EXHIBIT 10.8
VOTING AGREEMENT AND PROXY
This VOTING AGREEMENT AND PROXY, dated as of March 21, 2005, (this
"Agreement"), is by and among MEDIABAY, INC., a Florida corporation (the
"Company"), XXXXXX XXXXXXX, an individual residing in the State of
_____________, and HUNTINGTON CORPORATION, a Delaware corporation (each, a
"Shareholder" and collectively, the "Shareholders").
A. The Company is entering into a Securities Purchase Agreement, dated as
of March 21, 2005, between the Company and the Investors identified therein (the
"Purchase Agreement"), pursuant to which the Company has agreed to issue to the
Investors, and each of the Investors has agreed to purchase, shares of the
Company's Series D Convertible Preferred Stock (the "Preferred Shares") and
warrants to purchase shares of the Company's common stock ("Common Stock") and
additional Preferred Shares and Additional Warrants (as defined in the Purchase
Agreement), and it is a condition to the obligations of the Investors under the
Purchase Agreement to consummate the transactions thereunder that the
Shareholders and the Company enter into this Agreement.
B. Each Shareholder is the owner of shares of the capital stock of the
Company set forth opposite its respective name on Exhibit A hereto (the "Subject
Shares") and will derive substantial benefit from the consummation of the
transactions contemplated by the Purchase Agreement.
C. The Shareholders, together with certain other shareholders of the
Company, have heretofore executed and delivered to the Company a Written Consent
of the Majority Shareholders in Lieu of a Meeting in accordance with Section
607.0704 of the Florida Business Corporation Act and the Articles of
Incorporation and Bylaws of the Company (the "Stockholder Consent"), consenting
to and approving (x) the issuance of shares of Common Stock in excess of the Cap
Amount (as defined in the Purchase Agreement) in connection with the
transactions contemplated by the Purchase Agreement and other Transaction
Documents (as defined in the Purchase Agreement) and (y) an amendment to the
Articles of Incorporation of the Company increasing the number of share of the
Company's authorized Common Stock from 150,000,000 to 300,000,000 and (z) solely
for purposes of applicable Nasdaq regulations and listing requirements, a change
of control of the Company.
NOW THEREFORE, in order to induce the Investors to enter into and to
consummate the transactions contemplated by the Purchase Agreement, and in
consideration of the mutual covenants contained herein, and intending to be
legally bound hereby, the Shareholders and the Company hereby agree as follows:
1. No Conflicting Action. During the term of this Agreement, each
Shareholder agrees not to vote the Subject Shares or take any action by written
consent with respect thereto, other than any vote cast or action by consent
taken by the Proxyholder (as defined below) in accordance with the terms of
Section 2 hereof. Without limiting the generality of the foregoing, each
Shareholder agrees not to vote the Subject Shares or take action by written
consent with respect to the Subject Shares (or authorize any other Person (as
defined in the Purchase Agreement) to do so), or take any other action (i) that
revokes, amends or supersedes the Stockholder Consent or (ii) that is in any way
inconsistent with the provisions of this Agreement or the consummation of the
transactions contemplated by the Purchase Agreement. Notwithstanding the
foregoing, nothing herein shall prohibit the Shareholders from entering into the
securities purchase agreement in substantially the form attached as Exhibit B
hereto or from selling any of the Subject Shares pursuant thereto.
2. Grant of Proxy. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Shareholder hereby appoints
the Chairman of the Board of Directors of the Company (the "Board of
Directors"), the chief executive officer of the Company, and/or such other
member or members of the Board of Directors as may be designated from time to
time by a majority of the Board of Directors, and each of them, as proxies
(collectively, the "Proxyholder"), in the name, place and stead of such
Shareholder, with respect to the Subject Shares (as such Subject Shares may be
adjusted for any stock dividends, stock splits, combinations, mergers,
reorganizations and similar events), to vote at any meeting of the stockholders
of the Company, or at any adjournment or adjournments thereof, or by written
consent in lieu of meeting of the stockholders, according to the number of votes
that such Shareholder would, if personally present, be entitled to vote with
respect to the Subject Shares, to effect any matter which may be brought before
such meeting or which may be the subject of such written consent; provided, that
the Subject Shares shall be voted, or action by consent taken, only (a) in favor
of such matters as are approved by the Board of Directors or (b) otherwise at
the direction of the Board of Directors; and provided, further, that
notwithstanding the foregoing, the Proxyholder shall not have any power or
authority to vote the Subject Shares, or to take action by consent with respect
thereto, in a manner that is prohibited by Section 1 hereof. The proxy hereby
granted is coupled with an interest and is irrevocable for the term of this
Agreement, shall survive the death, dissolution or incapacity of the
Shareholder, and to the extent provided in Section 4 hereof, shall be binding
upon the transferees of the Subject Shares and the successors and assigns
(whether by operation of law or otherwise) of the Shareholder.
