EXHIBIT 10.1
FORM OF
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 10, 2002 (this "Agreement"), by and among
each of those stockholders of EVTC, Inc., a Delaware corporation having an
address at 00000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000 (the "Company"), identified on
Exhibit A hereto (collectively the "Principal Stockholders").
WHEREAS, the Company, Innovative Waste Technologies, LLC, a Nevada limited
liability company ("IWT") and each of the members of IWT entered into a
Securities Purchase Agreement, dated as of March 23, 2002 and amended May 10,
2002 (as amended, the "Purchase Agreement"), providing for, among other things,
the acquisition by the Company of all of the membership interest held by Messrs.
Xxxxxxx and Xxxxxx, for and in exchange for 10 million shares of the common
stock, par value $.01 per share, of the Company (the "Common Stock") and,
subject to the subsequent approval by the stockholders of the Company of an
amendment to the Company's certificate of incorporation to increase the number
of authorized shares of Common Stock from 25,000,000 shares to 100,000,000
shares (the "Share Amendment"), derivative securities granted to purchase up to
15,000,000 shares of Common Stock;
WHEREAS, the Principal Stockholders beneficially own of record or exercise
sole voting power over that number of shares of the Common Stock (the "Shares"),
as more particularly set forth on Exhibit A attached hereto; and
WHEREAS, as a condition and inducement to the Company's execution of the
Purchase Agreement, the Company has requested that the Principal Stockholders
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Purchase Agreement, and intending to be legally bound hereby, the Principal
Stockholders agree as follows:
1. Voting of Shares; Proxy.
(a) Agreement to Vote. The Principal Stockholders agree:
(i) to vote the Shares in favor of the Share Amendment;
(ii) to vote the Shares in favor of the adoption of the
Company's 2002 Stock Incentive Plan (the "2002 Plan"), a copy of which is
attached hereto as Exhibit B;
(iii) to express consent to corporate action in writing without a
meeting on all the Shares for all matters regarding the Share Amendment and
the 2002 Plan and the transactions contemplated thereby.
(b) Proxy. Each of the Principal Stockholders hereby irrevocably
grants to and appoints Xxx X. Xxxxxxx, in his capacity as an officer of the
Company, with full power of substitution (such individual and his substitutes
each being referred to herein as the "Proxy"), as
attorney and proxy to vote all Shares on all matters regarding the adoption and
implementation of the Share Amendment and the Company's 2002 Stock Option (the
"2002 Plan") Plan, including, without limitation, the filing of an Information
Statement on Schedule 14C regarding the adoption of the Share Amendment and the
2002 Plan and any filing of a registration statement on Form S-8 registering the
Common Stock to be issued under the 2002 Plan, with the Securities and Exchange
Commission (the "SEC"), as to which the Principal Stockholders are entitled to
vote at a meeting of all of the stockholders of the Company, or to which the
Principal Stockholders are entitled to express consent to corporate action in
writing without a meeting, in the Proxy's absolute, sole and binding discretion.
The Principal Stockholders agree that the Proxy may, in the Principal
Stockholders names and stead, (i) attend any annual or special meeting of the
stockholders of the Company and vote all Shares on all matters regarding the
Share Amendment and the 2002 Plan, and (ii) execute with respect to all Shares
any written consent to corporate action respecting any matter regarding the
Share Amendment and the 2002 Plan to which the stockholders of the Company are
entitled to express such consent without a meeting. With respect to any matter
regarding the Share Amendment and the 2002 Plan, the Principal Stockholders
agree to refrain from (a) voting at any annual or special meeting of the
stockholders of the Company, (b) executing any written consent in lieu of a
meeting of the stockholders of the Company, (c) exercising any rights of dissent
with respect to the Shares, and (d) granting any proxy or authorization to any
person with respect to the voting of the Shares, except pursuant to this
Agreement, or taking any action contrary to or in any manner inconsistent with
the terms of this Agreement. The Principal Stockholders agree that this grant of
proxy pursuant to this Section 1(b) is irrevocable and coupled with an interest
and agrees that the persons designated as the Proxy pursuant hereto may at any
time name any other person who is an officer of the Company as a substituted
Proxy hereunder to act pursuant hereto, either as to a specific matter or as to
all matters. The Principal Stockholders further agree to execute all additional
writings, consents and authorizations as may be reasonably requested by the
Proxy in writing to evidence the powers granted to the Proxy hereby or to enable
the Proxy to exercise those powers. The Principal Stockholders hereby revoke any
proxy previously granted by them with respect to the Shares.
The Principal Stockholders affirm that the grant of proxy set forth in
this Section 1(b) is given, in part, in connection with the execution of the
Purchase Agreement, and that such proxy is given to secure the performance of
the duties of the Principal Stockholders under this Agreement.
2. Representations and Warranties of the Principal Stockholders. The
Principal Stockholders hereby severally represent and warrant to the Company, as
follows:
(a) Ownership. Collectively, the Principal Stockholders beneficially
own the Shares, free and clear of all liens, claims, charges and encumbrances of
any kind whatsoever except as otherwise provided on Schedule 2(a) attached
hereto.
