BITZUMI, INC. VOTING AGREEMENT
Exhibit 3.3
This
Voting Agreement (this “Agreement”) is
made as of January 10, 2018 by and among Bitzumi, Inc., a Delaware
corporation (the “Company”), the
persons and entities listed on Exhibit A (each a
“Major
Stockholder,” and collectively the “Major
Stockholders”), and the persons listed on Exhibit B (each a
“Purchaser,”
and collectively the “Purchasers”).
RECITALS
Each
Major Stockholder currently owns that number of shares of the
Company’s Common Stock indicated beside such Major
Stockholder’s name on Exhibit A
hereto.
The
Major Stockholders and the Company desire to induce the Purchasers
to purchase certain securities of the Company (the
“Securities”)
pursuant to that certain Securities Purchase Agreement of even data
herewith, by and among the Company and the Purchasers (the
“Purchase
Agreement”), and it is a condition to the closing of
the sale of the Securities to the Purchasers that the Major
Stockholders and the Company execute and deliver this Agreement to
provide the Purchasers the right, among other rights, to elect a
member of the Board of Directors of the Company (the
“Board”) in
accordance with the terms of this Agreement.
The
parties therefore agree as follows:
SECTION 1
VOTING
1.1 General. During the term of this Agreement, the Major
Stockholders agree to vote all shares of the Company’s voting
securities now or hereafter owned by them, whether beneficially or
otherwise, or as to which they have voting power (the
“Shares”)
in accordance with the provisions of this
Agreement.
SECTION 2
Election
of Directors
2.1 Voting. During the term of this Agreement, each Major
Stockholder agrees to vote all Shares in such manner as may be
necessary to elect (and maintain in office) as a member of the
Company’s Board, the Purchaser Designee (as defined below) as
one of the members of the Board; provided such Purchaser Designee
meeting the requirements set forth herein and of an independent
director as determined by the Company’s Eligible
Market.
2.2 Designation of
Directors. The
“Purchaser
Designee” shall be chosen
by the Purchasers for so long as they hold shares of Common Stock (including
Common Stock issuable upon exercise of warrants held by the
Purchasers) equal to or greater than one and one-half percent
(1.5%) of the total issued and outstanding shares of Common Stock
of the Company.
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2.3 Current
Designees. For the purpose of
this Agreement, the Purchaser Designee shall initially be
designated by the Purchasers upon written notice provided to the
Company.
2.4 Changes in
Designees. From time to time
during the term of this Agreement, the Purchasers, in their sole
discretion may:
(a) notify
the Company in writing of an intention to remove from the
Company’s Board any incumbent Purchaser Designee who occupies
a board seat; or
(b) notify
the Company in writing of an intention to select a new Purchaser
Designee for election to a board seat (whether to replace a prior
Purchaser Designee or to fill a vacancy in such board
seat).
In the
event of such an initiation of a removal or selection of a
Purchaser Designee under this section, the Company shall take such
reasonable actions as are necessary to facilitate such removals or
elections, including, without limitation, soliciting the votes of
the appropriate stockholders, and the Major Stockholders shall vote
their Shares to cause: (a) the removal from the Board of the
Purchaser Designee so designated for removal; and (b) the
election to the Board of any new Purchaser Designee so
designated.
2.5 No Liability for Election of
Recommended Director. None of
the parties and no officer, director, stockholder, partner,
employee or agent of any party makes any representation or warranty
as to the fitness or competence of the nominee of any party
hereunder to serve on the Board by virtue of such party’s
execution of this Agreement or by the act of such party in voting
for such nominee pursuant to this Agreement.
2.6 Failure to Designate a Board
Member. In the absence of any
designation from the Purchasers, the Purchaser Designee director
previously designated by them and then serving shall be reelected
if still eligible to serve as provided herein.
2.7 Removal of Board
Members. Each Major Stockholder
also agrees to vote, or cause to be voted, all Shares owned by such
Major Stockholder, or over which such Major Stockholder has voting
control, from time to time and at all times, in whatever manner as
shall be necessary to ensure that:
(a) no
director elected pursuant to Subsection 2.1 of this Agreement may
be removed from office other than for cause unless (i) such removal
is directed or approved by the Purchasers; or (ii) the Purchasers
are no longer so entitled to designate or approve such director or
occupy such Board seat;
(b) any
vacancies created by the resignation, removal or death of a
director elected pursuant to Subsection 2.1 shall be filled
pursuant to the provisions of this Section 2; and
(c) upon
the request of any party entitled to designate a director as
provided in Subsection 2.1 to remove such director, such director
shall be removed.
