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EXHIBIT 4.8
IRREVOCABLE PROXY AGREEMENT
DATE: November 13, 1996
PARTIES: Xxxxxxx X. Xxxxxxx ("Proxy Holder"); and the owners and
holders of Common Stock of Piranha Interactive Publishing,
Inc., who are listed and whose signatures appear on Exhibit A
attached hereto (collectively, "Shareholders").
RECITALS:
The Shareholders presently own and hold an aggregate
of 375,000 shares of Common Stock, $.001 par value, of PIRANHA
INTERACTIVE PUBLISHING, INC., a Nevada corporation (the
"Company"), as set forth on Exhibit A attached hereto. The
Shareholders believe it to be in their respective best
interests that all such shares be voted by the Proxy Holder
for the period commencing with the date first set forth above
and terminating five (5) years thereafter, as more
particularly hereinafter set forth in this Irrevocable Proxy
Agreement ("Agreement"). All of the 375,000 shares are further
subject to the 13-month Lockup Agreements between the
respective Shareholders thereof and X.X. Xxxxx Investment
Banking Corp. (the "Lockup Agreements").
AGREEMENTS:
1. Appointment of Proxy Holder and Grant of Proxy.
(a) Each Shareholder, respectively, hereby appoints
the Proxy Holder to act as the proxy of such respective
Shareholder, and grants the Proxy Holder the power to vote
cumulatively or otherwise, any and all shares of the Common
Stock of the Company set opposite the Shareholder's respective
name and signature on Exhibit A hereto, and any additional
shares of Common Stock acquired subsequent to the date hereof
(collectively, the "Shares") at any annual or special meeting
of stockholders of the Company, or any adjournment or
adjournments thereof at which the Shares would be entitled to
vote.
(b) This Proxy is coupled with an interest and is
irrevocable, except as specifically hereinafter set forth.
(c) The Proxy Holder may vote the shares subject to
this Agreement in favor of the election of himself as a
director of the Company and of, and in favor of, the
ratification and approval of the acts of himself as a director
and an officer in the general conduct of the business affairs
of the Company.
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2. Term.
The term of this Agreement shall commence on the date first
above set forth and continue to and including the earlier of:
(a) 5:00 p.m., Phoenix, Arizona time on November 13,
2001; or
(b) The date on which the Proxy Holder shall cease to
be employed by the Company or resigns as Proxy Holder
hereunder, or dies; or
(c) Upon the unanimous written consent of all of the
holders of shares subject to this Agreement; or
(d) Upon the effective date of any (i) sale of all or
substantially all of the assets of the Company or (ii) merger
or consolidation involving the Company, as a result of which
the Company is not the surviving entity.
At the expiration or termination of the Term hereof as set
forth in (a), (b), (c) or (d) above, the Shares to which this Agreement
applies shall no longer be subject thereto and the Proxy Holder shall
notify the Company to instruct its Transfer Agent to issue new
certificates for such Shares without the legend set forth in paragraph
6 below, in exchange for and upon presentment and cancellation of the
certificates representing the Shares bearing such legend.
3. Compensation of Proxy Holder.
The Proxy Holder shall not be entitled to any compensation for
acting as Proxy Holder hereunder.
4. Liability of Proxy Holder.
The Proxy Holder shall not be liable for any act or omission
by him under this Agreement. The Proxy Holder shall be entitled to
interpret the terms of this Agreement and his construction made in good
faith shall be binding on the Shareholders and other interested
parties.
5. Resignation of Proxy Holder and Return of
Certificates.
The Proxy Holder may resign by mailing to the Company at its
principal office in Tempe, Arizona, his written resignation to take
effect ten (10) days thereafter and by providing notice of such
resignation to each of the Shareholders in accordance with Section 13
hereof. The Proxy Holder shall promptly surrender all certificates
representing the Shares upon his resignation.
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6. Legend on Stock Certificate.
