Exhibit 9
Voting Agreement
MEDIQUIK SERVICES, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into
as of the 29th day or August, 2000, by and among MEDIQUIK SERVICES, INC., a
Delaware corporation (the "Company"), those certain existing holders of the
Company's Common Stock listed on Exhibit A hereto (the "Founders"), and
MIRAQUEST VENTURES LLC, all Idaho limited liability company (the "Investor").
RECITALS:
A. The Founders are the beneficial and record owners of the shares
of Common Stock of the Company set forth opposite their names in Exhibit A.
B. The Company proposes to sell 7,048,996 shares of its Common
Stock and 513,266 shares of its Series A Preferred Stock to the investor
pursuant to a Stock Purchase Agreement.
C. In connection with the consummation of the issue and sale of
the stock pursuant to the Stock Purchase Agreement, the Founders and the
Investor have agreed to provide for the future voting of their shares of the
Company's capital stock as set forth below.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. VOTING
1.1 Agreement of Founder mid Investor.
(a) The Founders each agree to vote all shares of voting
capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially acquired by each of the
Founders after the date hereof (hereinafter collectively referred to as the
"Founder Shares") subject to, and in accordance with, the provisions of this
Agreement.
(b) The Investor agrees to vote all shares of voting capital
stock of the Company registered in its name or beneficially owned by it as of
the date hereof, and any and all other securities of the Company legally or
beneficially acquired by the investor after the date
VOTING AGREEMENT - 1
082500 1430 BOI MTI:297008.S
hereof (hereinafter collectively referred to as the "Investor Shares") subject
to, and in accordance with, the provisions of this Agreement.
1.2 Election of Directors. The number of authorized directors of
the Company will be, as of the date of this Agreement, set at seven (7). At
each annual meeting of the stockholders of the Company, or at any meeting of
the stockholders of the Company at which members of the Board are to be
elected, or whenever members of the Board are to be elected by written consent,
the Founders agree to vote or act with respect to their Founder Shares and the
Investor agrees to vote or act with respect to its Investor Shares so as to
elect (a) two (2) representatives nominated by the Investor, and (b) five (5)
representatives nominated by the Founders. In the event of any termination,
removal or resignation of any director, the parties hereto shall take all
actions necessary and appropriate to cause such vacancy to be filled in the
manner by which such director was elected pursuant to the terms of this
Agreement.
1.3 Rights as Shareholder. Except as provided by this Agreement.
each Founder shall exercise the full rights of a shareholder with respect to
the Founder Shares, and the investor shall exercise the full rights of a
shareholder with respect to the Investor Shares.
1.4 No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
SECTION 2. TERMINATION
This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a) the date as of which the parties hereto terminate this
Agreement by written consent of holders of a majority in interest of the
investor Shares and the Founder Shares;
(b) when the Company shall (i) sell, convey or otherwise
dispose of all or substantially all of its property or business or merge or
consolidate with any other corporation (other than a wholly-owned subsidiary
corporation) where the stockholders of the Company own less than fifty percent
(50%) of the voting power of the surviving entity after such merger or
consolidation or (ii) effect any other transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Company is disposed of, provided, however, that this subsection (c) shall
not apply to a merger effected exclusively for the purpose of changing the
domicile of the Company; or
(c) August 29, 2001.
VOTING AGREEMENT - 2
082500 1430 BOI MTI:297008.S
SECTION 3. MISCELLANEOUS
3.1 Binding Provisions. The provisions of this Agreement shall be
binding upon the successors in interest to any of the Founder Shares or Investor
Shares.
3.2 Specific Performance. The parties hereto hereby declare that it
is impossible to measure in money the damages which will accrue to a party
hereto or to their heirs, personal representatives, or assigns by reason of a
failure to perform any of the obligations under this Agreement and agree that
the provisions of this Agreement shall be specifically enforceable. If any
party hereto or his heirs, personal representatives, or assigns institutes any
action or proceeding to specifically enforce the provisions hereof, any person
against whom such action or proceeding is brought hereby waives the claim or
defense therein that such party or such personal representative has an adequate
remedy at law, and such person shall not offer in any such action or proceeding
the claim or defense that such remedy at law exists.