All
Major Stockholders agree to execute any written consents required
to perform the obligations of this Agreement, and the Company
agrees at the request of the Purchasers to call a special meeting
of stockholders for the purpose of electing directors.
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2.8 No “Bad Actor”
Designees. Each Purchaser
hereby represents and warrants to the Company that, to such
Purchaser’s knowledge, none of the “bad actor”
disqualifying events described in Rule 506(d)(1)(i)-(viii)
promulgated under the Securities Act of 1933, as amended (the
“Securities
Act”) (each, a
“Disqualification
Event”), is applicable to
such Person’s initial designee named above except, if
applicable, for a Disqualification Event as to which Rule
506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any director
designee to whom any Disqualification Event is applicable, except
for a Disqualification Event as to which Rule 506(d)(2)(ii) or
(iii) or (d)(3) is applicable, is hereinafter referred to as a
“Disqualified
Designee”. Each Person
with the right to designate or participate in the designation of a
director as specified above hereby covenants and agrees (A) not to
designate or participate in the designation of any director
designee who, to such Person’s knowledge, is a Disqualified
Designee and (B) that in the event such Person becomes aware that
any individual previously designated by any such Person is or has
become a Disqualified Designee, such Person shall as promptly as
practicable take such actions as are necessary to remove such
Disqualified Designee from the Board and designate a replacement
designee who is not a Disqualified Designee.
SECTION 3
TERMINATION
3.1 Termination. This Agreement shall terminate upon a Change of
Control Transaction. “Change of
Control Transaction”
means either (a) the acquisition of the Company by another
entity by means of any transaction or series of related
transactions to which the Company is party (including, without
limitation, any stock acquisition, reorganization, merger or
consolidation but excluding any sale of stock for capital raising
purposes) other than a transaction or series of transactions in
which the holders of the voting securities of the Company
outstanding immediately prior to such transaction continue to
retain (either by such voting securities remaining outstanding or
by such voting securities being converted into voting securities of
the surviving entity), as a result of shares in the Company held by
such holders prior to such transaction, at least fifty percent
(50%) of the total voting power represented by the voting
securities of the Corporation or such surviving entity outstanding
immediately after such transaction or series of transactions; or
(b) a sale, lease, transfer, exclusive license or other
conveyance or disposition of all or substantially all of the assets
of the Company.
SECTION 4
Additional
Shares
4.1 Additional
Shares. In the event that
subsequent to the date of this Agreement any shares or other
securities (other than pursuant to a Change of Control Transaction)
are issued on, or in exchange for, any of the Shares by reason of
any stock dividend, stock split, consolidation of shares,
reclassification or consolidation involving the Company, such
shares or securities shall be deemed to be Shares for purposes of
this Agreement.
SECTION 5
Restrictive
Legend
5.1 Restrictive
Legend. Each certificate
representing any of the Shares subject to this Agreement shall be
marked by the Company with a legend reading substantially as
follows:
THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY
OF WHICH MAY BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY
INTEREST IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE
DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SAID VOTING AGREEMENT.
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SECTION 6
miscellaneous
6.1 Certain
Definitions. Shares
“held” by a Major Stockholder shall mean any Shares
directly or indirectly owned (of record or beneficially) by such
Major Stockholder or as to which such Major Stockholder has voting
power. “Vote”
shall include any exercise of voting rights whether at an annual or
special meeting or by written consent or in any other manner
permitted by applicable law.
6.2 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, sent by facsimile or
electronic mail or otherwise delivered by hand, messenger or
courier service addressed:
(a) if
to Purchasers, to the address, facsimile number or electronic mail
address as shown in the Company’s records, as may be updated
in accordance with the provisions hereof, with a copy to ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇.
(b) if
to a Major Stockholder, to such Major Stockholder’s address,
facsimile number or electronic mail address as shown in the
exhibits to this Agreement or in the Company’s records, as
may be updated in accordance with the provisions hereof;
or
(c) if
to the Company, to the attention of the Chief Executive Officer of
the Company at ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, as may be updated in accordance with the provisions
hereof.
Each
such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given (i) if
delivered by hand, messenger or courier service, when delivered, or
(ii) if sent by mail, at the earlier of its receipt or
72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid, or (iii) if sent by
facsimile, upon confirmation of facsimile transfer or, if sent by
electronic mail, upon confirmation of delivery when directed to the
relevant electronic mail address. In the event of any conflict
between the Company’s books and records and this Agreement or
any notice delivered hereunder, the Company’s books and
records will control absent fraud or error.
