EXHIBIT 10.5
SHAREHOLDER CONSENT AGREEMENT
SHAREHOLDER CONSENT AGREEMENT
THIS SHAREHOLDER CONSENT AGREEMENT (this "Agreement") is made and
entered into effective as of the 16th day of December, 1998, by the undersigned
shareholder of Triad Compressor, Inc., a Texas corporation (the "Company").
RECITALS
A. The Company, Saker One Corporation ("Parent") Triad Compressor, Inc.. a
Nevada corporation ("Subsidiary") and Xxxxxx Xxxxx have entered into a
Reorganization Agreement dated as of December 15, 1998 (the "Reorganization
Agreement"). Capitalized terms not otherwise defined herein have the meaning
ascribed to such terms as set forth in the Reorganization Agreement.
B. The Reorganization Agreement is subject to the approval of the
shareholders of the Company as described in the Notice to Shareholders dated
December 16, 1998 (the "Notice") a copy of which has been delivered to the
undersigned.
C. The undersigned desires to provide this Agreement to the Company in
order to approve the Reorganization Agreement and facilitate the transactions
contemplated thereby.
AGREEMENTS
In consideration of the recitals and the mutual promises set forth in
this Agreement, the parties agree as follows:
1. CONSENT TO MERGER. The undersigned hereby consents that when the
undersigned and all other shareholders of the Company (the "Shareholders") shall
have signed counterparts of this Agreement, the following resolutions (the
"Resolutions") shall then be deemed to be adopted, to the same extent and with
the same force and effect as if adopted by unanimous vote at a formal meeting of
the shareholders, duly called and held for the purpose of acting upon the
proposal to adopt the Resolutions, all in accordance with Article 9.1 QA of the
Texas Business Corporation Act.
RESOLVED, that the Reorganization Agreement and Plan of Merger in the
form attached hereto as Exhibit A, be and hereby are, approved and adopted by
the undersigned holders of all shares of outstanding capital stock of the
Company; and
FURTHER RESOLVED, that the Company's officers be, and each hereby is,
authorized to execute such instruments, certificates and documents and to do
such other acts and things necessary or desirable to effectuate and consummate
the adoption of such Reorganization Agreement and Plan of Merger; and
FURTHER RESOLVED, that in addition to the specific authorizations,
conferred upon the officers of the Company, each of the Company's officers is
authorized and empowered to do or cause to be done all further acts and things,
including the preparation and execution and filing of Articles of Merger and
Certificates of Merger, the execution of all such further agreements. documents,
papers and instruments, as they, may deem necessary or appropriate in order to
consummate and carry into effect the purposes and intent of the foregoing
resolutions; and, if specific forms of resolutions are necessary or desirable in
the opinion of the Board of the Company to accomplish the foregoing
transactions, then the same shall be deemed to have been and hereby are adopted,
and the Secretary of the Company is authorized and directed to certify the
adoption of all such resolutions as though such resolutions were specifically
set forth herein and such resolutions are to be inserted in the records of the
Company immediately following these resolutions.
2. NOTICE OF MEETING AND PROXY. The undersigned hereby (i)
acknowledges receipt of the Notice of Special Meeting of the Shareholders of the
Company, to be held at 0000 XXX Xxxxxxx, XXXXX 000, XXXXXX, XXXXX 00000, on
December 26, 1998, at 10:00 a.m., Dallas time (the "Special Meeting") and the
Reorganization Agreement and Plan of Merger enclosed therewith: and (ii)
appoints Xxxxx X. XxXxxxx with full power of substitution, the undersigned's
proxy to vote, as designated below, all shares of stock of the Company held of
record by the undersigned on December 116, 1998, at the Special Meeting upon
such business as may properly come before the Special Meeting or any adjournment
or postponement thereof:
(a) For the adoption of the Resolutions set forth in Section 1 above;
and
(b) In the discretion of the Proxy on any other matter that may
properly be brought before the meeting or any adjournment or postponement
thereof.
(c) This proxy may be revoked prior to the exercise of the powers
conferred by the proxy. This proxy is solicited on behalf of the board of
directors of the Company.
3. SHAREHOLDER'S AGENT.
(a) Xxxxx X. XxXxxxx (the "Shareholder's Agent") shall act as
agent of the undersigned through whom all actions by the Shareholders of the
Company relating to the Reorganization Agreement and the transactions
contemplated thereby are to be taken by the Shareholders. In the event of the
death, incapacity or resignation of the Shareholder's Agent, Xxxxxxx X. Xxxxx
shall become and act as the Shareholder's Agent. The Shareholder's Agent shall
have full power and authority to act on behalf of the undersigned with respect
to such matters and the undersigned shall be bound thereby. The undersigned
shall not be entitled to act independently with respect to any action relating
to the Reorganization Agreement, the Plan of Merger, the Stock Transfer
Agreement and the transactions contemplated thereby and any such actions shall
be taken solely by the Shareholder's Agent. This Agreement shall not restrict,
limit or negate the authority of the Board of Directors of the Company to act on
behalf of the Company and the Shareholders prior to the Effective Time.
