1
Exhibit 9.1
VOTING AGREEMENT
This Voting Agreement dated as of February 28, 2001 (this "AGREEMENT") is
made among Elektryon, a Nevada corporation (the "COMPANY"), and Xxxx X.
Xxxxxxxxx and Xxxx X. Xxxxxxx (each, an "OWNER", and together, the "OWNERS") and
Xxxxxx Xxxxx.
In order to facilitate further investments by third parties in, and to
induce third parties to engage in potential strategic transactions with, the
Company, the Owners desire to agree to certain terms and conditions relating to
the voting of their shares of Common Stock (as defined below).
In consideration for the foregoing premises and the agreements and
undertakings hereinafter set forth, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following respective meanings:
An "AFFILIATE" of any Person, or a Person "AFFILIATED WITH" a Person,
shall mean a Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control with, the
Person specified.
An "ASSOCIATE" of any Person shall mean (a) any corporation, organization
or other entity of which such Person is an officer or partner or is, directly or
indirectly, the beneficial owner of 5% or more of any class or series of equity
interests, (b) any trust or other estate in which such Person has a substantial
beneficial (under all circumstances an interest of 5% or greater will be deemed
substantial) interest or as to which such Person serves as trustee, executor,
nominee, administrator, conservator, attorney-in-fact or in a similar fiduciary
capacity or (c) any member of such Person's Immediate Family.
A Person shall be deemed the "BENEFICIAL OWNER" of, and shall be deemed to
"BENEFICIALLY OWN" and be deemed to have "BENEFICIAL OWNERSHIP" of and be deemed
to have "BENEFICIALLY OWNED":
(a) any securities that such Person or any of such Person's
Affiliates or Associates, or any member of any I3D Group of
which such Person or any Affiliate or Associate of such Person
is a member, "beneficially owns" within the meaning of Rule
13d-3 promulgated under the Exchange Act, as in effect on the
date of this Agreement; and
2
(b) any securities (the "UNDERLYING SECURITIES") that such Person
or any of such Person's Affiliates or Associates has the right
to acquire (whether such right is exercisable immediately or
only after the passage of time or upon the occurrence or
reoccurrence of specified events, with or without the
provision of notice) pursuant to any agreement, arrangement or
understanding (written or oral), or upon the exercise of any
rights, puts, calls, warrants or options or otherwise (it
being understood that such Person shall also be deemed to be
the beneficial owner of any securities convertible into or
exchangeable or exercisable for any underlying or derivative
securities).
"BOARD" shall mean the Board of Directors of the Company (or the board of
directors or similar governing body of any successor of the Company or any
Person to whom the Company may assign its rights under this Agreement).
"CARVED-OUT SHARES" shall mean (i) 35,000 shares of Common Stock
beneficially owned and owned of record on the date hereof collectively by Xxx
and Xxxxx Xxxxxx, 10,000 of which are evidenced by stock certificate number 2053
of the Company dated August 19, 1998 and 25,000 of which are evidenced by stock
certificate number 1103 of the Company dated September 18, 1998; (ii) 35,900
shares of Common Stock beneficially owned and owned of record by Xxxxxxx X.
Xxxxxxxxx, III, 34,900 of such shares are evidenced by a stock certificate of
the Company and 1,000 of such shares are evidenced by an affidavit of loss and
indemnity signed by Xxxxxxx X. Xxxxxxxxx, III previously received by the
Company; and (iii) 10,000 shares of Common Stock beneficially owned and owned of
record by Xxxx Xxxxxxxx represented by a stock certificate of the Company dated
as of the date hereof.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMON STOCK" shall mean the common stock, $.001 par value, of the
Company and all securities of the Company into which such common stock hereafter
may be reconstituted or recapitalized or exchanged and any securities of any
Person distributed, paid or offered to the Owners or any other Executive Person
as a distribution or dividend in respect of, or in exchange for, such Common
Stock.
"CONCURRENT AGREEMENTS" shall mean the Separation and Release Agreement,
dated as of the date hereof, among the Company and the Owners (the "SEPARATION
AGREEMENT"), each Promissory Note, dated the date hereof, by each Owner
delivered to the Company (collectively, the "NOTES"), each Pledge Agreement,
dated as of the date hereof, by each Owner in favor of the Company (the "PLEDGE
AGREEMENTS"), and the Release, dated as of the date hereof among the Owners and
the Company.
