Contract
Exhibit 99.d3
This Lock-up and Voting Agreement,
dated as of August __, 2008, (this "Agreement"), is
entered into by and among Park City Group, Inc., a Nevada corporation
("Parent"), Prescient Applied Intelligence, Inc., a Delaware corporation (the
"Company"), and
__________ (the "Company Stockholder"
). All capitalized terms used herein without definition having the respective
meanings ascribed to them in the Merger Agreement (as defined
below).
Recitals
Prior to
the date of this Agreement, the Company Stockholder owned shares of the
Company’s common stock (“Common Stock”), the
Company’s Series E Preferred Stock (“Series E Stock”), and
the Company’s Series G Preferred Stock (“Series G Stock”). The
number of shares of Common Stock, Series E Stock and Series G Stock owned by
each of the Company Stockholders prior to the execution of this Agreement is set
forth on the Signature Page of this Agreement (“Signature Page”)
adjacent to the name of each Company Stockholder.
The
Common Stock and Series G Stock of the Company is hereafter jointly referred to
as the “Company
Stock”). The Common Stock and Series G Stock of the Company owned by a
Company Stockholder is hereafter jointly referred to as the “Stockholder Company
Shares”).
Parent
and two of the stockholders of the Company have entered into Stock Purchase
Agreements pursuant to which the Parent has agreed to purchase, and has
purchased, all of the Series E Stock owned by such stockholders of the
Company.
Company
Stockholder has, prior to the date of execution of this agreement, sold to
private investors its Series E Stock.
Company
Stockholder continues to own the shares of Series G Stock and Common Stock set
forth on the Signature Page.
Prior the
execution and delivery of this Agreement, Parent, PAII Transitory Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Parent ("Sub"), and the
Company have entered into an Agreement and Plan of Merger, of even date herewith
(the "Merger
Agreement").
As a
condition and inducement to Parent and Sub entering into the Merger Agreement
and incurring the obligations set forth therein, it was the understanding of the
Parent and Sub that the Company Stockholder has agreed to vote and to cause to
be voted all shares of Company Common Stock and Series G Preferred Stock now
owned or hereafter acquired by them, for and in favor of the merger of the
Company with and into Sub contemplated by the Merger Agreement (the "Merger"), and have
agreed to the other terms and provisions contained herein;
NOW,
THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth herein and in the Merger Agreement, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Definitions.
Each term used herein with its initial letter capitalized and not otherwise
defined shall have the meaning assigned to such term in the Merger Agreement.
The following terms shall have the respective meanings set forth
below:
(a)
"Disposition"
shall mean any sale, exchange, assignment, gift, pledge, mortgage,
hypothecation, transfer or other disposition or encumbrance of all or any part
of the rights and incidents of ownership of the Common Stock and the Series G
Stock, including the right to vote, and the right to possession of the Common
Stock and Series G Stock as collateral for indebtedness, whether such transfer
is outright or conditional, or for or without consideration.
(b) "Term"
shall mean the period commencing on the date hereof and continuing until
the first to occur of (i) the Effective Time of the Merger, or (c) the
termination of the Merger Agreement in accordance with its terms.
2. Voting of
Stockholder Company Shares. Company Stockholder hereby agrees that,
during the Term, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Company Stock, however called,
or in connection with any written consent of the holders of Company Stock,
Company Stockholder will appear at the meeting or otherwise cause the
Stockholder Company Shares now owned or hereafter acquired by Company
Stockholder to be counted as present thereat for purposes of establishing a
quorum and vote or consent (or cause to be voted or consented) the Stockholder’s
Company Shares:
(a) in
favor of the adoption of the Merger Agreement and the approval of all other
actions contemplated by the Merger Agreement and this Agreement and any actions
required in furtherance thereof and hereof;
(b)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement;
(c)
against any action involving the Company or its subsidiaries which is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the transactions contemplated by the Merger
Agreement; and
3. Restriction on
Disposition of Stockholder’s
Company Shares. Company Stockholder hereby agrees that, during the Term,
Company Stockholder will not make, offer to make, agree to make, or suffer any
Disposition of his, her or its Stockholder Company Shares or any interest
therein. The restrictions contained in this Section 3 shall not apply to (a) a
Disposition under a Company Stockholder's will or pursuant to the laws of
descent and distribution, or (b) a gift by a Company Stockholder to an immediate
family member (i.e., a spouse, child, parent, grandparent or sibling) or a
family trust for the benefit of immediate family member(s), so long as, in each
case, the transferee(s) deliver to Parent and Sub an executed written instrument
agreeing to be bound by the terms of this Agreement as if such transferee(s)
were the Company Stockholder.
