Contract
Exhibit 10.2
8
THIS
VOTING AGREEMENT (this “Agreement”) is dated as of
_________________, by and between Dome Ventures Corporation, a Delaware
corporation (“Dome”),
and _______________ (“Stockholder”).
RECITALS
WHEREAS, Metalline Mining
Company, a Nevada corporation (“Metalline”), Metalline Mining Delaware, Inc.
(“Merger Sub”), a Delaware corporation and Dome have entered into an
Agreement and Plan of Merger and Reorganization (as it may be amended,
supplemented, modified or waived from time to time, the “Merger Agreement”), which
provides, among other things, for the merger of Merger Sub with and into Dome
(the “Merger”), upon the
terms and subject to the conditions set forth therein;
WHEREAS,
Stockholder is the record and Beneficial Owner (as defined below) of, and has
the sole right to vote and dispose of, that number of Shares (as defined below)
set forth below Stockholder’s name on the signature page hereto;
and
WHEREAS,
as an inducement to Dome entering into the Merger Agreement and incurring the
obligations therein, Dome has required that certain Stockholders enter into this
Agreement.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE
1 - CERTAIN DEFINITIONS
Section
1.1 Capitalized
Terms. For this purposes of this Agreement:
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(a)
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“Beneficial Owner” or
“Beneficial
Ownership” with respect to any securities means having “beneficial
ownership” of such securities (as determined pursuant to Rule 13d-3 under
the Exchange Act).
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(b)
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“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
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(c)
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“Expiration Time” has the
meaning set forth in Section 2.1.
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(d)
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“Law” means “Laws”
means any federal, national, supranational, state, provincial, local or
similar constitution, statute, law, ordinance, regulation, rule, code,
order, requirement or rule of law (including common
law).
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(e)
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“Owned Shares” means the
Shares of which Stockholder is the Beneficial Owner as of the date of this
Agreement and set forth below his name on the signature page hereto and
any additional Shares of which Stockholder becomes the Beneficial Owner
after the date of this Agreement including upon the exercise of stock
options, warrants or other rights to acquire
Shares.
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(f)
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“Person” means any
individual, partnership, firm, corporation, limited liability company,
association, trust, unincorporated organization or other entity, as well
as any syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Exchange
Act.
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(g)
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“Representative” means,
with respect to any particular Person, any director, officer, employee,
consultant, accountant, legal counsel, investment banker or other
representative of such Person.
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(h)
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“Shares” means shares of
common stock, par value $0.01 per share of Metalline, and will also
include for purposes of this Agreement all shares or other voting
securities into which Shares may be reclassified, sub-divided,
consolidated or converted and any rights and benefits arising therefrom,
including any dividends or distributions of securities which may be
declared in respect of the Shares and entitled to vote in respect of the
matters contemplated by Article 2.
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(i)
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“Transfer” means, with
respect to a security, the sale, grant, assignment, transfer, pledge,
encumbrance or other disposition of such security or the Beneficial
Ownership thereof (including by operation of Law), or the entry into any
contract to effect any of the foregoing, including, for purposes of this
Agreement, the transfer or sharing of any voting power of such security or
other rights in or of such
security.
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ARTICLE
2 - AGREEMENT TO VOTE
Section
2.1 Agreement to
Vote. Subject to the terms and conditions hereof, Stockholder
irrevocably and unconditionally agrees that from and after the date hereof and
until the earliest to occur of (i) the Effective Time and (ii) the
termination of the Merger Agreement in accordance with its terms (the “Expiration Time”), at any
meeting (whether annual or special, and at each adjourned or postponed meeting)
of Metalline’s stockholders, however called, for the purpose of, or in
connection with any written consent of Metalline’s stockholders with respect to,
seeking any stockholder approval (an “Approval”) required in
connection with or related to the Merger Agreement (a “Stockholder Meeting”),
Stockholder will (x) appear at such meeting or otherwise cause the Owned
Shares to be counted as present thereat for purposes of calculating a quorum,
and respond to each request by Dome for written consent, if any and
(y) vote, or cause to be voted (including by written consent, if
applicable), all of the Owned Shares (A) in favor of any Approval,
including the Share Issuance (as defined in the Merger Agreement) (whether or
not recommended by the Board of Directors of Metalline or any committee
thereof), (B) against any Competing Transaction (as defined in the Merger
Agreement) submitted by Metalline for a vote by its stockholders, and
(C) against any proposal made in opposition to, or in competition or
inconsistent with, the purposes and intents of the Merger Agreement or the
Merger.