"CONTROL" shall have the meaning ascribed to such term in Rule 12b-2
promulgated under the Exchange Act, as in effect on the date of this Agreement,
and the terms
2
3
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH" shall have correlative meanings.
"EQUITY SECURITY" shall have the meaning set forth in Rule 3a11-1
promulgated under the Exchange Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
or any successor statute, as in effect on the date in question, unless otherwise
specifically provided.
"EXECUTIVE PERSON" shall have the meaning set forth in the Separation
Agreement.
"IMMEDIATE FAMILY" shall mean, with respect to any Person, a Person's
spouse, parents, children (whether natural or by adoption), siblings,
grandchildren, mother-in-law, father-in-law, brothers-in-law, sisters-in-law,
daughters-in-law or sons-in-law and the respective Associates and Affiliates of
each of the foregoing, but excluding Xxx and Xxxxx Xxxxxx, Xxxxxxx X. Xxxxxxxxx
III and Xxxx Xxxxxxxx and each of their respective Affiliates (but only if such
Affiliate is not an Affiliate or Associate of an Owner).
"INDEPENDENT DIRECTORS" shall mean a member of the Board who meets the
definition of an independent director set forth in Rule 4200 of the Rules of the
National Association of Securities Dealers, Inc.
"PERSON" shall mean any individual, firm, corporation, partnership,
limited partnership, charitable organization, limited liability company, trust,
joint venture, estate, association, public or governmental authority or other
entity.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
successor statute, as in effect on the date in question, unless otherwise
specifically provided.
"13D GROUP" shall mean any group of Persons formed for the purpose of,
directly or indirectly, acquiring, holding, voting or disposing of shares of
Common Stock (or any right thereto or interest therein) (or any securities
exercisable or exchangeable for or convertible into Common Stock), including,
without limitation, any group of Persons that would be required to make a filing
with the Commission pursuant to Section 13 of the Exchange Act, and the rules
and regulations promulgated thereunder, if the Common Stock were registered
under the Exchange Act.
3
4
ARTICLE II
LEGEND ON CERTIFICATES
All shares of Common Stock now or hereafter beneficially owned by either
Owner other than the Carved-Out Shares shall be held in certificated form and
shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED FEBRUARY 28, 2001 (THE "VOTING AGREEMENT"), AMONG THE
COMPANY, THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND
CERTAIN OTHER PARTIES. A COPY OF THE VOTING AGREEMENT MAY BE OBTAINED FROM
THE COMPANY FREE OF CHARGE. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS
CERTIFICATE AGREES TO COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE
VOTING AGREEMENT.
Upon any Transfer (as defined in Section 5 of the Separation Agreement) by
an Owner to a Person which is not (a) an Owner, (b) an Affiliate or Associate of
an Owner, (c) Xxxxx Xxxxxxx or (d) an Affiliate or Associate of Xxxxx Xxxxxxx,
and if the Owner delivers to the Company evidence reasonably satisfactory to the
Company that such a Transfer has occurred without violation of this Agreement or
any Concurrent Agreement, the Company shall issue to such Person a certificate
representing the transferred shares without the foregoing legend. Prior to any
Transfer by an Owner of shares of Common Stock to the other Owner or to an
Affiliate or Associate of any Owner permitted hereby and by the Concurrent
Agreements (only if this Agreement remains in effect under Article V at the time
of such proposed Transfer), the Owner intending to effectuate such Transfer
shall cause the intended transferee to execute and deliver to the Company an
agreement in the form of this Agreement (with only the identity of the "Owner"
to be changed and making appropriate changes to Sections 3.1(d) and (e)) and the
Company will execute and deliver the same and cause all other appropriate
parties to do so.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Owners. Each Owner
individually as to himself represents and warrants to the Company that:
(a) Such Owner has the legal capacity to execute and deliver this
Agreement.
(b) This Agreement has been duly executed and delivered by such Owner,
is a
4
5
valid and binding agreement of such Owner, and is enforceable
against such Owner in accordance with its terms.
