EX-2.3
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parkcitygroup8k083108ex2-3.htm
FORM OF
VOTING AGREEMENT
LOCK-UP AND
VOTING
AGREEMENT
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") and those
stockholders of Prescient Applied Intelligence, Inc., a Delaware corporation
(the "Company"),whose
signatures appear on the signature pages hereof (each a "Company Stockholder"
and collectively the "Company
Stockholders"). 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 execution of this Agreement, the Company Stockholders own 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”).
Contemporaneous
with the execution and delivery of this Agreement, Parent and the Company
Stockholders have entered into a Stock Purchase Agreement pursuant to which the
Parent has agreed to purchase, and has purchased, all of the Series E Stock
owned by each of the Company Stockholders.
Each of
the Company Stockholders continues to own the shares of Series G Stock and
Common Stock set forth on the Signature Page.
Contemporaneous
with 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, the Company Stockholders have
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. Each of the Company Stockholders 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, such Company Stockholder will appear at the meeting or
otherwise cause the Stockholder Company Shares now owned or hereafter acquired
by such 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; and
(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.
3. Restriction on
Disposition of Stockholder’s
Company Shares. Each of the Company Stockholders hereby agrees that,
during the Term, such 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, (b) a
Disposition to any affiliates of a Company Stockholder, 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, (c) a gift or other transfer 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 such Company Stockholder or 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, or (d)
a Disposition pursuant to a qualified domestic relations
order.
4. Restriction
Proxies and Non-Interference. Each of the Company Stockholders 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 such Company
Stockholder contained herein untrue or incorrect or would result in a breach by
such Company Stockholder of its obligations under this Agreement.
Each
Company Stockholder further agrees not to enter into any agreement or
understanding with any person or entity, the effect of which would be
inconsistent with or violative of any provision contained in this
Agreement.
5. Covenants,
Representations and Warranties of Company Stockholders. Each
Company Stockholder (severally, and not jointly and severally) hereby represents
and warrants to, and agrees with, Parent and Sub as follows:
(a) Ownership of
Shares. Such Company Stockholder is the sole record and beneficial owner
of that number of shares of Company Stock set forth next to such 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 such Company
Stockholder's Shares may be held by a broker in street name). On the date
hereof, such Stockholder Company Shares constitute all of the shares of Company
Stock owned of record or beneficially owned by such Company Stockholder (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
such Company Stockholder's Shares may be held by a broker in street
name). Such 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.
Such Company Stockholder (that is not a natural person) 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. Such Company Stockholder (that is a natural person) has the requisite
legal capacity and competency, and the full legal right to execute and deliver
this Agreement and perform his or her obligations hereunder. This Agreement has
been duly and validly executed and delivered by such Company Stockholder and
constitutes a valid and binding agreement enforceable against such 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 or entity, is necessary for
the execution of this Agreement by such Company Stockholder and the consummation
by such Company Stockholder of the transactions contemplated hereby,
and
(ii) none
of the execution and delivery of this Agreement by such Company Stockholder, the
consummation by such Company Stockholder of the transactions contemplated hereby
or compliance by such Company Stockholder with any of the provisions hereof
will
(A)
conflict with or result in any breach of the organizational documents of such
Company Stockholder (that is not a natural person),
(B)
result in a material violation or material breach of, or constitute (with or
without notice or lapse of time or both) a material 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 such Company Stockholder is a party or by which such 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 such Company Stockholder or any of his or its
properties or assets.
(d) No
Encumbrances. Such Company Stockholder owns his, her or 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 or under federal or
state securities laws 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. Such Company Stockholder understands and acknowledges
that Parent and Sub are entering into the Merger Agreement in reliance upon such
Company Stockholder's execution and delivery of, and compliance with, this
Agreement.
(f) Stockholder
Capacity. Such 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. Each Company Stockholder agrees that this Agreement and the
obligations hereunder shall attach to his, her or its Stockholder Company Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Stockholder Company Shares shall pass, whether by operation of
law or otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators or successors.
(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. Each Company Stockholder agrees to promptly
notify Parent of the number of shares of Company Common Stock acquired by such
Company Stockholder, if any, after the date of this Agreement.
(e) Waiver of
Appraisal Rights. Each Company Stockholder hereby waives, releases and
discharges any rights of appraisal or rights to dissent from the Merger that
such Company Stockholder may have.
(f) Assignments;
Rights of Assignees; Third Party Beneficiaries. This Agreement shall not
be assignable by any 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 or entity 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
New York (Manhattan),
New
York, (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:
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If
to Parent or Sub, to:
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Xxxxxxx
X. Xxxxxx, CEO
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Park
City Group, Inc.
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0000
Xxxxxxxxx Xx.
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Xxxx
Xxxx, XX 00000
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Email:xxxxx@xxxxxxxxxxxxx.xxx
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If
to any of the Company Stockholders:
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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.
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(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 become effective simultaneously with the execution and
delivery of the Merger Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth above.
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PARK
CITY GROUP, INC.
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By:
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Chief Executive officer
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COMPANY
STOCKHOLDER
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Print
name
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Address
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Email
Address
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Signature
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| Number
of Shares of Common Stock |
| Beneficially Owned: | | |
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| Number
of Shares of Series G Stock |
| Beneficially Owned: | | |
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| Number
of Shares of Series E Stock |
| Beneficially
Owned |
| Prior
to the execution of this Agreement: | |
