Exhibit 10.2
VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “ Agreement ”) is entered
into as of September 16, 2008, by and between Morlex, Inc., a
Colorado corporation (“ Morlex ”), and the
undersigned shareholder (the “ Shareholder ”) of
Commerce Planet, Inc., a Utah corporation (the “
Company ”).
RECITALS
WHEREAS, concurrently with the execution and
delivery of this Agreement, Morlex and the Company are entering
into an Asset Purchase Agreement, by and among Morlex, Superfly
Advertising, Inc., an Indiana corporation and wholly-owned
subsidiary of Morlex (the “ Purchaser ”), the
Company, Legacy Media, LLC, a California limited liability company
and wholly-owned subsidiary of the Company (“ Legacy
”) and Consumer Loyalty Group, LLC, a California limited
liability company and wholly-owned subsidiary of the Company
(“ CLG ” and collectively with Legacy, the
“ Sellers ”), of even date herewith (the “
Purchase Agreement ”). Pursuant to the
Purchase Agreement, the Purchaser has agreed to purchase certain of
the assets used or held for use by the Sellers in the conduct of
the Business (the “ Acquisition
”). Capitalized terms used herein without
definition have the meanings set forth in the Purchase
Agreement;
WHEREAS, in connection with the Purchase
Agreement, Morlex has agreed to make a Loan to the Company to be
evidenced by that certain Note which will be guaranteed by the
Sellers pursuant to that certain Guaranty of the Sellers, and
secured by certain Pledged Accounts pursuant to that certain Pledge
Agreement among Morlex and the Sellers;
WHEREAS, as of the date hereof, the Shareholder
is the record holder and beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”) of such number of shares of the
outstanding common stock, $0.001 par value, of the Company (the
“ Company Common Stock ”) as is indicated on the
signature page of this Agreement (the “ Existing
Shares ”); and
WHEREAS, as an inducement and a condition to the
willingness of Morlex and the Purchaser to make the Loan and enter
into the Purchase Agreement, as applicable, Morlex desires the
Shareholder to agree, and the Shareholder is willing to agree, not
to transfer or otherwise dispose of any of the Existing Shares, or
any other shares of capital stock of the Company acquired hereafter
and prior to the Expiration Date (as defined in Section 1.1 below),
except as otherwise permitted hereby, and to vote the Existing
Shares and any other such shares of capital stock of the Company in
a manner so as to facilitate the consummation of the Acquisition,
as provided herein.
NOW,
THEREFORE, in consideration of the foregoing, and the respective
representations, warranties, covenants, agreements and conditions
contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1.
Agreement to Retain Shares .
1.1
Transfer and Encumbrance . Other than as provided herein,
until the Expiration Date, Shareholder shall not hereafter:
(a) sell, tender, transfer, pledge, encumber, assign or
otherwise dispose of any of the Existing Shares or New Shares (as
defined in Section 1.2 below); (b) deposit any Existing Shares
or New Shares into a voting trust or enter into a voting agreement
or arrangement with respect to such Existing Shares or New Shares
or grant any proxy or power of attorney with respect thereto;
(c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, transfer,
pledge, encumbrance, assignment or other disposition of any
Existing Shares or New Shares; or (d) take any action that
would make any representation or warranty of Shareholder contained
herein untrue or incorrect or have the effect of preventing or
disabling Shareholder from performing Shareholder’s
obligations under this Agreement. As used herein, the term “
Expiration Date ” shall mean the earlier to occur of
(i) the Closing, or (ii) such date and time as the Purchase
Agreement shall be terminated pursuant to Article XI
thereof.
1.2
Additional Purchases . Shareholder agrees that
any shares of capital stock of the Company that Shareholder
purchases or with respect to which Shareholder otherwise acquires
beneficial ownership after the execution of this Agreement and
prior to the Expiration Date (the “ New Shares
”) shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Existing
Shares.
2.
Agreement to Vote Shares . During the term
hereof, at every meeting of the shareholders of the Company called
with respect to any of the following matters, and at every
adjournment thereof, and on every action or approval by written
consent of the shareholders of the Company with respect to any of
the following matters, Shareholder, in his, her or its capacity as
such, shall appear, or otherwise cause the Existing Shares and any
New Shares to be counted as present for purposes of determining a
quorum, and vote, or cause to be voted, the Existing Shares and any
New Shares: (a) in favor of the approval and adoption of the
Purchase Agreement and the Acquisition and any matter necessary for
consummation of the Acquisition; (b) against (i) any
proposal for any action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation
or agreement of the Company or any Seller under the Purchase
Agreement or which could result in any of the conditions of the
obligations of the Company or any Seller under the Purchase
Agreement not being fulfilled, and (ii) any action which could
reasonably be expected to impede, interfere with, delay, postpone
or materially adversely affect consummation of the transactions
contemplated by the Purchase Agreement; and (c) in favor of
any other matter necessary for consummation of the transactions
contemplated by the Purchase Agreement which is considered at any
such meeting of shareholders or in such consent, and in connection
therewith to execute any documents which are necessary or
appropriate in order to effectuate the foregoing or, at the request
of Morlex, to permit Morlex to vote such Existing Shares and any
New Shares directly.
3.
Irrevocable Proxy . By execution of this
Agreement, Shareholder does hereby appoint and constitute Morlex,
until the Expiration Date, with full power of substitution and
resubstitution, as Shareholder’s true and lawful attorney and
irrevocable proxy, to the full extent of the undersigned’s
rights with respect to the Existing Shares and any New Shares, to
vote each of such Existing Shares and any New Shares solely with
respect to the matters set forth in Section 2
hereof. Shareholder intends this proxy to be irrevocable
and coupled with an interest hereafter until the Expiration Date,
and hereby revokes any proxy previously granted by Shareholder with
respect to the Existing Shares.
4.
Representations and Warranties of the Shareholder
. Shareholder hereby represents, warrants and covenants
to Morlex as follows:
4.1
Authorization . Shareholder has full power,
corporate or otherwise, and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement
has been duly executed and delivered by or on behalf of Shareholder
and constitutes a legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its
terms. The Shareholder has not granted any proxies relating to,
transferred any interests in or otherwise granted any rights with
respect to, the Existing Shares.
4.2
No Conflict, Violation; Consents .
(a) The
execution and delivery of this Agreement by Shareholder do not, and
the performance by Shareholder of the obligations under this
Agreement and the compliance by Shareholder with any provisions
hereof does not and will not, (i) conflict with or violate any
law, statute, rule, regulation, order, writ, judgment or decree
applicable to Shareholder or the Existing Shares, (ii