Section
2.2 Additional
Shares. Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Dome of the number of any new Shares with respect to
which Beneficial Ownership is acquired by Stockholder, if any, after the date
hereof and before the Expiration Time. Any such Shares shall automatically
become subject to the terms of this Agreement as though owned by Stockholder as
of the date hereof.
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Section
2.3 Restrictions on Transfer,
Etc. Stockholder agrees, from the date hereof until the
Expiration Time, not to (i) directly or indirectly Transfer any Owned
Shares, (ii) tender any Owned Shares into any tender or exchange offer or
otherwise or (iii) grant any proxy with respect to the Owned Shares,
deposit the Owned Shares into a voting trust, enter into a voting agreement with
respect to any of the Owned Shares or otherwise restrict the ability of
Stockholder freely to exercise all voting rights with respect thereto. Any
action attempted to be taken in violation of the preceding sentence will be null
and void. Stockholder further agrees to authorize and request Metalline and Dome
to notify Metalline’s transfer agent that there is a stop transfer order with
respect to all of the Owned Shares (other than in respect of Transfers expressly
permitted by this Section 2.3) and that this Agreement places limits on the
voting of the Owned Shares.
Section
2.4 Proxies. Stockholder
hereby revokes any and all previous proxies granted with respect to his Owned
Shares. By entering into this Agreement, subject to the last sentence of this
Section 2.4, Stockholder hereby irrevocably grants a proxy appointing Dome with
full power of substitution, as Stockholder’s attorney-in-fact and proxy, for and
in Stockholder’s name, to be counted as present, vote, express consent or
dissent with respect to his Owned Shares solely on the matters set forth in, and
in the manner contemplated by, Section 2.1. The proxy granted by Stockholder
pursuant to this Section 2.4 is, subject to the last sentence of this Section
2.4, irrevocable and is coupled with an interest, in accordance with
Section 78.355 of the Nevada Revised Statues, and is granted in order to
secure Stockholder’s performance under this Agreement and also in consideration
of Dome entering into this Agreement and the Merger Agreement. If Stockholder
fails for any reason to be counted as present, consent or vote the Owned Shares
in accordance with the requirements of Section 2.1 above (or anticipatorily
breaches such section), then Dome shall have the right to cause to be present,
consent or vote Stockholder’s Owned Shares in accordance with the provisions of
Section 2.1. The proxy granted by Stockholder shall be automatically revoked
upon termination of this Agreement in accordance with its terms.
ARTICLE
3 - REPRESENTATIONS AND WARRANTIES
Section
3.1 Representations and Warranties of
Stockholder. Stockholder represents and warrants to Dome as of
the date of this Agreement, as of the date of any Company Stockholders Meeting
(and as of the date of any adjournment or postponement thereof) and as of the
date of the execution of any written Stockholder consent or any proxy permitted
under this Agreement or consented to by Dome, as follows:
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(a)
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Stockholder
has the requisite capacity and authority to execute and deliver this
Agreement and to fulfill and perform his obligations hereunder. This
Agreement has been duly and validly executed and delivered by Stockholder
and constitutes a legal, valid and binding agreement of Stockholder
enforceable by Dome against Stockholder in accordance with its
terms.
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(b)
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Stockholder
is the record and Beneficial Owner, free and clear of any liens (other
than those arising under this Agreement or except as otherwise noted
herein) of the Owned Shares and, except as provided in this Agreement, has
full and unrestricted power to dispose of and vote all of the Owned Shares
without the consent or approval of, or any other action on the part of any
other Person, and has not granted any proxy inconsistent with this
Agreement that is still effective or entered into any voting or similar
agreement with respect to, the Owned Shares. The Owned Shares
set forth below Stockholder’s name on the signature page hereto constitute
all of the capital stock of Metalline that is Beneficially Owned by
Stockholder as of the date hereof, and Stockholder does not have any right
to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing), any Shares or any securities convertible
into or exercisable for Shares).