(c) The execution, delivery and performance by such Owner of this
Agreement does not and will not violate or conflict with or result
in breach of or constitute (with or without notice or lapse of time
or both) a default under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which such
Owner is a party or by which such Owner or any of their respective
properties may be bound or subject.
(d) After giving effect to the transactions contemplated by the
Concurrent Agreements, Xxxx X. Xxxxxxxxx is the record and
beneficial owner of 865,000 shares of Common Stock and Xxxx X.
Xxxxxxx is the record and beneficial owner of 875,000 shares of
Common Stock, which represents all of the Common Stock owned of
record or beneficially by Xxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxx on
the date of this Agreement (other than the Carved-Out Shares). Such
Owner does not own, of record or beneficially, any preferred stock,
notes, debentures, warrants, options, puts, calls, rights or other
securities convertible into or exercisable or exchangeable for
shares of capital stock ("SECURITIES") of the Company (other than
the Carved-Out Shares).
(e) Other than the Carved-Out Shares, all shares of Common Stock
beneficially owned by such Owner are in certificated form and under
his control and in his possession. All such certificates are being
delivered to the Company concurrently with the execution and
delivery of this Agreement, to be held by the Company pursuant to
the Pledge Agreement to which he is a party. Each Owner agrees that
the Company may place the legend contained in Article II on all
certificates representing shares of Common Stock owned, beneficially
or of record, by him.
Section 3.2 Representation and Warranties of the Company. The Company
represents and warrants to the Owners that:
(a) The Company is duly authorized to execute, deliver and perform this
Agreement.
(b) This Agreement has been duly executed by the Company, is a valid and
binding agreement of the Company, and is enforceable against the
Company in accordance with its terms.
(c) The execution, delivery and performance by the Company of this
Agreement does not and will not violate or conflict with or result
in a breach of or constitute (with notice of or lapse of time or
both) a default under the
5
6
Company's Articles of Incorporation, as amended, the Company's
Bylaws, as amended, or under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which the
Company is a party or by which it or any of its properties may be
bound or subject (but excluding any contract, commitment, agreement,
understanding, arrangement or restriction with any Owner or other
Executive Person).
ARTICLE IV
COVENANTS
Section 4.1 Grant of Irrevocable Proxy. Each Owner hereby grants
irrevocably to, and hereby constitutes and appoints Xxxxxx Xxxxx (and each
Successor (as defined below)), each of them acting singly and with full power of
substitution, as such Owner's proxy and attorney-in-fact, for and in the name,
place and stead of the Owner to vote all Common Stock held of record or
beneficially owned by the Owner (other than the Carved-Out Shares) now or at any
time in the future, or to grant a consent or approval in respect of such Common
Stock, and hereby directs his shares of Common Stock be present and voted in
accordance with the provisions of Section 4.2. Each Owner intends that the proxy
granted hereby shall be coupled with an interest pursuant to this Agreement, and
that therefore such proxy shall be irrevocable so long as this Section 4.1
remains in effect pursuant to the terms of this Agreement. Each Owner hereby
revokes any and all prior proxies and powers of attorney other than those
granted hereunder and under the Pledge Agreement to which such Owner is a party;
and the parties hereto acknowledge and agree that a proxy and power of attorney
was granted by each Owner to the Company under the Pledge Agreement to which
such Owner is a party. In the event of any conflict between the proxy and power
of attorney provided by an Owner under this Agreement and the proxy and power of
attorney provided by such Owner under his Pledge Agreement prior to the
occurrence of an Event of Default or a Concurrent Agreement Default (as such
terms are defined in the Pledge Agreement) by such Owner, the terms of the proxy
and power of attorney provided by such Owner under this Agreement shall govern
and control; however, upon the occurrence of an Event of Default or a Concurrent
Agreement Default by such Owner, the proxy and power of attorney provided by
such Owner under the Pledge Agreement to which he is a party shall govern and
control.