(b) Due Authorization. Each of the Principal Stockholders has the
necessary capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. There are no restrictions on any voting rights
or rights of disposition with respect to the Shares. This Agreement constitutes
a valid and binding agreement of each of the Principal Stockholders, enforceable
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship,
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receivership, or similar laws relating to, or affecting generally the
enforcement of creditor's rights and remedies or by other equitable principles
of general application.
(c) No Conflicts. Neither the execution and delivery of this Agreement
nor the consummation by the Principal Stockholders of the transactions
contemplated hereby will conflict with or constitute a violation of or default
under any material contract, commitment, agreement, arrangement or restriction
of any kind to which any of the Principal Stockholders is a party or is bound.
3. Termination. This Agreement and Proxy shall terminate immediately upon
the earlier of (the "Termination Date") (i) the Effective Date of the Share
Amendment and the subsequent Effective Date of the Registration Statement on
Form S-8 registering the Common Stock to be issued under the 2002 Plan or (ii)
September 30, 2002.
4. Transfer of the Shares. Prior to the Termination Date, the Principal
Stockholders shall not: (i) transfer, sell, gift-over, pledge or otherwise
dispose of, or consent to any of the foregoing ("Transfer"), with regard to any
or all of the Shares or any interest therein; (ii) enter into any contract,
option or other agreement or understanding with respect to any Transfer of the
Shares; (iii) grant any proxy, power-of-attorney or other authorization or
consent with respect to any of the Shares; (iv) deposit any of the Shares into a
voting trust, or enter into a voting agreement or arrangement with respect to
any of the Shares; or (v) except in fulfillment of their fiduciary obligations
as directors of the Company, take any other action that would in any way
restrict, limit or interfere with the performance of the Principal Stockholders'
obligations hereunder or the transactions contemplated hereby.
5. Miscellaneous.
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(a) Expenses. Each of the parties hereto shall bear and pay all costs
and expenses incurred by such party or on its behalf in connection with the
transactions contemplated hereunder, including, without limitation, the fees and
expenses of its own financial consultants, investment bankers, accountants and
counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of such
provision, any such waiver to be evidenced in writing. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by all of the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary. This Agreement (i)
constitutes the entire understanding and agreement of the parties with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to such
subject matter and (ii) is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
(d) Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law that would defer to the substantive laws of another jurisdiction).
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(e) Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, demands, consents, requests, instructions
and other communications to be given or delivered or permitted under or by
reason of the provisions of this Agreement, or in connection with the
transactions contemplated hereby shall be in writing and shall be deemed to be
delivered and received by the intended recipient as follows: (a) if personally
delivered, on the business day of such delivery (as evidenced by the receipt of
the personal delivery service); (b) if mailed by certified or registered mail
return receipt requested, four (4) business days after the aforesaid mailing;
(c) if delivered by overnight courier (with all charges having been prepaid), on
the second business day of such delivery (as evidenced by the receipt of the
overnight courier service of recognized standing); or (d) if delivered by
facsimile transmission, on the business day of such delivery if sent by 6:00
p.m. in the time zone of the recipient, or if sent after that time, on the next
succeeding business day (as evidenced by the printed confirmation of delivery
generated by the sending party's telecopier machine). If any notice, demand,
consent, request, instruction or other communication cannot be delivered because
of a changed address of which no notice was given (in accordance with this
Section 8), or the refusal to accept same, the notice, demand, consent, request,
instruction or other communication shall be deemed received on the business day
the notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the addresses or facsimile numbers, as applicable, set forth on
Exhibit A attached hereto or otherwise first set forth hereto or to such other
address as any party may specify by notice given to the other party in
accordance with this Section 5(f). A copy of all notices and communications to
the Company should also be sent to Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, The
Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Attn: Xxxxxx Xxxx
Xxxxxxxx, Esq.) Fax: (000) 000-0000.
(g) Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors, permitted assigns, heirs, executors,
administrators and other legal representatives.
(i) Further Assurances. The Principal Stockholders shall execute and
deliver all other documents and instruments and take all other action that may
be requested by the other as being necessary to provide the rights and benefits
contemplated by this Agreement.
(j) Specific Performance. The parties acknowledge that it would be
impossible to fix money damages for violations of this Agreement and that such
violations will cause irreparable injury for which adequate remedy at law is not
available and, therefore, this Agreement must be enforced by specific
performance or injunctive relief. The parties hereto agree that any party may,
in its sole discretion, apply to any court of competent jurisdiction for
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specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection or defense to the imposition of such relief. Nothing herein shall be
construed to prohibit any party from bringing any action for damages in addition
to an action for specific performance or an injunction for a breach of this
Agreement.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Principal Stockholders have caused this Voting
Agreement to be signed by themselves or their respective officers thereunto duly
authorized, all as of the day and year first written above.
XXX X. XXXXXXX
----------------------------------------
Dated:
XXXX X. XXXXXX
----------------------------------------
Dated:
BRASADA ENERGY, INC.
By:
-------------------------------------
Dated:
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EXHIBIT A
PRINCIPAL STOCKHOLDERS
----------------------
Name of Stockholder Address of Stockholder
--------------------------------- --------------------------------------
Xxx X. Xxxxxxx c/o Innovative Waste Management, LLC
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxx X. Xxxxxx c/o Innovative Waste Management, LLC
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Brasada Energy, Inc. c/o Innovative Waste Management, LLC
00000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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SCHEDULE 2(A)
LIENS
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None
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