VOTING AGREEMENT
This
Voting Agreement (this “Agreement”) is made and
entered into as of July 28, 2009, by and among Exousia Advanced Materials, Inc.,
a Texas corporation (the “Company”), PTV Investments, LLC, a Nevada limited
liability company (“PTV”), and the persons and
entities who have executed a Signature Page to Voting Agreement (each, a “Stockholder” and collectively,
the “Stockholders”. The
Company, PTV and each Stockholder are sometimes each referred to herein as a
“Party” and
collectively, as the “Parties”.
W I T N E S S E T
H:
WHEREAS, PTV and certain other
persons and entities (collectively, the “Lenders”) have agreed to loan the
Company and Exousia IP, LLC, a Nevada limited liability company and wholly-owned
subsidiary of the Company (“IP
Sub”), up to $3,000,000 pursuant to the terms and conditions of that
certain Loan Agreement, of even date herewith, by and among the Company, IP Sub
and such Lenders (the “Loan
Agreement”); and
WHEREAS, as a condition of
closing of the transactions contemplated by the Loan Agreement, the Company and
approximately 35% of the outstanding voting securities of the Company were
obligated to execute and deliver this Agreement to PTV; and
WHEREAS, the Stockholders and
the Company agree that it is to their mutual benefit and in the best interests
of the Company to provide a representative of the Lenders to have a role as a
director of the Company for so long as either any of the principal of the PTV
Drawdown Note (as defined below) remains outstanding or PTV has the right to
fund any of the Remaining Funding (as defined in the Loan Agreement) and to
provide for certain other matters pertaining to the business affairs of the
Company, all as hereinafter set forth;
NOW, THEREFORE, for and in
consideration of the mutual covenants, agreements, terms and conditions
contained herein, the Parties do hereby agree as follows:
SECTION
1
MANAGEMENT
1.1. Board of
Directors.
(a) Initial Election of PTV
Director. Effective immediately after the closing of the
transactions contemplated by the Loan Agreement, the Board of Directors of the
Company (the “Board”)
shall increase the number of directors from four (4) to five (5), and will elect
a designee of PTV (the “PTV Nominee”, who it is stipulated will be initially
Xxxxxxx Xxxxx) as a director of the Company to fill the vacancy caused by such
increase.
(b) Election of PTV Nominees as
Directors by the Stockholders. As long as any of the principal
of the 12% Secured Convertible Drawdown Note, of even date herewith, issued by
the Company to PTV (the “PTV Drawdown Note”) remains outstanding or PTV has the
right to fund any Remaining Funding (as defined in the Loan Agreement), the
Board of Directors of the Company will nominate the PTV Nominee to serve as a
director of the Company, and each of the Stockholders will, at all times after
the date of this Agreement, vote all shares of voting capital stock of the
Company, including, without limitation, shares of common stock, par value $0.001
per share, of the Company (“Voting Stock”), now or
hereafter owned by such Stockholder at any meeting of stockholders of the
Company and in whatever other manner is necessary (by written consent or
otherwise) to ensure that the PTV Nominee is elected to the Board.
1
(c) Removal. Each
of the Stockholders agrees that, as long as any of the principal of the PTV
Drawdown Note remains outstanding or PTV has the right to fund any Remaining
Funding, if PTV desires to remove the PTV Nominee as a director of the Company,
with or without cause, then PTV shall notify the Company and all Stockholders of
such desire, and all Stockholders and the Company agree to cause a special
meeting of the Stockholders to be held as promptly as practicable thereafter for
the purpose of removing the PTV Nominee as a director of the
Company. Each Stockholder agrees that such Stockholder will vote all
Voting Stock now or hereafter owned by such Stockholder at such special meeting
of the stockholders of the Company: (i) for the removal of the PTV Nominee as a
director of the Company; and (ii) for the appointment of any replacement
director nominated by PTV. In lieu of a special meeting, at the
request of PTV, all Stockholders shall execute and deliver a written consent to
such actions.