Xxxxxx Xxxxx (or his Successors) and any individual to whom Xxxxxx Xxxxx
(or any Successor) shall assign the proxy and attorney-in-fact and power of
attorney created by this Agreement (provided such individual is a stockholder of
the Company and executes a joinder to this Agreement in a form satisfactory to
the Company (each such individual, a "SUCCESSOR")) shall act as proxy and
attorney-in-fact pursuant to this Section 4.1 and Section 4.2 through any
individual(s) identified from time to time by Xxxxxx Xxxxx or a Successor for
such purpose. Each Owner hereby irrevocably consents to any such assignment by
Xxxxxx Xxxxx, the Company or any Successor of the proxy and power of attorney
created by this Agreement and the assumption thereof by each Successor.
6
7
Each Owner agrees that this Agreement constitutes a proxy covering the
Common Stock (other than the Carved-Out Shares) held of record and/or
beneficially owned by the Owner and, from time to time during the term of this
Agreement, including, without limitation, upon the (a) merger or reincorporation
of, or other material or significant transaction involving, the Company or (b)
resumption of this Agreement pursuant to Article V, he shall execute and deliver
any and all instruments requested by the Company (or its successors and assigns)
to confirm the arrangements contemplated by this Section 4.1.
Xxxxxx Xxxxx and each Successor shall have the right to exercise all
rights, benefits, privileges and powers accruing to each Owner, as record and/or
beneficial owner of any and all shares of Common Stock (other than the
Carved-Out Shares) owned of record or beneficially owned thereby, including,
without limitation, giving or withholding consent, calling and attending
stockholders' meetings to be held from time to time with full power to vote and
act for and in the name, place and stead of such Owner and in the same manner,
to the same extent, and with the same effect that such Owner would if personally
present at such meetings, giving to Xxxxxx Xxxxx and each Successor full power
of substitution and revocation, which proxy is effective, upon the execution and
delivery of this Agreement, without the necessity of any action (including the
transfer of any Common Stock on the record books of the Company) by any Person.
If Xxxxxx Xxxxx or any Successor shall die while he holds the proxy and
power of attorney granted hereunder or the Company concludes at any time that it
is preferable, for legal or other reasons, that the proxy and power of attorney
contained herein should be held directly by an individual other than Xxxxxx
Xxxxx or any Successor or by more than one individual, or if at any time the
proxy and power of attorney contained herein would otherwise not be held by a
person who owns any Common Stock, then each Owner hereby grants irrevocably to,
and hereby constitutes and appoints the Independent Directors (other than Xxxxxx
Xxxxx), and each of them individually, as each Owner's proxy and
attorney-in-fact (with full power of substitution), mutatis mutandis with the
appointment of Xxxxxx Xxxxx and any Successor hereunder. Xxxxxx Xxxxx and each
Successor agrees to provide the Company with at least five days prior notice
before he or she transfers his or her last share of Common Stock.
Section 4.2 Voting. During the term of this Agreement, for so long as
either Owner beneficially owns any Common Stock, each Owner consents and agrees
that Xxxxxx Xxxxx and any Successor or the Independent Directors will take such
action as may be required such that:
(a) all Common Stock known by the Company to be beneficially owned by
either Owner and subject to the irrevocable proxy granted pursuant
to Section 4.1 is present for quorum purposes, in person or
represented by proxy, at every meeting of the Company's
stockholders; and
7
8
(b) all Common Stock known by the Company to be beneficially owned by
either Owner and subject to the irrevocable proxy granted pursuant
to Section 4.1 is voted at every meeting of the Company's
stockholders (or, if applicable, written consent is given), in the
same proportion as the votes cast (or consent given) by all holders
of Common Stock excluding the Owners and Persons known by the
Company to be Affiliates or Associates of an Owner.
Section 4.3 Requirement to Tender. Each Owner will take all such action as
may be required such that, in connection with any tender offer or exchange offer
made for the Common Stock, the Common Stock owned of record or beneficially
owned by such Owner (other than the Carved-Out Shares) is tendered or exchanged
in the same proportion as the Common Stock tendered or exchanged by all holders
of Common Stock excluding the Owners and their respective Affiliates and
Associates.
Section 4.4 Board Representation and Other Matters. Each Owner agrees
that:
(a) No Owner will accept any appointment, election or nomination as an
officer or director of the Company.
(b) No Owner shall, and each Owner shall use his respective best efforts
to cause each other Executive Person not to, directly or indirectly,
whether alone or in concert with others, seek election to, seek the
removal of any directors of, or seek a change in the composition or
size of, the Board, or otherwise act in any way, directly or
indirectly, to Control the Board or otherwise have any involvement
in the management of the Company.