(b) Although the board of directors of Intelligent Design
Systems, Inc. ("IDS") declared a stock dividend of the shares of the company
issuable to the shareholders of
IDS on December 9, 1998, no stock certificates of the Company have been issued
and the dividend has been recorded solely on the books of IDS and the Company.
In order to facilitate the transaction and eliminate a need for the issuance of
separate stock certificates to each shareholder of IDS to be returned in
exchange for the shares to be issued by Parent pursuant to the Merger, the
Shareholder's Agent is authorized on behalf of the undersigned to receive a
single stock certificate issued to the Shareholder's Agent, as agent for the
undersigned and all other shareholders of the Company in the aggregate amount of
the shares of the Company issued pursuant to the stock dividend and to submit
such stock certificate for delivery and cancellation in connection with the
Merger in exchange for stock certificates of the Parent to be issued to each
shareholder of the Company. The Shareholder's Agent is hereby appointed as agent
and attorney in fact for the undersigned to execute and deliver any and all
endorsements, stock powers or similar transfer documents as may be necessary or
convenient in the discretion of the Shareholder's Agent to accomplish any of the
transactions contemplated by the Reorganization Agreement. The Shareholder's
Agent is authorized to take all other actions in connection with the Merger as
may be necessary or convenient to implement the Merger.
(c) Upon receipt of the Merger Shares of Parent issued to the
undersigned, the Shareholder's Agent shall promptly distribute such Merger
Shares to the undersigned.
(d) The Shareholder's Agent shall not be responsible in any
manner whatsoever for any failure or inability of Parent, or of anyone else, to
deliver the Merger Shares to the Shareholder's Agent or otherwise to honor any
of the provisions of this Agreement or the Reorganization Agreement.
(e) The Shareholder's Agent shall be fully protected in acting
on and relying upon any written notice, direction, request, waiver, notice,
consent, receipt or other paper or document in which he in good faith believe to
be genuine and to have been signed or presented by the proper party or parties.
(f) The Shareholder's Agent shall not .be liable for any error
of judgment. or any act done or step taken or omitted by him in good faith or
for any mistake in fact or law, or for anything which they may do or refrain
from doing in connection herewith, except for his own bad faith, willful
misconduct or gross negligence.
(g) The Shareholder's Agent may seek the advice of legal
counsel at the expense of the Company in the event of any dispute or question as
to the construction of any of the provisions of this Agreement or the
Reorganization Agreement or his duties hereunder or thereunder, and he shall
incur no liability and shall be fully protected with respect to any action
taken, omitted or suffered by him in good faith in accordance with the opinion
of such counsel.
(h) If a controversy arises between one or more of the parties
hereto, or between any of the parties hereto and any person not a party hereto,
as to whether or not, or to whom, the Shareholder's Agent shall deliver Merger
Shares or as to any other matter arising out of or relating to this Agreement or
the Reorganization Agreement, the Shareholder's Agent shall not be required to
determine such controversy and need not make any delivery but may retain the
same until the rights of the parties to the dispute shall have finally been
determined by agreement or by final order of a court of competent jurisdiction;
provided, however, that the time for appeal
of any such final order has expired without an appeal having been made. The
Shareholder's Agent shall be entitled to assume that no such controversy has
arisen unless he has received a written notice that such a controversy has
arisen which refers specifically to this Agreement and identifies by name and
address the adverse claimants to the controversy.
The undersigned will jointly and severally with all other Shareholders
reimburse and indemnify the Shareholder's Agent for, and hold him harmless
against, any loss, liability or expense, including, but not limited to,
reasonable counsel fees and accounting fees incurred without bad faith, willful
misconduct or gross negligence on his part, arising out of or in connection with
his acceptance of, or the performance of, his duties and obligations under this
Agreement and the Reorganization Agreement as well as the reasonable costs and
expenses of defending against any claim or liability arising out of or relating
to this Agreement or the Reorganization Agreement.