(d) Vacancies. In
the event that the PTV Nominee serving as a director of the Company is unable to
serve or, once having commenced to serve, is removed or withdraws from the Board
(a “Withdrawing
Director”), such Withdrawing Director’s replacement (the “Substitute Director”) on the
Board will be designated by PTV. Immediately following any such
withdrawal, upon the written request of PTV, the Board shall elect such
Substitute Director as designated by PTV. Thereafter, the Board
agrees to nominate and recommend to the holders of Voting Stock of the Company
such Substitute Director designated by PTV. Thereafter, each of the
Stockholders agrees to vote all Voting Stock now or hereafter owned by such
Stockholder for the election to the Board of such Substitute Director. In lieu
of an annual or special meeting of the Stockholders to select a Substitute
Director, at the request of PTV, all Stockholders shall execute and deliver a
written consent to such action.
(e) Elimination of PTV Director
Position. Notwithstanding anything to the contrary contained
in this Agreement, the Loan Agreement or any other document ancillary to the
Loan Agreement, at such time as the PTV Drawdown Note has been paid in full and
PTV has no right to fund the Remaining Funding, upon written notice from the
Board to the PTV Nominee then serving on the Board: (i) the PTV
Director shall be deemed to have immediately resigned as a Director of the
Company, without participation in any further business to come before the Board;
and (ii) the Board shall decrease the number of directors from (5) to
(4). At the request of the Board, the PTV Director shall sign a
resignation letter to document his resignation as a Director of the Company,
which resignation letter just simply state that he resigned as of a stated
date.
SECTION
2
MISCELLANEOUS.
2.1. Legends on
Certificate. For as long as any of the principal of the PTV
Drawdown Note remains outstanding or PTV has the right to fund any Remaining
Funding, all certificates representing shares of Voting Stock held by
Stockholders shall be conspicuously legended as follows:
2
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A VOTING
AGREEMENT DATED AS OF JULY 28, 2009, AS MAY BE AMENDED FROM TIME TO
TIME. THE COMPANY WILL FURNISH A COPY OF SUCH AGREEMENT TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE ON REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.”
The
Company agrees that, for as long as any of the principal of the PTV Drawdown
Note remains outstanding or PTV has the right to fund any Remaining Funding, it
shall not remove, and it shall not permit to be removed (upon registration of
transfer, reissuance, or otherwise), the above legend from any such certificate
and shall place or cause to be placed such legends on any new certificate issued
to the Stockholders to represent shares of Voting Stock.
2.2. Void
Transfers. For as long as any of the principal of the PTV
Drawdown Note remains outstanding or PTV has the right to fund any Remaining
Funding, no Stockholder may sell, transfer or dispose of any shares of Voting
Stock unless the person or entity receiving such shares executes and delivers to
the Company a signature page to this Agreement, in which event such person or
entity shall have the same rights and obligations under this Agreement with
respect to the shares acquired as those of the Stockholder from which such
person or entity received such shares. If any shares of Voting Stock subject to
this Agreement shall be sold, transferred, or disposed of other than in
accordance with the terms and conditions of this Agreement, the Company shall
have the right to treat such transfer as if it were void. In
enforcing such rights, the Company may hold and refuse to transfer any shares of
Voting Stock or any certificate therefor presented to it for transfer, in
addition to and without prejudice to any and all other rights which may be
available to it.
2.3. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of: (a) the Company and PTV and their respective successors, legal
representatives and assigns; and (b) the Stockholders and their respective
heirs, devisees, personal representatives and assigns. Any
Stockholder who sells or transfers all of such Stockholder’s shares of Voting
Stock pursuant to the terms hereof shall cease to be bound by this Agreement
from and after the date of such sale or transfer. Any successor,
legal representative or assign of any shares of Voting Stock shall be entitled
to the rights and obligations of the transferring Stockholder under this
Agreement to the extent of the transfer of such shares. The rights
and obligations of any Stockholder hereunder may not be assigned unless in
connection with the transfer of shares of Voting Stock and in compliance with
Section 2.2
above.