6.3 Successors and
Assigns. The provisions of this
Agreement shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the
parties. The Company shall not permit the transfer of any Shares on
its books or issue a new certificate representing any Shares unless
and until the person to whom such security is to be transferred
shall have executed a written agreement pursuant to which such
person becomes a party to this Agreement and agrees to be bound by
all the provisions hereof as if such person was a Major Stockholder
hereunder.
6.4 Governing
Law. This Agreement shall be
governed in all respects by the internal laws of the State of New
York as applied to agreements entered into among New York residents
to be performed entirely within New York, without regard to
principles of conflicts of law.
6.5 Titles and
Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections, paragraphs
and exhibits shall, unless otherwise provided, refer to sections
and paragraphs hereof and exhibits attached
hereto.
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6.6 Further
Assurances. Each party agrees
to execute and deliver, by the proper exercise of its corporate,
limited liability company, partnership or other powers, all such
other and additional instruments and documents and do all such
other acts and things as may be necessary to more fully effectuate
this Agreement.
6.7 Entire
Agreement. This Agreement and
the exhibits hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects
hereof. No party shall be liable or bound to any other party in any
manner with regard to the subjects hereof or thereof by any
warranties, representations or covenants except as specifically set
forth herein.
6.8 Specific
Performance. It is agreed and
understood that monetary damages would not adequately compensate an
injured party for the breach of this Agreement by any party, that
this Agreement shall be specifically enforceable, and that any
breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining
order. Further, each party waives any claim or defense that there
is an adequate remedy at law for such breach or threatened
breach.
6.9 Amendment. Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument
referencing this Agreement and signed by (i) the Company,
(ii) Major Stockholders holding a majority of the common stock
(determined on an as-converted basis) held by all Major
Stockholders and (iii) the Purchasers. Any such amendment, waiver,
discharge or termination effected in accordance with this paragraph
shall be binding upon each party that has entered into this voting
agreement.
6.10 No Waiver. The failure or delay by a party to enforce any
provision of this Agreement will not in any way be construed as a
waiver of any such provision or prevent that party from thereafter
enforcing any other provision of this Agreement. The rights granted
to the parties hereunder are cumulative and will not constitute a
waiver of any party’s right to assert any other legal remedy
available to it.
6.11 Jurisdiction and
Venue. With respect to any
disputes arising out of or related to this Agreement, the parties
consent to the exclusive jurisdiction of, and venue in, the state
or federal courts sitting in the City of New York, Borough of
Manhattan.
6.12 Attorney’s
Fees. In the event that any
suit or action is instituted to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled
to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable
fees and expenses of attorneys and accountants, which shall
include, without limitation, all fees, costs and expenses of
appeals.
6.13 Stock Splits, Stock Dividends,
etc.
In
the event of any issuance of Shares of the Company’s voting
securities hereafter to any of the Major Stockholders (including,
without limitation, in connection with any stock split, stock
dividend, recapitalization, reorganization, or the like), such
Shares shall become subject to this Agreement and shall be notated
with the legend set forth in Subsection 5.1.
6.14 Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, portions of such provision, or such
provision in its entirety, to the extent necessary, shall be
severed from this Agreement, and such court will replace such
illegal, void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent
possible, the same economic, business and other purposes of the
illegal, void or unenforceable provision. The balance of this
Agreement shall be enforceable in accordance with its
terms.
6.15 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same agreement.
Facsimile or electronic copies of signed signature pages will be
deemed binding originals.
6.16 Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED
TO THIS AGREEMENT.
(signature
pages follow)
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The
parties are signing this Voting Agreement as of the date stated in
the introductory clause.
a
Delaware corporation
By:
Name:
Title:
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The
parties are signing this Voting Agreement as of the date stated in
the introductory clause.
MAJOR
STOCKHOLDER
▇▇▇▇
▇▇▇▇▇
(Signature)
(Print
name of signatory, if signing for an entity)
(Print
title of signatory, if signing for an entity)
River
Asset Management, Inc.
(Signature)
(Print
name of signatory, if signing for an entity)
(Print
title of signatory, if signing for an entity)
-7-
The
parties are signing this Voting Agreement as of the date stated in
the introductory clause.
PURCHASER
Acacia
Research Corporation
(Signature)
(Print
name of signatory, if signing for an entity)
(Print
title of signatory, if signing for an entity)
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EXHIBIT A
MAJOR INVESTORS
|
NAME
|
NUMBER
OF SHARES OF COMMON STOCK
|
|
▇▇▇▇
▇▇▇▇▇
|
33,500,000
|
|
River
Asset Management, Inc.
|
10,750,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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EXHIBIT B
PURCHASERS
Acacia
Research Corporation
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