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Exhibit 10.1
COMPANY VOTING AND LOCK-UP AGREEMENT
This Company Voting and Lock-Up Agreement (the "VOTING AGREEMENT")
is
made as of December 27, 2005, by and among
JAG Media Holdings, Inc., a Nevada
corporation ("PARENT"), Robert Barra and
Michael A. Vitale, each a stockholder
(each individually, a "STOCKHOLDER" and
together, the "STOCKHOLDERS") of
Cryptometrics, Inc., a Delaware
corporation. (the "COMPANY").
RECITALS:
WHEREAS, concurrently with the execution and delivery of this
Voting
Agreement, Parent, Cryptometrics
Acquisition, Inc., a Delaware corporation and
wholly owned subsidiary of Parent ("MERGER
SUB") and the Company are entering
into an Agreement and Plan of Merger of
even date herewith (the "MERGER
AGREEMENT"), pursuant to which Merger Sub
will be merged with and into the
Company, and the Company shall be the
surviving corporation following the merger
(the "MERGER");
WHEREAS, as of the date hereof, each Stockholder is a Beneficial
Owner
(as defined below) of Subject Shares (as
defined below); and
WHEREAS, in order to induce Parent to enter into the Merger
Agreement,
the Stockholders have agreed to enter into
this Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and of
the
covenants and agreements set forth herein
and in the Merger Agreement, and
intending to be legally bound hereby, the
parties agree as follows:
1. Definitions.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNER" with respect to
any
securities means having "beneficial
ownership" as determined pursuant to Rule
13d-3 under the Securities Exchange Act of
1934, as amended (the "EXCHANGE
ACT").
(b) "COMPANY CAPITAL STOCK" means shares of common stock, par
value
$0.001 per share, of the Company.
(c) "COMPANY OPTIONS AND OTHER RIGHTS" means options, warrants
and
other rights to acquire, directly or
indirectly, shares of Company Capital
Stock.
(d) "EXPIRATION DATE" means the earlier to occur of (i) the
Effective Time (as defined in the Merger
Agreement) or (ii) the date on which
the Merger Agreement is terminated pursuant
to its terms.
(e) "SUBJECT SHARES" means (i) all shares of Company Capital
Stock
Beneficially Owned by each Stockholder as
of the date of this Voting Agreement
and (ii) all additional shares of Company
Capital Stock of which each
Stockholder acquires Beneficial Ownership
during the period from the date of
this Voting Agreement through the
Expiration Date.
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2. Voting.
(a) Each Stockholder hereby agrees that, prior to the
Expiration
Date, at any meeting of the stockholders of
the Company, however called, and in
any written action by consent of
stockholders of the Company, unless otherwise
directed in writing by Parent, each
Stockholder shall cause to be counted as
present thereat for purposes of
establishing a quorum and shall vote, or cause
to be voted, any and all Subject Shares
Beneficially Owned by each Stockholder
as of the record date of such meeting or
written consent:
(i) for the execution and delivery by the Company of the Merger
Agreement and the adoption and approval of
the Merger Agreement and the terms
thereof, in favor of each of the other
actions contemplated by the Merger
Agreement and in favor of any action in
furtherance of any of the foregoing;
(ii) against any action or agreement that would result in a
breach
of any representation, warranty, covenant
or obligation of the Company in the
Merger Agreement; and
(iii) against the following actions (other than the Merger and
the
transactions contemplated by the Merger
Agreement): (A) any extraordinary
corporate transaction, such as a merger,
consolidation or other business
combination involving the Company or any
subsidiary of the Company; (B) any
sale, lease, sublease, license, sublicense
or transfer of a material portion of
the rights or other assets of the Company
or any subsidiary of the Company; (C)
any reorganization, recapitalization,
dissolution or liquidation of the Company
or any subsidiary of the Company; (D) any
change in the individuals who serve as
members of the board of directors of the
Company; (E) any amendment to the
Company's certificate of incorporation or
bylaws; (F) any material change in the
capitalization of the Company or the
Company's corporate structure; and (G) any
other action which is intended, or could
reasonably be expected, to impede,
interfere with, delay, postpone, discourage
or adversely affect the Merger or
any of the other transactions contemplated
by the Merger Agreement or this
Agreement.
