with
its International Arbitration Rules. The number of arbitrators
shall be three. The place of arbitration shall be Xxx Xxxx Xxxx,
Xxx Xxxx, Xxxxxx Xxxxxx of America. The language of the
arbitration shall be English.
(i) Delays or Omissions. No delay or
omission to exercise any right, power or remedy accruing to any
party under this Agreement, or upon any breach or default of any
other party under this Agreement, will impair any such right,
power or remedy of such non-breaching or non-defaulting party
nor will it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar
breach or
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default thereafter occurring; nor will any waiver of any single
breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any
party of any provisions or conditions of this Agreement, must be
in writing and will be effective only to the extent specifically
set forth in such writing. Except as otherwise set forth herein,
all remedies, either under this Agreement or by Law or otherwise
afforded to any party, will be cumulative and not alternative.
(j) Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute
one instrument.
(k) Amendments. Any term of this
Agreement may be amended only with the written consent of the
parties hereto.
(l) No Third Party Beneficiaries. This
Agreement is made and entered into for the sole protection and
benefit of the parties hereto, their successors, assigns and
heirs, and no other person or entity shall have any right or
action under this Agreement.
(m) Controlling Agreement. To the extent
the terms of this Agreement (as amended, supplemented, restated
or otherwise modified from time to time) directly conflicts with
a provision in the Share Exchange Agreement, the terms of this
Agreement shall control.
[Signatures
begin on next page.]
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IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
SEARCHMEDIA HOLDINGS LIMITED
By:
Name:
Title:
SHAREHOLDERS:
XXXXXXX XXX
x
x
XX XXXX
CHINA SEED VENTURES MANAGEMENT LIMITED, as general
partner for and on behalf of
CHINA SEED VENTURES, L.P.
By:
Name: Xxxx Xxx
Title: Managing Director
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GENTFULL INVESTMENT LIMITED
| By: |
Name: Xx. Xxxx Xxxx
Title: Director
| By: |
Name: Xx. Xxxx Xxxxx
Title: Director
GAVAST ESTATES LIMITED
| By: |
Name: Xx. X.X. Xxxx
Title: Director
| By: |
Name: Xx. XXXX Yui Wing
Title: Director
LINDEN VENTURES II (BVI), LTD.
| By: |
Name:
Title: Authorized Signatory
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FROST GAMMA INVESTMENTS TRUST
| By: |
Name:
Title:
XXXXXX X. XXXXX
XXXXXXXX XXXXXXXX
XXXXXX X. XXXXX
XXXX XXXXX
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Exhibit A
Joinder to Voting Agreement
By execution of this Joinder, the undersigned (the
“Shareholder”) hereby joins in, agrees to become a
party to, be bound by, and subject to, all of the covenants,
terms and conditions of that certain Voting Agreement, dated as
of ,
2009 (as the same may be amended, supplemented or otherwise
modified from time to time, the “Voting Agreement”),
by and among SearchMedia Holdings Limited, a Cayman Islands
company, and certain of its shareholders in the same manner as
if the Shareholder were an original signatory to such Voting
Agreement.
The Shareholder shall have all the rights, and shall observe all
the obligations, applicable to a Shareholder under the Voting
Agreement.
The Shareholder represents and warrants that he/she/it has
received a copy of, and has reviewed the terms of, the Voting
Agreement.
All questions concerning the construction, validity and
interpretation of this Joinder will be governed by and construed
in accordance with the internal laws of the state of New York.
IN WITNESS WHEREOF, the Shareholder has executed this
Joinder as of
this
day
of , .
SHAREHOLDER
with copies to:
| By: |
Address for
Notices:
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