2.4. Entire Agreement and
Amendments. This Agreement constitutes the entire agreement
and understanding among the Parties with respect to the subject matter hereof,
and supersedes any and all prior negotiations, correspondence, agreements
(whether written or oral), understandings, duties, or obligations among the
Parties with respect to the subject matter hereof. No waiver, alteration or
modification, or amendment of any of the provisions hereof shall be binding
unless it is in writing and signed by: (a) the Company; (b) PTV; and (c)
the Stockholders.
3
2.5. Notices. Any
notice, reply or other communication required or permitted by this Agreement
must be given in writing and may be served by depositing same in the United
States mail, certified, postage prepaid, addressed to the party or parties to be
notified, or by delivering the notice in person to such party or parties. Such
notice shall be deemed received when deposited in the mail or when actually
received, if personally delivered. For purposes of notices, the
address of: (i) the Company shall be 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxx, Xxxxx 00000; (ii) PTV shall be 00000 Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000; and (iii) any Stockholder, shall be the address set forth on such
Stockholder’s Signature Page to Voting Agreement. Any Party shall
have the right to change its address by giving at least five (5) days prior
written notice of its new address to all other Parties.
2.6. Specific
Performance. Because the shares of Voting Stock are of a
unique nature and cannot readily be purchased or sold on the open market, PTV
would not have any adequate remedy in damages in the event any Stockholder fails
to abide by this Agreement. As a result, PTV’s rights under this
Agreement shall be specifically enforceable. Such remedy, however,
shall be cumulative and nonexclusive and shall be in addition to any other
remedy permitted hereunder, or otherwise allowed at law or in
equity.
2.7. Termination. This
Agreement shall terminate automatically on the earlier of: (a) the date on which
the PTV Drawdown Note has been paid in full; or (b) the five (5) year
anniversary of the date of this Agreement.
2.8. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision never comprised apart
hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be effected by the illegal, invalid or unenforceable
provision, and there shall be added automatically as part of this Agreement, a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
2.9. Number;
Gender. Any reference in this Agreement to the singular
includes the plural and vice versa. Any reference in this Agreement
to the masculine or neuter gender includes the feminine gender and vice
versa.
2.10. Captions. The
headings or captions of the Articles and Sections of this Agreement are inserted
for convenience and reference only and shall not be deemed a part hereof and
shall not used in the construction or interpretation hereof. All internal
references in this Agreement refer to the applicable portion of this Agreement,
and all exhibits hereto are incorporated herein by reference.
2.11. Governing
Law. The internal laws of the State of Texas shall govern the
validity, construction, enforcement, and interpretation of this Agreement
excluding that body of law relating to conflict of laws.
4
2.12. Counterparts. This
Agreement may be executed in multiple counterparts (including facsimile
counterparts), each of which shall be an original but all of which together
shall constitute one and the same instrument. The failure of any listed
signatory to sign the Agreement shall have no effect on this Agreement, and all
other signatories shall be bound by and subject to this Agreement.
2.13 Additional
Stockholders. In the event that, after the date of this
Agreement, but before its termination as described in Section 2.7, the Company
issues shares of voting securities of the Company to any person, whether natural
or juridical, and as a result of such issuance the Voting Stock owned by the
Stockholders will be less than thirty-five percent (35%) of the outstanding
voting securities of the Company, then, as a condition of such issuance, the
Company shall cause to be executed a counterpart signature page hereto by as
many persons receiving such shares as may be necessary to ensure that the
Stockholders collectively own not less than thirty-five percent (35%) of the
outstanding voting securities of the Company, and each such person shall thereby
be bound by, or subject to, all the terms and provisions of this
Agreement.