4. Restriction
Proxies and Non-Interference. Company Stockholder hereby agrees that,
during the Term, such Company Stockholder will not:
(a) grant
any proxies or powers or attorney that would permit any such proxy or
attorney-in-fact to take any action inconsistent herewith;
(b)
deposit his, her or its Stockholder Company Shares into a voting trust or enter
into a voting agreement with respect to such Stockholder Company Shares in
either case providing for the voting or consenting of such shares in a manner
inconsistent herewith; or
(c) take
any action that would make any representation or warranty of Company Stockholder
contained herein untrue or incorrect or would result in a breach by Company
Stockholder of its obligations under this Agreement.
Company
Stockholder further agrees not to enter into any agreement or understanding with
any Person, the effect of which would be inconsistent with or violative of any
provision contained in this Agreement.
5. Covenants,
Representations and Warranties of Company Stockholder.
Company Stockholder hereby represents and warrants to, and agrees with, Parent
and Sub as follows:
(a) Ownership of
Shares. Company Stockholder is the sole record and beneficial owner of
that number of shares of Company Stock set forth next to Company Stockholder's
name on the Signature Page (other than to the extent that (i) shares held by an
entity may be deemed to be beneficially owned by certain persons in control of
such entity and (ii) all or a portion of Company Stockholder's Shares may be
held by a broker in street name). On the date hereof, such shares of Stockholder
Company Shares constitute all of the shares of Company Stock owned of record or
beneficially owned by Company Stockholder. Company Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in this Agreement, sole power of disposition, and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to all of
such Stockholder Company Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities laws and the terms
of this Agreement.
(b) Authorization.
Company Stockholder is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has the power and
authority (corporate or otherwise) and full legal right to execute and deliver
this Agreement and perform its obligations hereunder. This Agreement has been
duly and validly executed and delivered by Company Stockholder and constitutes a
valid and binding agreement enforceable against Company Stockholder in
accordance with its terms except (i) as may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights, and (ii) that the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefore may be brought.
(c) No
Conflicts. Except for filings, authorizations, consents and approvals as
may be required under the Securities Act and the Exchange Act,
(i) no
filing with, and no permit, authorization, consent or approval of, any state or
federal governmental authority, or any other Person, is necessary for the
execution of this Agreement by Company Stockholder and the consummation by
Company Stockholder of the transactions contemplated hereby, and
(ii) none
of the execution and delivery of this Agreement by Company Stockholder, the
consummation by Company Stockholder of the transactions contemplated hereby or
compliance by Company Stockholder with any of the provisions hereof
will
(A)
conflict with or result in any breach of the organizational documents of Company
Stockholder,
(B)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Company Stockholder is a
party or by which Company Stockholder or any of its properties or assets may be
bound, or
(C)
violate any order, writ, injunction, decree, judgment, statute, role or
regulation applicable to Company Stockholder or any of his or its properties or
assets.
(d) No
Encumbrances. Company Stockholder owns its Stockholder Company Shares
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, or any other encumbrances whatsoever, except for:
(i) any
such matters arising hereunder and
(ii) bona
fide pledges of such shares as security for obligations owed to the Company;
provided, however, in the event that the Company acquires any interest in all or
any of such shares, including, without limitation, legal or beneficial ownership
thereof or any voting rights with respect thereto, whether through foreclosure
or otherwise, the Company hereby agrees to be bound by the terms of this
Agreement with respect to such shares as if it were the Company
Stockholder.
(e) Reliance by
Parent and Sub. Company Stockholder understands and acknowledges that
Parent and Sub have entered into the Merger Agreement in reliance upon Company
Stockholder's execution and delivery of, and compliance with, this
Agreement.
(f) Stockholder
Capacity. Company Stockholder who is or becomes during the Term a
director of the Company makes any agreement or understanding herein in his or
her capacity as a stockholder of the Company and not as a director.
6.
Termination. This Agreement will terminate upon the earlier of (a) the
Effective Time of the Merger, or (b) the termination of the Merger Agreement in
accordance with its terms.
7. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Certain
Events. Company Stockholder agrees that this Agreement and the
obligations hereunder shall attach to its Stockholder Company Shares and shall
be binding upon any Person to which legal or beneficial ownership of such
Stockholder Company Shares shall pass, whether by operation of law or otherwise,
including, without limitation, Stockholder's heirs, guardians, administrators or
successors. Notwithstanding any such transfer of Stockholder Company Stock, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Change In Company
Common Stock. In the event of a stock dividend or distribution, or any
change in the Company Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Company
Shares" shall be deemed to refer to and include the Company Shares as well as
all such stock dividends and distributions and any shares into which or for
which any or all of the Company Shares may be changed or exchanged.
