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STOCKHOLDER AGREEMENT
This
Stockholder Agreement (this “Agreement”) is
entered into as of September 26, 2007 among New Motion, Inc.,
a Delaware corporation (“Parent”), and Jeffrey L.
Schwartz (the “Stockholder”).
PREAMBLE
A.
Parent,
NM Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger Co.”), and Traffix,
Inc., a Delaware corporation (the “Company”) are
parties to an Agreement and Plan of Merger dated of even date
herewith (such Agreement and Plan of Merger, as amended from
time to time, the “Merger Agreement”). Any
capitalized term used but not defined herein shall have
meaning ascribed to such term in the Merger
Agreement.
B.
The
Merger Agreement provides, among other things, that Merger Co.
shall merge with and into the Company (the
“Merger”), upon the terms and subject to the
conditions set forth in the Merger Agreement.
C.
The
Stockholder owns beneficially and of record that number of
shares of the Company’s common stock, par value $0.001
per share (the “Company Common Stock”), opposite
his name set forth on
Exhibit 1 hereto
(the “Initial Stockholder Shares”).
D.
As
a condition to the willingness of Parent to enter into the
Merger Agreement, and as an inducement to it to do so, subject
to the provisions of this Agreement, the Stockholder has
agreed to vote all the Initial Stockholder Shares and all
other shares of Company Common Stock acquired by such
Stockholder in any capacity after the date hereof and prior to
the termination of this Agreement in accordance with its
terms, whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or
exchangeable securities, by means of purchase, dividend,
distribution or otherwise, and that are owned by the
Stockholder on the record date of the meeting of Company
stockholders to approve adopt the Merger Agreement
(collectively, the “Stockholder Shares” of such
Stockholder), in favor of approval and adoption of the Merger
Agreement.
Therefore,
the parties hereby agree as follows, intending to be legally
bound:
AGREEMENT
ARTICLE
I
CONSENT AND VOTING
SECTION
1.1.
Voting .
The Stockholder hereby revokes any and all previous proxies granted
with respect to his Stockholder Shares. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement
and the transactions contemplated thereby, including the Merger. So
long as this Agreement is in effect and has not been terminated,
the Stockholder hereby agrees (i) to vote all Stockholder Shares
now or hereafter acquired by the Stockholder in favor of adoption
of the Merger Agreement
and
approval of the Merger and the other transactions contemplated
thereby and (ii) to oppose any Acquisition Proposal and to vote all
Stockholder Shares now or hereafter acquired by the Stockholder
against (a) any transaction arising out of or relating to an
Acquisition Proposal and against any Acquisition Proposal, (b) any
merger agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company, and (c) any amendment to the
Company’s certificate of incorporation or the Company’s
by-laws or other proposal or transaction involving the Company or
any subsidiary of the Company, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or
nullify any provision of the Merger Agreement, the Merger or any
other transaction contemplated thereby or change in any manner the
voting rights of any class of the Company’s capital stock.
The Stockholder shall not commit or agree to take any action
inconsistent with the foregoing.
SECTION
1.2
Proxy .
In order to fully implement the agreement of each Stockholder set
forth in Section 1.1 above, the Stockholder hereby irrevocably
appoints Parent, with full power of substitution (Parent and its
substitutes being referred to herein as the “Proxy”),
as the true and lawful attorney and proxy of the Stockholder to
vote all Stockholder Shares of the Stockholder on matters as to
which the Stockholder is entitled to vote at a meeting of the
stockholders of the Company or to which the Stockholder is entitled
to express consent or dissent to corporate action in writing
without a meeting, in the Proxy’s absolute, sole and binding
discretion, on the matters specified in Section 1.1 above. The
Stockholder agrees that the Proxy may, in such Stockholder’s
name and stead, (i) attend any annual or special meeting of the
stockholders of the Company and vote all Stockholder Shares of the
Stockholder at any such annual or special meeting as to the matters
specified in Section 1.1 above, and (ii) execute with respect to
all Stockholder Shares of the Stockholder any written consent to,
or dissent from, corporate action respecting any matter specified
in Section 1.1 above. The Stockholder agrees to refrain from (A)
voting the Stockholder Shares of the Stockholder at any annual or
special meeting of the stockholders of the Company in any manner
inconsistent with the terms of this Agreement, (B) executing any
written consent in lieu of a meeting of the stockholders of the
Company in any manner inconsistent with the terms of this
Agreement, (C) exercising any rights of dissent with respect to the
Stockholder Shares of the Stockholder, and (D) granting any proxy
or authorization to any person with respect to the voting of the
Stockholder Shares of the Stockholder, except pursuant to this
Agreement, or taking any action contrary to or in any manner
inconsistent with the terms of this Agreement. The Stockholder
agrees that this grant of proxy and appointment of attorney is
irrevocable and coupled with an interest and agrees that the person
designated as Proxy pursuant hereto may at any time name any other
person as its substituted Proxy to act pursuant hereto, either as
to a specific matter or as to all matters.
SECTION
1.3.
Transfer .
(a) Until this Agreement is terminated, the Stockholder shall not
directly or indirectly (i) offer to sell, sell short, transfer
(including gift), assign, pledge or otherwise dispose of or
transfer (each, a “Transfer”) any interest in, or
encumber with any Lien (as defined below), any of the Stockholder
Shares of the Stockholder, (ii) enter into any contract, option,
put, call, “collar” or other agreement or understanding
with respect to any Transfer of any or all of the Stockholder
Shares of the Stockholder or any interest therein; (iii) deposit
the Stockholder Shares of the Stockholder into a voting trust or
enter into a voting agreement or arrangement with respect thereto;
or (iv) take any other action with respect to the Stockholder
Shares of the Stockholder that would in any way restrict, limit or
interfere with the performance of its obligations
hereunder.
(b)
The Stockholder agrees to place the following legend on any
and all certificates evidencing the Stockholder Shares of the
Stockholder:
THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
STOCKHOLDER AGREEMENT BY AND BETWEEN NEW MOTION, INC. AND
JEFFREY L. SCHWARTZ. ANY TRANSFER OF SUCH SHARES OF COMMON
STOCK IN VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE
NULL AND VOID AND OF NO EFFECT WHATSOEVER.
(c)
Notwithstanding any other provisions of this Agreement,
including, without limitation, Sections 1.1, 1.2,
1.3(a) ,
1.3(b) and
4.1, the
Stockholder shall have the unfettered right to Transfer those
Stockholder Shares that are subject to that certain trading
plan (the “10b5-1 Plan”) that complies with the
requirements of Rule 10b5-1(c)(1) under the Exchange Act (as
hereinafter defined) to which the Stockholder is a party on
the date hereof plus
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