IN WITNESS WHEREOF, the
Parties have executed this Agreement to be effective as of the day and year
first above written.
|
EXOUSIA
ADVANCED MATERIALS, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Its: Chief Operating Officer/Chief Financial
Officer
|
|
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx,
President
|
|
STOCKHOLDERS:
[See
attached Signature Pages to Voting
Agreement]
|
5
SIGNATURE
PAGE
TO
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 1,000,000.
|
If
an individual:
Printed
Name:
|
|
If
a legal entity:
Composite
Particles, Inc.
(type in name)
By: /s/ Xxxxxxx X.
Xxxxxx
Printed: Xxxxxxx
X. Xxxxxx
Title:
President
|
S-1
SIGNATURE
PAGE
TO
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 800,000.
|
If
an individual:
/s/ X. X.
Xxxxx
Printed
Name: X. X. Xxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-2
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Rule 144.
Shares of
Voting Stock owned by Stockholder: 128,572.
|
If
an individual:
/s/ Xxxxx
X.
Xxxxxxx
Printed
Name: Xxxxx X. Xxxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-3
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 1,259,815.
|
If
an individual:
/s/ Xxxx
Xxxxxxxx
Printed
Name: Xxxx Xxxxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-4
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 1.2 million.
|
If
an individual:
/s/
Xxxxxx X.
Xxxxxxx
Printed
Name: Xxxxxx X. Xxxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-5
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 630,000.
|
If
an individual:
/s/
Xxxxxx X.
Xxxxxx
Printed
Name: Xxxxxx X. Xxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-6
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 1,261,233.
|
If
an individual:
/s/
Xxxxxx X.
Xxxxxxxx
Printed
Name: Xxxxxx X. Xxxxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-7
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 500,000.
|
If
an individual:
Printed
Name:
|
|
If
a legal entity:
Xxxxx and
Xxxxxx Xxxxxxxx Foundation
(type in name)
By:
/s/ Xxxxx Xxxxx Xxxxxxxx,
Xx.
Printed:
Xxxxx Xxxxx Xxxxxxxx, Xx.
Title:
CEO/Trustee
|
S-8
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of July 22, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 10,753,850.
|
If
an individual:
/s/ Xxxxx
Xxxxx Xxxxxxxx,
Xx.
Printed
Name: Xxxxx Xxxxx Xxxxxxxx, Xx.
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-9
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 763,099.
|
If
an individual:
Printed
Name:
|
|
If
a legal entity:
WBR
Trust
(type in name)
By: /s/ Xxxxx Xxxxx Xxxxxxxx,
Xx.
Printed:
Xxxxx Xxxxx Xxxxxxxx, Xx.
Title:
CEO/Trustee
|
S-10
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June 23, 2009 (the “Agreement”),
by and among Exousia Advanced Materials, Inc., a Texas corporation (the
“Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 2.5 million.
|
If
an individual:
/s/
Xxxxxxx
Xxxxxxx
Printed
Name: Xxxxxxx Xxxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-11
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 600,000.
|
If
an individual:
/s/ Xxxx
Xxxxx
Printed
Name: Xxxx Xxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-12
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 2,003,846.
|
If
an individual:
Printed
Name:
|
|
If
a legal entity:
Launch
Pad Capital
(type in name)
By: /s/ Xxxx
Xxxxx
Printed:
Xxxx Xxxxx
Title:
Managing Partner
|
S-13
SIGNATURE
PAGE
TO
VOTING
AGREEMENT
This
Signature Page to Voting Agreement, dated as of June ____, 2009 (the
“Agreement”), by and among Exousia Advanced Materials, Inc., a Texas corporation
(the “Company”), PTV Investments, LLC, a Nevada limited liability company, and
certain stockholders of the Company, is hereby executed by the undersigned, as a
“Stockholder”, as of the date first set forth above.
Type of
Voting Stock owned by Stockholder: Common.
Shares of
Voting Stock owned by Stockholder: 1,900,000.
|
If
an individual:
/s/
Xxxxxx Xxxxxx
Printed
Name: Xxxxxx Xxxxxx
|
|
If
a legal entity:
(type in name)
By:
Printed:
Title:
|
S-14
