Exhibit B
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of the
17th day of January, 2004 (the "Effective Date"), by and between MJG-IV LIMITED
PARTNERSHIP, a New York limited partnership ("MJG-IV") and Xxxxx X. Xxxxxxx (the
"Proxy Holder"). In consideration of the agreements and mutual covenants set
forth herein, the parties agree as follows:
1. Appointment of Proxy Holder. MJG-IV hereby grants to the Proxy Holder,
simultaneously with the execution of this Agreement, its proxy, with full power
of substitution, and grants the Proxy Holder complete control over all rights to
vote or consent (including rights to be present or absent for quorum purposes)
with respect to the 480,000 shares (the "Shares") of common stock of Xxxxx
Interactive Corporation (the "Company") that MJG-IV is purchasing from the Proxy
Holder in accordance with the terms of that certain Stock Option Agreement dated
December 4, 2003, between Xxxxx X. Xxxxxxx and M4E, L.L.C., of which the rights
of M4E, L.L.C. thereunder were assigned to MJG-IV.
2. Irrevocable Proxy.
(a) The irrevocable proxy created hereby shall expire on January 16, 2007,
or upon the Proxy Holder's death, if earlier, and throughout such period the
Proxy Holder shall have the exclusive right to vote the Shares or to give
written consents in lieu of voting thereon, subject to any limitation on the
right to vote contained in the certificate of incorporation of the Company, or
other certificate filed pursuant to law, in person or by proxy, at all meetings
of the stockholders of the Company, and in all proceedings wherein the vote or
written consent of stockholders may be required or authorized by law, subject to
such instructions as are contained in this Agreement. (b) The Proxy Holder may,
in his sole and absolute discretion, terminate this Agreement on thirty (30)
days notice.
3. Dividends. Notwithstanding anything to the contrary contained herein, at
all times MJG-IV shall be entitled to receive payments of dividends, if any,
upon their Shares. If any dividend in respect of the Shares is paid, in whole or
in part, in stock of the Company having general voting powers, the Proxy Holder
shall likewise have voting power, subject to the terms of this Agreement, for
stock which is received on account of such dividend.
4. Dissolution of Company. In the event of the dissolution or total or
partial liquidation of the Company, whether voluntary or involuntary, MJG-IV
shall receive the moneys, securities, rights, or property to which the holders
of the capital stock of the Company are entitled.
5. Rights of Proxy Holder.
(a) The Proxy Holder shall have the right, subject to the provisions set
forth in this Agreement, to exercise, in person or by his nominees or proxies,
all of MJG-IV's voting rights and powers in respect of all stock hereunder, and
to take part in or consent to any corporate or stockholders' action of any kind
whatsoever. The right to vote shall include the right to vote for the election
of directors, and in favor of or against any resolution or proposed action of
any character whatsoever, which may be presented at any meeting or require the
consent of stockholders of the Company. Without limiting such general right, it
is understood that such action or proceeding may include, upon terms
satisfactory to the Proxy Holder, or to his nominees or proxies thereto
appointed by him, the mortgaging of, creating a security interest in and/or
pledging of all or any part of the property of the Company; the lease or sale of
all or any part of the property of the Company; the commencement of voluntary
bankruptcy or similar insolvency proceedings by the Company; the commencement of
any business by the Company other than as stated in its certificate of
incorporation in effect on the date hereof; the amendment of the certificate of
incorporation of the Company; the dissolution of the Company; or the
consolidation, merger, reorganization, or recapitalization of the Company.
(b) In voting the stock held by him hereunder either in person or by his
nominees or proxies, the Proxy Holder shall exercise his best judgment to select
suitable directors of the Company, and, in voting upon any matters that may come
before him at any stockholders' meeting, the Proxy Holder shall exercise like
judgment.
6. Severability. Any provision of this Agreement prohibited or
unenforceable under any applicable law of any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction. Where, however,
the conflicting provisions of any such applicable law may be waived, they are
hereby waived by the parties hereto to the full extent permitted by law, to the
end that this Agreement shall be enforceable as written.
7. Successors. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, executors,
administrators, representatives, successors and assigns.
8. Modification and Amendment. This Agreement may not be modified or
amended except by a writing signed by each of the parties hereto.
9. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York.
10. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, and such counterparts shall together
constitute but one and the same instrument.
11. Pronouns. Whenever the context may require, any pronouns used herein
shall be deemed also to include the corresponding neuter, masculine or feminine
forms.
12. Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
13. Further Assurances. Each party shall cooperate and take such action as
may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
14. Entire Agreement. This Agreement represents the entire agreement among
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, written or oral, among the parties with respect
to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Proxy on the date
first mentioned above.
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Xxxxx X. Xxxxxxx, Proxy Holder
MJG-IV LIMITED PARTNERSHIP
By: ----------------------