(c) No Owner shall, and each Owner shall use his respective best efforts
to cause each other Executive Person not to, directly or indirectly,
whether alone or in concert with others, designate, appoint, elect
or nominate, or participate in the designation or nomination of, any
officers of the Company or directors to the Board.
(d) No Owner shall, and each Owner shall use his respective best efforts
to cause each other Executive Person not to, directly or indirectly,
whether alone or in concert with others, cause or permit any of the
actions enumerated in Sections 4.4(a) through 4.4(c) to be taken,
whether or not unrelated third parties vote in favor of any such
action.
Section 4.5 Proxy Solicitations; Other Actions. Neither Owner shall, and
each Owner shall use his respective best efforts to cause each other Executive
Person not to, directly or indirectly, whether alone or in concert with others:
(a) make, or in any way participate in, any (i) "solicitation of
proxies" (as such terms are used in Regulation 14A promulgated under
the Exchange Act) or
8
9
solicitation of written authorizations or consents (within the
meaning of Regulation 14C promulgated under the Exchange Act), or
(ii) tender offer or exchange offer relating to the Common Stock or
any other Securities of the Company (other than as required by
Section 4.3);
(b) call, conduct or in any way consent to or participate in any special
meeting (or action by written authorization or consent) of
stockholders of the Company;
(c) request, or take any action to obtain or retain, any list of holders
of Common Stock or any Securities of the Company;
(d) initiate, propose, encourage or participate in the making of any
stockholder proposal relating to the Company;
(e) deposit any Common Stock in a voting trust or subject any Common
Stock to any voting agreement or similar agreement or arrangement,
including any grant of an irrevocable proxy, other than as
contemplated by this Agreement or any Concurrent Agreement;
(f) facilitate, encourage, disclose or pursue any intent, purpose, plan
or proposal with respect to the Company, the Board, management,
policies or affairs of the Company or any of the Securities or
assets of the Company or with respect to this Agreement or any of
the parties hereto that is inconsistent with the provisions of this
Agreement, including any intent, purpose, plan or proposal that is
conditioned on, or would require any waiver, amendment,
nullification or validation of, any provision of this Agreement, or
take any action that could require the Company to make any public
disclosure relating to any such intent, purpose, plan, proposal or
condition;
(g) facilitate, encourage, request or seek in any way a waiver,
amendment, consent or modification with respect to Section 4.1, 4.2,
4.3, 4.4 or this Section 4.5; or
(h) assist, advise, facilitate or encourage any Person with respect to,
or seeking to do, any of the foregoing.
Section 4.6 Notification as to Certain Matters. Each Owner agrees to
notify the Company in writing of any change in his record or beneficial
ownership of Common Stock (other than relating to the Carved-Out Shares). This
Section 4.6 shall not be deemed to be a consent by the Company with respect to
any such change; any such change in beneficial or record ownership (other than
with respect to the Carved-Out Shares) may only be effected in accordance with
the terms of this Agreement and each Concurrent Agreement.
9
10
ARTICLE V
TERM OF THE AGREEMENT
This Agreement shall expire as to an Owner (but not the other Owner) on
the later of the date which is the fifth anniversary of this Agreement and the
date on which the Note executed by that Owner in favor of the Company is
indefeasibly satisfied and paid in full. In addition, if the Common Stock
beneficially owned by an Owner constitutes less than 5% of the then outstanding
Common Stock and the Note executed by that Owner in favor of the Company is
indefeasibly satisfied and paid in full, then Section 4.1 of this Agreement
shall be suspended as to that Owner, but only for the period that such Owner
owns beneficially less than 5% of the outstanding Common Stock; Section 4.1 of
this Agreement shall again be in full force and effect at any time such Owner's
beneficial ownership equals or exceeds 5% of the outstanding Common Stock, and
shall remain in full force and effect as to the other Owner.
ARTICLE VI
SALE RIGHTS OF THE OWNERS
Intentionally Omitted.