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(c)
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Other
than the filing by Stockholder of any reports with the SEC required by
Section 13(d) or 16(a) of the Exchange Act, none of the execution and
delivery of this Agreement by Stockholder, the consummation by Stockholder
of the transactions contemplated hereby or compliance by Stockholder with
any of the provisions hereof (i) requires any consent or other permit
of, or filing with or notification to, any governmental entity or any
other person by Stockholder, (ii) results in a violation or breach
of, or constitutes (with or without notice or lapse of time or both) a
default (or gives rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any organizational document or contract
to which Stockholder is a party or by which Stockholder or any of
Stockholder’s properties or assets (including the Owned Shares) may be
bound, (iii) violates any order or law applicable to Stockholder or
any of Stockholder’s properties or assets (including the Owned Shares) or
(iv) results in a lien upon any of Stockholder’s properties or assets
(including the Owned Shares).
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(d)
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Stockholder
has received an execution copy of the Merger Agreement and has read the
Merger Agreement and this Agreement in consultation with his personal
counsel.
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ARTICLE
4 - ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Section
4.1 Waiver of Appraisal
Rights. Stockholder hereby waives any rights of appraisal or
rights of dissent from the Merger that Stockholder may have.
Section
4.2 Disclosure. Stockholder
hereby authorizes Dome and Metalline to publish and disclose in any announcement
or disclosure required by the SEC, Stockholder’s identity and ownership of the
Owned Shares and the nature of Stockholder’s obligation under this Agreement,
provided that Stockholder is provided with a reasonable opportunity to review
and comment on such disclosure.
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Section
4.3 Non-Interference; Further
Assurances. Stockholder agrees that prior to the termination
of this Agreement, Stockholder shall not take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing, impeding, interfering with or adversely
affecting the performance by Stockholder of its obligations under this
Agreement. Stockholder agrees, without further consideration, to execute and
deliver such additional documents and to take such further actions as necessary
or reasonably requested by Dome to confirm and assure the rights and obligations
set forth in this Agreement or to consummate the transactions contemplated by
this Agreement.
Section
4.4 No
Solicitation. Subject to Section 6.13, Stockholder agrees,
solely in his capacity as the Beneficial Owner of the Owned Shares, that he
shall not, and shall cause his Representatives not to, directly or indirectly,
(i) initiate, solicit or knowingly encourage (including by way of providing
information) or knowingly facilitate any inquiries, proposals or offers with
respect to, or the making, or the completion of, a Competing Transaction,
(ii) participate or engage in any discussions or negotiations with, or
furnish or disclose any non-public information relating to Metalline or any of
its subsidiaries to, or otherwise knowingly cooperate with or knowingly assist
any Person in connection with a Competing Transaction, (iii) approve,
endorse or recommend any Competing Transaction, (iv) enter into any letter
of intent, agreement in principle, merger agreement, acquisition agreement,
option agreement or other similar agreement relating to a Competing Transaction,
or (v) resolve, propose or agree to do any of the foregoing, including any
agreement with respect to Stockholder’s potential investment in connection with
any transaction or resulting entity. If, prior to the Expiration Time,
Stockholder receives a proposal with respect to the sale of Shares in connection
with a Competing Transaction, then Stockholder will promptly (and in any event
within 24 hours) inform Dome of the identity of the Person making, and the
material terms of, such proposal.
ARTICLE
5 - TERMINATION
Section
5.1 Termination. This
Agreement will terminate without further action at the Expiration
Time.
Section
5.2 Effect of
Termination. Upon termination of this Agreement, the rights
and obligations of all the parties will terminate and become void without
further action by any party except for the provisions of Section 5.1, this
Section 5.2 and Article 6, which will survive such termination. For the
avoidance of doubt, the termination of this Agreement shall not relieve any
party of liability for any breach of this Agreement (excluding an unintentional
breach) prior to the time of termination.
ARTICLE
6 - GENERAL
Section
6.1 Notices. Any
notice, request, instruction or other communication under this Agreement will be
in writing and delivered by hand or overnight courier service or by facsimile,
(i) if to Stockholder, to the address set forth below his name on the
signature page hereto, and (ii) if to Dome, in accordance with
Section 7.8 of the Merger Agreement, or to such other Persons, addresses or
facsimile numbers as may be designated in writing by the Person entitled to
receive such communication as provided above. Each such communication will be
effective (A) if delivered by hand or overnight courier service, when such
delivery is made at the address specified in this Section 6.1, or (B) if
delivered by facsimile, when such facsimile is transmitted to the facsimile
number specified in this Section 6.1 and appropriate confirmation is
received.
