STOCKHOLDER AGREEMENT
This
Stockholder Agreement (this “Agreement”) is
entered into as of September 26, 2007 by and among Traffix,
Inc., a Delaware corporation (“Company”), and the
other parties listed on Exhibit 1 hereto (each a
“Stockholder” and, collectively, the
“Stockholders”) of New Motion, Inc., a Delaware
corporation (the “Parent”).
PREAMBLE
A.
Parent,
NM Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent (“Merger Co.”), and 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.
Each
Stockholder owns beneficially and of record that number of
shares of the Parent’s common stock, par value $0.01 per
share (the “Parent Common Stock”), opposite his or
her or its name set forth on
Exhibit 1 hereto
(the “Initial Stockholder Shares”).
D.
As
a condition to the willingness of Company to enter into the
Merger Agreement, and as an inducement to it to do so, each
Stockholder has agreed to vote all the Initial Stockholder
Shares and all other shares of Parent 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 such
Stockholder on the record date of the meeting of Parent
stockholders to approve 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 .
Each Stockholder hereby revokes any and all previous proxies
granted with respect to its Stockholder Shares. By entering into
this Agreement, each 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, each Stockholder hereby agrees (i) to vote all
Stockholder Shares now or hereafter acquired by each 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 such 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 Parent, and (c) any amendment to the
Parent’s certificate of incorporation or the Parent’s
by-laws or other proposal or transaction involving the Parent or
any subsidiary of the Parent, 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 Parent’s capital stock. No
Stockholder shall 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, each Stockholder hereby irrevocably
appoints Company, with full power of substitution (Company and its
substitutes being referred to herein as the “Proxy”),
as the true and lawful attorney and proxy of such Stockholder to
vote all Stockholder Shares of such Stockholder on matters as to
which such Stockholder is entitled to vote at a meeting of the
stockholders of the Parent or to which such 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. Each
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 Parent and vote all Stockholder Shares of such
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 such Stockholder any written consent to,
or dissent from, corporate action respecting any matter specified
in Section 1.1 above. Such Stockholder agrees to refrain from (A)
voting the Stockholder Shares of such Stockholder at any annual or
special meeting of the stockholders of the Parent 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
Parent in any manner inconsistent with the terms of this Agreement,
(C) exercising any rights of dissent with respect to the
Stockholder Shares of such Stockholder, and (D) granting any proxy
or authorization to any person with respect to the voting of the
Stockholder Shares of such Stockholder, except pursuant to this
Agreement, or taking any action contrary to or in any manner
inconsistent with the terms of this Agreement. Each 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, each 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 such 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 such Stockholder or any interest therein; (iii) deposit
the Stockholder Shares of such 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 such Stockholder that would in any way restrict, limit or
interfere with the performance of its obligations
hereunder.
(b)
Each Stockholder agrees to place the following legend on any
and all certificates evidencing the Stockholder Shares of such
Stockholder:
THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
STOCKHOLDER AGREEMENT BY AND AMONG TRAFFIX, INC. AND CERTAIN
STOCKHOLDERS. 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.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each
Stockholder, severally and not jointly, represents and
warrants to Company that:
SECTION
2.1.
Ownership .
Such Stockholder is the sole, true, lawful record and beneficial
owner of the Stockholder Shares of such Stockholder and that there
are no rest
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