ARTICLE VII
PRIOR TRANSFERS BY OWNERS
This Agreement is not intended to, and shall not apply to, (i) any Common
Stock formerly owned by either Owner and Transferred to any Person (other than
an Owner and/or any Owner's Executive Persons) prior to the date of this
Agreement (other than shares of Common Stock transferred to the Company under
the Pledge Agreement), or (ii) the Carved-Out Shares, provided that in the case
of clause (i), such Transfer was not restricted by any agreement or
understanding between the Company and either Owner, including the Concurrent
Agreements.
ARTICLE VIII
SAVINGS PROVISIONS
The proxy and power of attorney contained in this Agreement is being
granted by the Owners to induce further investment in, and/or third parties to
engage in potential strategic transactions with, the Company over the term of
this Agreement. Accordingly, the Owners intend that the proxy and power of
attorney contained herein be irrevocable until the termination of this
Agreement, as it is coupled with an interest in favor of Xxxxxx Xxxxx and each
and every Successor.
10
11
If at any time the proxy contained herein might be deemed revocable,
then this Agreement shall be deemed to be a voting agreement between the Owners
and Xxxxxx Xxxxx or a Successor and, if Xxxxxx Xxxxx or such Successor is not
then a holder of Common Stock, then as a voting agreement between the Owners and
each Independent Director who then holds any Common Stock. The provisions of
Sections 4.1 and 4.2 shall thereafter continue to be binding against each Owner
as a voting agreement by them with Xxxxxx Xxxxx, a Successor or the appropriate
Independent Directors, as appropriate.
Each Owner agrees, for himself and any other Person who may be
deemed to be a record or beneficial owner of any Common Stock subject to this
Agreement, that, to the fullest extent permitted by law, he will not voluntarily
participate in or assist in any litigation or other legal proceeding challenging
the validity of the proxy and power of attorney contained in this Agreement.
If this Agreement is deemed to be a voting agreement that, under
applicable law, would have a term that is shorter than the term set forth in
Article V, then the voting agreement shall continue for the maximum term
permitted by applicable law and, prior to any termination or expiration of the
term, each Owner shall consent to an extension of the term so that it is
co-terminous with the term set forth in Article V. Each Owner hereby appoints
Xxxxxx Xxxxx or a Successor as his attorney-in-fact to execute and deliver any
consent pursuant to this paragraph.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Entire Agreement; Assignment. This Agreement (a) constitutes
the entire agreement, taken together with the Concurrent Agreements, among the
parties with respect to its and their subject matter supersedes all other prior
and contemporaneous agreements and understandings, both written and oral, among
the parties with respect to its and their subject matter and is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder and (b) shall not be assigned by operation of law or otherwise without
the prior written consent of the other parties hereto, except that the Company
may assign this Agreement (by operation of law) to any successor or any other
Person to which the Company shall sell, assign or transfer all or a substantial
portion of its assets (if a Person shall become a successor to the Company or
the Company shall sell, assign or transfer all or a substantial portion of its
assets to another Person, references herein to the "Company" shall be to such
successor or other Person) and Xxxxxx Xxxxx and any Successor may assign his
rights and duties hereunder to a Successor. Any attempted assignment or transfer
in violation of this Section 9.1 shall be void ab initio and of no effect.
Subject to the foregoing, the provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective estates,
heirs, successors and assigns. The parties specifically acknowledge that the
Company and the Owners are concurrently entering into the Concurrent Agreements,
each of which shall
11
12
govern the conduct of the parties in accordance with their respective terms.
Notwithstanding anything to the contrary contained in this Section
9.1, each Independent Director shall be deemed to have assigned to any new
Independent Director, effective on the new Independent Director's election to
the Board, an enforceable interest in this Agreement; the interest of each
Independent Director shall continue for so long as he or she continues to serve
as such. No written assignment or notice to any Person, and no written
assumption by the new Independent Director, shall be required to effectuate the
assignment contemplated by this paragraph. (Notwithstanding the foregoing, a
newly elected Independent Director may reject the assignment of an interest
herein by written notice to the Company given within 30 days of his or her
election to the Board.) It is the intention of the parties that one or more
Independent Directors shall at all times have an enforceable interest in this
Agreement so that, in addition to a single remaining Owner, one or more
individual persons is at all times a party to this Agreement.