Each certificate representing the Shares, and any replacement
thereof, subject to this Agreement, shall bear the following legend
until the termination of this Agreement:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF AN IRREVOCABLE PROXY
AGREEMENT DATED NOVEMBER 13, 1996 AMONG CERTAIN SHAREHOLDERS
OF THE COMPANY, A COPY OF WHICH IS ON FILE AND MAY BE
INSPECTED AT THE OFFICES OF THE COMPANY.
7. Additional Shares Acquired by Shareholders.
The Shareholders, respectively, as persons presently or in the
future entitled to receive shares of the Company's Common Stock which
have not yet been issued, or who shall subsequently purchase additional
shares of Common Stock from the Company or from third parties, hereby
severally agree to notify the Proxy Holder, Transfer Agent, and the
Company of any acquisition, direct or indirect, of additional Shares
and that such Shares shall be governed by the terms and conditions of
this Agreement.
8. Withdrawal of Shares.
Anything contained in this Agreement to the contrary
notwithstanding, for the period from the date of this Agreement until expiration
or termination of the Term hereof pursuant to paragraph 2 above, any
Shareholder, on ten (10) days' prior written notice to the Proxy Holder, may
withdraw from the Shares subject to this Agreement any Shares that the
Shareholder intends and is permitted to sell in accordance with the Lockup
Agreements and the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder. Any such withdrawn Shares may not be voted
by the Shareholder but only by the transferee of such Shares from the
Shareholder. Any such Shares which are not sold or otherwise transferred beyond
the control of the Shareholder within thirty (30) days of such notice shall be
deemed again to be subject to this Agreement. Upon notice of such sale to the
Proxy Holder and the Company, a new certificate for the Shares sold without the
legend set forth in paragraph 6 shall be issued to the owner as promptly as
practicable in exchange for the certificate bearing such legend.
9. Acts of Proxy Holder.
The Proxy Holder may vote in person, by proxy, or act by
written instrument without a meeting, signed by the Proxy Holder.
10. Proxy Holder's Relation with the Company.
The Proxy Holder may act as, and receive compensation as, a
director, an officer, an agent of the Company, or a member of any
committee of the Company, or of any
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controlled, subsidiary, or affiliated entity of the Company, or be
otherwise associated therewith. Additionally, the Proxy Holder or any
firm of which he may be a member, or any corporation or association of
which he may be a stockholder, director, or officer, or any such firm,
corporation or association in which he may be otherwise directly or
indirectly interested, may, to the extent permitted by law and without
liability in any way or under any circumstances by reason thereof,
contract with the Company or with any controlled, affiliated, or
subsidiary company, or be or become pecuniarily interested in any
matter or transaction to which the Company, or any controlled,
affiliated, or subsidiary entity of the Company, may in any way be
concerned, as fully as though he were not a Proxy Holder.
11. No Security for Performance.
The Proxy Holder shall not be required to give any bond or
security for the discharge of his duties.
12. Counterparts.
This Agreement may be executed in any number of copies and all
such counterparts taken together shall be deemed to constitute one and
the same Agreement.
13. Notices.
All notices and other communications hereunder shall be in
writing and delivered personally or, if mailed, sent by first class, registered
or certified mail, postage prepaid, as follows:
If to Shareholder: at his address shown on the
books and records of the Company
If to the Proxy Holder: c/o the address of the Company
If to the Transfer Agent: American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Either party may change the address to which notices are to be
sent to it by giving ten (10) days written notice of such change of address to
the other party in the manner above provided for giving notice. If delivered in
person, then such notice shall be effective immediately, if mailed, then
seventy-two (72) hours after deposit, postage prepaid.
14. Shareholder's Grant.
By their respective signatures set forth on Exhibit
A, each of the Shareholders hereby grants to the Proxy Holder an
irrevocable right, coupled with an interest to vote his or her Shares
in accordance with the terms of this Agreement.
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15. Proxy Holder's Acceptance.
The Proxy Holder, by signing this Agreement or a counterpart
thereof, accepts the proxy herein created.
Executed the day and year first above written.
AGREED:
PROXY HOLDER
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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EXHIBIT A
Dated: November 13, 1996
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ J. Xxxx Xxxxxxxxx XX
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J. Xxxx Xxxxxxxxx XX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