3. Representations and Warranties. Each Shareholder hereby represents and
warrants to the Company and agrees with the Company that, with respect to the
Subject Shares set forth opposite its name on Exhibit A hereto:
(a) such Shareholder is the sole record and beneficial owner of such
Subject Shares;
(b) such Shareholder has not transferred or assigned to any other person
any of such Subject Shares or any interest therein; and
(c) such Shareholder has the right to vote such Subject Shares and,
except as expressly provided by this Agreement, no other person has
a right to vote or to direct the vote of such Subject Shares.
4. Successors and Assigns; Transfer of Subject Shares. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties. Each Shareholder
agrees not to sell, transfer, assign, pledge, hypothecate or otherwise dispose
of any of the Subject Shares (a "Disposition"), other than a Permitted
Disposition (as defined below), unless the purchaser, transferee or assignee, as
the case may be, agrees in writing to be bound by the provisions of this
Agreement. "Permitted Disposition" shall mean a Disposition that is (i) an open
market transaction pursuant to a registration statement filed and declared
effective under the Securities Act of 1933, as amended (the "Securities Act"),
(ii) a sale under Rule 144 promulgated under the Securities Act, or (iii) a bona
fide sale to a Person that is not an Affiliate (as defined in the Purchase
Agreement) of a Shareholder or, in the case of a Shareholder that is an
individual, a member of such Shareholder's family. Any Subject Shares sold in a
Permitted Disposition shall cease to be Subject Shares.
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5. Third Party Beneficiaries; Specific Enforcement. Each Investor is a
third party beneficiary of this Agreement and each of the provisions hereof.
Each Shareholder agrees that its obligations hereunder are necessary and
reasonable in order to protect the Company and the Investors, and each
Shareholder expressly agrees and understands that monetary damages would
inadequately compensate an injured party for the breach of this Agreement by
such Shareholder, that this Agreement will be specifically enforceable, and
that, in addition to any other remedies that may be available at law, in equity
or otherwise, any breach or threatened breach of this Agreement will be the
proper subject of a temporary or permanent injunction or restraining order,
without the necessity of proving actual damages. Further, each Shareholder
waives any claim or defense that there is an adequate remedy at law for such
breach or threatened breach.
6. Severability. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
provision; provided, that in such case the parties shall negotiate in good faith
to replace such provision with a new provision which is not illegal,
unenforceable or void, as long as such new provision does not materially change
the substantive rights, benefits and obligations of the parties to this
Agreement.
7. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed under the laws of the State of New York applicable to contracts made
and to be performed entirely within the State of New York, except, to the extent
that provisions hereof relate to matters governed by the Florida Business
Corporation Act, such provisions shall be governed thereby. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts sitting in the City and County of New York for the adjudication of any
dispute hereunder and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding involving or relating to this Agreement, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law.
8. Amendments and Waivers. Any term hereof may be amended and the
observance of any term hereof may be waived only with the written consent of the
Company, the Shareholders and Investors holding at least two-thirds (2/3) of the
then outstanding Preferred Shares. Any waver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
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9. Expiration of Obligations. This Agreement, the proxy granted hereby and
the obligations of the parties hereunder shall terminate on the first Business
Day following the date on which Stockholder Approval (as defined in the Purchase
Agreement) is obtained.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument. This Agreement may be executed and delivered by
facsimile transmission.
11. Headings. The headings used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
12. Notices. Any notice, demand or request required or permitted to be
given hereunder shall be in writing and shall be deemed delivered (i) when
delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day (as defined in the Purchase
Agreement), in which case such delivery will be deemed to be made on the next
succeeding Business Day, (ii) on the next Business Day after timely delivery to
an overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the address for the Shareholders or
the Company, as the case may be, that appears on the signature page hereof or as
shall from time to time be designated by either party in a writing delivered to
the Company in accordance with this Section 12.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with regard to the subject matter hereof and thereof,
superseding all prior agreements or understandings, whether written or oral,
between or among the parties.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first-above written.
MEDIABAY, INC.
Address:
By:__________________________ 0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Name: Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Title: Attn: Chief Executive Officer and
Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Blank Rome LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
HUNTINGTON CORPORATION
Address:
By:__________________________ 0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxxxx Cedar Knolls, New Jersey 07927
President Attn: President
Fax: [____________]
__________________________ Address:
Xxxxxx Xxxxxxx, individually
0 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Fax: [____________]
Exhibit A
Shares of the Company's Capital Stock Held by the Shareholder
Shareholder Class of Capital Stock Number of Shares
Huntington Corporation Common Stock 5,892,586
Series C Preferred Stock 4,065,769
Xxxxxx Xxxxxxx Common Stock 9,348,267
Series A Preferred Stock 2,556,428
Series C Preferred Stock 1,514,615
Exhibit B
Form of Securities Purchase Agreement
See Exhibit No. 10.1.