Section 9.2 Amendments, Waivers. Neither this Agreement nor any provision
hereof may be waived, modified, amended, altered or supplemented, except upon
the execution and delivery of a written agreement executed by the Company and
each Owner, except that a Successor may execute a joinder agreement (without
execution and delivery of any such joinder agreement by the Company or either
Owner) which shall constitute a signature page to this Agreement and his or her
agreement to assume Xxxxxx Xxxxx'x or a previous Successor's duties and
obligations hereunder and an assignment of Xxxxxx Xxxxx'x or such previous
Successor's proxy and power of attorney under this Agreement. The waiver by the
Company and Xxxxxx Xxxxx (or a Successor), on the one hand, or the Owners, on
the other, of the breach of any provision of this Agreement shall not operate,
or be construed, as a waiver of any subsequent breach thereof or a waiver of any
other provision of this Agreement.
Section 9.3 Notices. All notices, request, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by facsimile or overnight courier (providing proof
of delivery), to the parties at the following addresses (or at such other
address for a party as he or it shall specify by like notice):
If to the Owners, to:
Xxxx Xxxxxxxxx
X.X. Xxx 00000
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
12
13
Xxxx Xxxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxx, Chtd.
000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxx, Esq.
If to the Company, to:
Elektryon
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel and President
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx Xxxxxx, Esq.
If to Xxxxxx Xxxxx, to:
0 Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxx Xxxxxx, Esq.
13
14
Section 9.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard to
any applicable conflicts of law principles of such state.
Section 9.5 Enforcement. The parties agree that irreparable damage would
occur to the Company in the event that any of the provisions of this Agreement
or any Concurrent Agreement were not performed fully in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that any
party shall be entitled to an injunction or injunctions to prevent any breach of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court, this being in addition to any other remedy to which it
is entitled at law or in equity.
In addition, each of the parties hereto (a) consents to submit
itself to the non-exclusive personal jurisdiction of any federal court located
in the State of Nevada or any Nevada court in the event any dispute arises out
of this Agreement or any of the transactions contemplated by this Agreement, and
(b) agrees that it will not attempt to deny or defeat such non-exclusive
personal jurisdiction by motion or other request for leave from any such court.
Section 9.6 Stop Transfer Provision. The Company shall enter a stop
transfer order with the transfer agent or agents of the Common Stock against the
transfer of shares held by either Owner except in compliance with the
requirements of this Agreement and the Concurrent Agreements. The Company agrees
to remove any stop transfer order with respect to, and to issue certificates
without the legend set forth in Article II in substitution for, any shares of
Common Stock that are no longer subject to the restrictions contained in this
Agreement and the Concurrent Agreements.
Section 9.7 Counterparts; Effectiveness. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the parties. The parties agree
that a facsimile signature is effective as an original signature.
Section 9.8 Interpretation. When a reference is made in this Agreement to
a Section or Schedule, such reference shall be to a Section of, or Schedule to,
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purpose only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
Section 9.9 Severability. Whenever possible, each provision or portion of
any provision of this Agreement shall be interpreted in such manner as to be
effective but if any provision or portion of any provision of this Agreement is
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect
14
15
any other provision, and this Agreement will be reformed, construed and enforced
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein. The parties shall endeavor in good
faith negotiations to replace any invalid, illegal or unenforceable provision
with a valid provision the effects of which come as close as possible to those
of such invalid, illegal or unenforceable provision.
Section 9.10 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements,
in addition to any other relief to which it may be entitled.
Section 9.11 Survival. The representations, warranties, covenants and
agreements contained in this Agreement shall survive the execution and delivery
of this Agreement and any investigation at any time by or on behalf of the
Owners or the Company until the termination of this Agreement.
ELEKTRYON
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------
Title: President
-------------------------------
/s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
15
16
The undersigned, in his capacity as an Independent Director and a holder
of Common Stock, agrees that he is a party to the foregoing Voting Agreement if
it is determined that he shall be so in accordance with Section 4.1 in order to
render the Voting Agreement enforceable against the Owners in accordance with
its terms. At any time a new Independent Director is elected, the undersigned
shall be deemed to have assigned a portion of his rights under the foregoing
Voting Agreement to the new Independent Director(s) in accordance with Section
9.1.
/s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
16