4. INVESTMENT REPRESENTATIONS. The undersigned acknowledges that its
acquisition of the Merger Shares is subject to the following investment
representations:
(a) The offering and sale of the Merger Shares is intended to
be exempt from registration under the Securities Act of 1933, as amended (the
"1933 Act") by virtue of the provisions of either Section 4(2) of the 1933 Act
or Rule 506 of Regulation D ("Regulation D") promulgated under the 1933 Act of
the Securities and Exchange Commission (the "SEC");
(b) If the Parent is relying on Regulation D, the issuance of
the Merger Shares will be reported by the Parent to the SEC to the extent
required by Regulation D and will be reported by the Parent to various state
securities or blue sky commissioners to the extent required by applicable state
law;
(c) There is no existing public or other market for the Merger
Shares and there can be no assurance that the undersigned will be able to sell
or dispose of the Merger Shares;
(d) The Merger Shares to be acquired by the undersigned
pursuant to the Reorganization Agreement are being acquired for the
undersigned's own account, not as a nominee or agent for any other person and
without a view to the distribution of such Merger Shares or any interest therein
in violation of the 1933 Act;
(e) The undersigned has such knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of the undersigned's investment in the Merger Shares, is capable of
bearing the economic risks of such investment. and is able to bear a complete
loss of the undersigned's investment in the Merger Shares;
(f) The undersigned has read and understands the Notice and
the undersigned has been provided, to the undersigned's satisfaction and at a
reasonable time prior to the date hereof, the opportunity to ask questions of
the Parent and its representatives concerning the Parent and the terms and
conditions of the issuance of the Merger Shares, and has had all such questions
answered to the undersigned's satisfaction and has been supplied all additional
information deemed necessary by the undersigned to verify the accuracy of the
information furnished to the undersigned;
(g) The undersigned understands that the Merger Shares have
not been registered under the 1933 Act and that the Merger Shares must be held
indefinitely and cannot be resold unless (i) the Merger Shares are subsequently
registered under the 1933 Act or (ii) such sale is permitted pursuant to an
available exemption from the registration requirements under the 1933 Act, as
evidenced by a legal opinion reasonably satisfactory to the Parent;
(h) The undersigned understands that the Parent does not
currently plan to register under the 1933 Act the Merger Shares and that there
are substantial restrictions on the transferability of the Merger Shares;
(i)The undersigned understands that no federal or state agency
has made any finding or determination as to the fairness of an investment in,
nor any recommendation or endorsement of, the Merger Shares;
(j) The undersigned understands and is able to bear the risks
and consequences of the following: (i) the risks involved in the investment in
the Merger Shares, including the speculative nature of the investment in the
Merger Shares; (ii) the financial risks involved in the investment in the Merger
Shares, including the risk of losing the undersigneds entire investment; (iii)
the lack of liquidity of the Merger Shares; and (iv) the restrictions on
transferability of the Merger Shares. The undersigned understands that the
Parent has provided no legal or financial advice concerning the securities law
or tax consequences of an investment in the Merger Shares, and the undersigned
has relied for such advice on the undersigneds own professional advisors. The
undersigned has not been furnished any offering material, sales literature or
prospectus except as mentioned herein:
(k) The undersigned has previously provided to IDS and the
Company information regarding the status of the undersigned as a qualified or
accredited investor under applicable securities laws and the undersigned
represents that no change has occurred in the information previously furnished
by the undersigned and that such information may be furnished by the Company to
the Parent and Parent may rely on such information in determining the status of
the undersigned.
5. RELEASE. The undersigned, for himself, his heirs, personal
representatives, successors and assigns, does hereby release, acquit, discharge
and covenant not to xxx the Surviving Corporation, its officers, directors,
agents, attorneys, employees, successors and assigns, with respect to all past,
present and future claims, expenses, losses, liabilities and obligations of any
nature whatsoever, whether accrued or contingent, known or unknown, whether
sounding in contract, tort or otherwise, based in whole or in any material part
upon facts and circumstances in existence as of the Closing Date including, but
not limited to, the actions taken by the Company in connection with the
Reorganization Agreement, provided that the foregoing shall not apply to or
release any claim for indemnification that the undersigned may have for any
breach of representation or warranty by the Parent under the Reorganization
Agreement.
6. NOTICES
(a) All notices, instructions and other communications
required or permitted to be given hereunder shall be given in writing and shall
be deemed to have been duly given if delivered personally, given by prepaid
telegram, sent by overnight courier or mailed first-class, postage prepaid,
registered or certified mail, to the Company, the Surviving Corporation or the
Shareholder's Agent to the address set forth below or if to the undersigned, to
the address set forth on the signature page hereto.
If to Shareholder's Agent, Parent or the Surviving Corporation, to:
Xxxxx X. XxXxxxx
000 Xxxxx Xxxxxx Xxx Xxxx #000-X-000
Xxxxxxx, Xxxxx 00000
(b) Any party to this Agreement may change the address to
which such communications are to be directed to it by giving written notice to
the other parties hereto in the manner provided in this paragraph.
7. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the state of Texas without
giving effect to any choice of law or conflict provision or rule (whether of the
state of Texas or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the state of Texas.
8. TERM. This Agreement shall be irrevocable and coupled with an
interest and shall be effective from the date first above written until the
final distribution of the Merger Shares in accordance with the terms of this
Agreement and the Reorganization Agreement.
9. SUCCESSOR. This Agreement shall be binding on all heirs, legal
representatives, successors and assigns of the undersigned.
10. SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the undersigned has executed this Agreement or
caused the same to be executed as of the day, month and year first above
written.
Dated: December ____, 1998
Shareholder Address __________________________
(Signature)
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(Signature if held jointly)
Please date this Agreement, sign your name exactly as it appears hereon and mail
promptly in the enclosed envelope. Where thee is more than one owner, each
should sign. When signing as an attorney. administrator, executor, guardian or
trustee, please add your title as such. If executed by a corporation, the proxy
should be signed by a duly authorized officer. If executed by a partnership,
please sign in the partnership name by an authorized person.