(d) Acquisition of
Additional Company Shares. Company Stockholder agrees to promptly notify
Parent of the number of shares of Company Common Stock acquired by Company
Stockholder, if any, after the date of this Agreement.
(e) Waiver of
Appraisal Rights. Company Stockholder hereby waives, releases and
discharges any rights of appraisal or rights to dissent from the Merger that
Company Stockholder may have.
(f) Assignments;
Rights of Assignees; Third Party Beneficiaries. This Agreement shall not
be assignable by Company Stockholder without the prior written consent of Parent
and Sub. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns. Nothing
expressed or referred to in this Agreement is intended or shall be construed to
give any Person other than the parties to this Agreement or their respective
heirs, executors, administrators, legal representatives, successors or permitted
assigns any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
(g) Specific
Performance. The parties hereto acknowledge that money damages are an
inadequate remedy for breach of this Agreement because of the difficulty of
ascertaining the amount of damage that will be suffered by the non-breaching
party or parties in the event that this Agreement is breached. Therefore, each
of the parties agrees that the non-breaching party or parties may obtain
specific performance of this Agreement and injunctive and other equitable relief
against any breach hereof, without the necessity of establishing irreparable
harm or posting any bond, in addition to any other remedy to which such party
may be entitled at law or in equity.
(h) Waiver. No
waiver of any provision of this Agreement shall be effective unless it is in
writing signed by the party granting the waiver, and a waiver by any party
hereto of any one or more defaults shall not operate as a waiver of any future
default or defaults, whether of a like or of a different character. No waiver of
any of the provisions of this Agreement shall constitute a waiver of any other
provisions (whether or not similar), nor shall such a waiver constitute a
continuing waiver, unless otherwise expressly provided.
(i) Section
Headings. Headings contained in this Agreement are inserted only as a
matter of convenience and in no way define, limit, or extend the scope or intent
of this Agreement or any provisions thereof.
(j) Choice of
Law. This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Delaware (without regard to the
principles of conflicts of law) applicable to a contract executed and to be
performed in such State. Each party hereto (i) agrees to submit to personal
jurisdiction and to waive any objection as to venue in the state or federal
courts located in Salt Lake City, Utah, (ii) agrees that any action or
proceeding shall be brought exclusively in such courts, unless subject matter
jurisdiction or personal jurisdiction cannot be obtained, and (iii) agrees that
service of process on any party in any such action shall be effective if made by
registered or certified mail addressed to such party at the address specified
herein, or to any panics hereto at such other addresses as he, she or it may
from time to time specify to the other parties in writing for such purpose. The
exclusive choice of forum set forth in this paragraph shall not be deemed to
preclude the enforcement of any judgment obtained in such forum or the taking of
any action under this Agreement to enforce such judgment in any appropriate
jurisdiction.
(k) Notices.
All notices, requests and other communications to any party hereunder shall be
in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class mail postage
prepaid), or by overnight express courier (charges prepaid or billed to the
account of the sender) to the parties at the following addresses or facsimile
numbers:
|
If to
Parent or Sub,
to:
|
Xxxxxxx
X. Xxxxxx, CEO
Park City
Group, Inc.
|
|
| _________________________ | ||
| Xxxx Xxxx, XX 00000 | ||
| Email: xxxxx@xxxxxxxxxxxxx.xxx | ||
|
|
||
| If to Company Stockholder: |
At
his, her or its address set forth on the Signature
Page
|
or to
such other address or fax number as any party may have furnished to the others
in writing in accordance herewith.
(l) Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same document.
(m) Severability of
Provisions. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
not in any way be affected, impaired or invalidated.
8. Effectiveness.
This Agreement shall be effective as of the date set forth above.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth above.
| PARK CITY GROUP, INC. | ||
| By: ___________________________ | ||
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: Chief Executive officer | ||
| COMPANY STOCKHOLDER | ||
| ______________________________ | ||
| Print name | ||
| ______________________________ | ||
| Address | ||
| ______________________________ | ||
| Email Address | ||
| ______________________________ | ||
| Signature | ||
| Number of Shares of Common Stock | ||
| Beneficially Owned: ____________________________________ | ||
| Number of Shares of Series G Stock | ||
| Beneficially Owned: _____________________________________ | ||
|
|
||
|
Number of
Shares of Series E Stock
Beneficially
Owned
|
||
|
Prior
to the effective date of this
Agreement: _____________________
|
||