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Section
6.2 No Third Party Beneficiaries,
Etc. This Agreement is not intended to confer any rights or
remedies upon any person other than the parties to this Agreement, or to make
Stockholder responsible for any of Dome’s obligations under the Merger
Agreement.
Section
6.3 Governing Law. This Agreement
will be governed by, and construed in accordance with, the Laws of the State of
Colorado, without giving effect to any applicable principles of conflict of laws
that would cause the Laws of another State to otherwise govern this
Agreement.
Section
6.4 Severability. The
provisions of this Agreement are severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions of this Agreement. If any provision of this Agreement,
or the application of that provision to any Person or any circumstance, is
invalid or unenforceable, (i) a suitable and equitable provision will be
substituted for that provision in order to carry out, so far as may be valid and
enforceable, the intent and purpose of the invalid or unenforceable provision
and (ii) the remainder of this Agreement and the application of that
provision to other Persons or circumstances will not be affected by such
invalidity or unenforceability, nor will such invalidity or unenforceability
affect the validity or enforceability of that provision, or the application of
that provision, in any other jurisdiction.
Section
6.5 Assignment. Neither
this Agreement nor any right, interest or obligation hereunder may be assigned
by any party hereto, in whole or part (whether by operation of Law or
otherwise), without the prior written consent of the other parties hereto and
any attempt to do so will be null and void.
Section
6.6 Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
Section
6.7 Amendments. This
Agreement may not be amended except by written agreement signed by all of the
parties to this Agreement.
Section
6.8 Extension;
Waiver. At any time prior to the Expiration Time, Dome, on the
one hand, and Stockholder, on the other hand, may (i) extend the time for
the performance of any of the obligations of the other party, (ii) waive
any inaccuracies in the representations and warranties of the other party
contained in this Agreement or in any document delivered under this Agreement or
(iii) unless prohibited by applicable Laws, waive compliance with any of
the covenants or conditions contained in this Agreement. Any agreement on the
part of a party to any extension or waiver will be valid only if set forth in an
instrument in writing signed by such party. The failure of any party to assert
any of its rights under this Agreement or otherwise will not constitute a waiver
of such rights.
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Section
6.9 Fees and
Expenses. Except as expressly provided in this Agreement, each
party is responsible for its own fees and expenses (including the fees and
expenses of financial consultants, investment bankers, accountants and counsel)
in connection with the entry into of this Agreement and the consummation of the
transactions contemplated hereby.
Section
6.10 Entire Agreement. This
Agreement (including any specific reference to the Merger Agreement) constitutes
the entire agreement and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, among the parties to this
Agreement with respect to the subject matter of this Agreement.
Section
6.11 Counterparts; Effectiveness;
Execution. This Agreement may be executed in any number of
counterparts, all of which are one and the same agreement. This Agreement may be
executed by facsimile signature by any party and such signature is deemed
binding for all purposes hereof, without delivery of an original signature being
thereafter required.
Section
6.12 Specific
Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties to this Agreement
will be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled at law or in
equity.
Section
6.13 Action in Stockholder Capacity
Only. The parties acknowledge that this Agreement is entered
into by Stockholder solely in his capacity as the Beneficial Owner of the Owned
Shares and nothing in this Agreement shall in any way restrict or limit any
action taken or to be taken (or failure to act) by Stockholder in his capacity
as a director or officer of Metalline (but not on his own behalf as the
Beneficial Owner of the Owned Shares) and the taking of any actions (or failure
to act) in his capacity as an officer or director of Metalline will not be
deemed to constitute a breach of this Agreement, regardless of the circumstances
related thereto.
[Remainder
of page intentionally left blank. Signature Page Follows.]
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IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of
the date first written above.
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DOME
VENTURES CORPORATION
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By:
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STOCKHOLDER:
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Owned
Shares:
________________
________________
Address
for Notices to Stockholder:
C/O
Metalline Mining Company
0000 X.
Xxxxxxxx Xxx.
Coeur
d’Xxxxx, XX 00000