(b) No provision contained in this Agreement shall prohibit
either
Stockholder from voting in his capacity as
a director of the Company in any
manner whatsoever.
(c) Prior to the Expiration Date, neither Stockholder shall
enter
into any agreement or understanding with
any Person requiring him to vote in his
capacity as a stockholder or give
instructions in any manner inconsistent with
clause "(i)," clause "(ii)" or clause
"(iii)" of this Section 2(a).
(d) Each Stockholder hereby waives and agrees not to exercise
any
applicable "appraisal rights" under the
Delaware General Corporation Law with
respect to the Subject Shares in connection
with the Merger and the Merger
Agreement.
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3. Lock-up Agreement.
(a) In consideration of the issuance of common stock of Parent
in
exchange for the Subject Shares (the
"PARENT SHARES") to each of the
Stockholders pursuant to the terms of the
Merger Agreement, and of other good
and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, and not withstanding any
registration on the part of the Parent
Shares under the Securities Act of 1933, as
amended, each Stockholder agrees
that, during the period beginning from the
Effective Time (as defined in the
Merger Agreement) and continuing for one
(1) year thereafter (the "RELEASE
DATE"), each Stockholder will not (a)
offer, sell, contract to sell, pledge,
grant any option to purchase, make any
short sale or otherwise dispose of any
Parent Shares, or (b) engage directly or
indirectly in any transaction the
likely result of which would involve a
transaction prohibited by clause (a),
except each case as permitted by Section
3(e) below.
(b) The foregoing restriction is expressly agreed to preclude
each
of the Stockholders from engaging in any
hedging or other transaction which is
designed to, or reasonably expected to lead
to, or result in, a sale or
disposition of the Parent Shares even if
such shares would be disposed of by
someone other than the Stockholders. Such
prohibited hedging or other
transactions would include without
limitation any short sale or any purchase,
sale or grant of any right (including
without limitation any put or call option)
with respect to any of the Parent Shares or
with respect to any security that
includes, relates to, or derives any
significant part of its value from the
Parent Shares.
(c) Each Stockholder further represents and agrees that the
undersigned has not taken and will not
take, directly or indirectly, any action
which is designed to or which has
constituted or which might reasonably be
expected to cause or result in
stabilization or manipulation of the price of any
security of Parent to facilitate the sale
or resale of the Parent Shares, or
which has otherwise constituted or will
constitute any prohibited bid for or
purchase of the Parent Shares or any
related securities.
(d) Each Stockholder acknowledges and agrees that, pending the
Release Date, any additional Parent Shares
acquired by such Stockholder upon
exercise of Replacement Stock Options (as
defined in the Merger Agreement) may
not be sold or otherwise transferred
notwithstanding that a registration
statement on Form S-8 or Form S-4 may be
effective with respect to the exercise
of such options and the sale of Parent
Shares obtained thereby.
(e) Notwithstanding the foregoing restrictions on transfer,
each
Stockholder may transfer the Parent Shares
(i) in an amount not to exceed 35% of
the total amount of Parent Shares received
by such Stockholder pursuant to the
Merger; provided however that such Parent
Shares may not be transferred unless
the Parent Shares are registered under the
Securities Act of 1933, as amended,
or (ii) as transfers by will or intestacy,
or (iii) to any trust for the direct
or indirect benefit of any of the
Stockholder or the immediate family of such
Stockholder; provided that any such
transfer shall not involve a disposition for
value. For purposes of this letter
agreement, "immediate family" shall mean any
relationship by blood, marriage or
adoption, not more remote than first cousin.
(f) Each of the Stockholders now has, and, except as contemplated
by
the preceding paragraph (e), at all times
prior to the Release Date will have,
good and marketable title to the Parent
Shares still owned by him, free and
clear of all liens, encumbrances, and
claims whatsoever. Each of the
Stockholders agrees and consents to the
entry of stop transfer instructions with
the Company's transfer agent and registrar
against the transfer of the Parent
Shares except in compliance with the
foregoing restrictions in Sections 3(a) and
(e) above. Each of the Stockholders und