3.3 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Idaho. Each of the parties hereto
hereby submits to the exclusive jurisdiction of the United States District Court
for the District of Idaho and of any Idaho state court sitting in the County of
Ada, State of Idaho, for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
3.4 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a)
such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded, amid (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
3.5 Amendment. This Agreement may be amended or modified and any
term hereof may be waived only by an instrument in writing signed by the
Company, the holders of a majority of the Investor Shares and the holders of a
majority of the Founder Shares. Any amendment or waiver effected in accordance
with this Section 4.5 shall be binding upon the Company, the Investor, and any
holder of Founder Shares, and each of their respective successors and assigns.
3.6 Waiver. It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any party hereto, upon any breach, default or
noncompliance by any party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or any similar
VOTING AGREEMENT - 3
082500 1430 BOI MTI:297008.S
breach, default or noncompliance thereafter occurring. It is further agreed that
any waiver, permit, consent or approval of any kind or charter on any
party's part of any breach, default or noncompliance under this Agreement or
any waiver on such party's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to any party hereunder, shall be
cumulative and not alternative.
3.7 Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal delivery to
the party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address as set forth on the Signature Page hereto,
or at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto.
3.8 Attorneys' Fees. In the event that any dispute among the
parties to this Agreement should result in litigation, the prevailing party
in such dispute shall be entitled to recover from the losing party all fees,
costs and expenses of enforcing any right of such prevailing party under or
with respect to this Agreement, including, without limitation, such reasonable
fees and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
3.9 Construction. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. All pronouns contained herein and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties hereto may require:
3.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[Signature Page Follows]
VOTING AGREEMENT - 4
082500 1430 BOI MTI:297008.S
IN WITNESS WHEREOF, the parties hereto have duly executed this
Voting Agreement as of the day and year first written above.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ Grant Gables
------------------------------------------------
Grant Gables, President
Address for Notice:
4295 MediQuik Services, Inc.
Xxxxxxx, Xxxxx 00000
FOUNDERS:
/s/ Xxxxxx X. Xxxxxx Xx
--------------------------------------------------
Xxxxxx X. Xxxxxx Xx
Address for Notice:
0000 Xxx Xxxxxx, Xxx 000
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
/s/ R. Xxxxx Xxxxxxxxxxx
--------------------------------------------------
R. Xxxxx Xxxxxxxxxxx
Address for Notice:
0000 Xxxx Xxx. So.
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
THE XXXXXX GROUP
By /s/ Xxxx Xxxxxx
------------------------------------------------
Name Xxxx Xxxxxx
--------------------------------------------
Title General Manager
-------------------------------------------
VOTING AGREEMENT - 5
082500 1430 BOI MTI:297008.S
Address for Notice:
3121 Buffalo Speedway #5407
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
THE XXXXXX MANAGEMENT GROUP, INC.
By /s/ Xxxx Xxxxxx
------------------------------------------------
Name Xxxx Xxxxxx
--------------------------------------------
Title General Manager
-------------------------------------------
Address for Notice:
3121 Buffalo Speedway #5407
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
/s/ Grant M. Gables
--------------------------------------------------
Grant M. Gables
Address for Notice:
00000 Xxxxxxxxx Xxx
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
JACODY FINANCIAL, INC.
By /s/ Xxx Xxxxxx
------------------------------------------------
Name Xxx Xxxxxx
--------------------------------------------
Title President
-------------------------------------------
Address for Notice:
0000 Xxxxxxx #000
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
VOTING AGREEMENT - 6
082500 1430 BOI MTI:297008.S
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address for Notice:
000 Xxxxxx Xxxxx
--------------------------------------------------
Xxxxxxx, XX 00000
--------------------------------------------------
INVESTOR:
MIRAQUEST VENTURES LLC
By /s/ Xxxxx Xxxxxxxx, Chief Executive Officer
-----------------------------------------------
Xxxxx Xxxxxxxx, Chief Executive Officer
Address for Notice:
000 Xxxxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000
VOTING AGREEMENT - 7
082500 1430 BOI MTI:297008.S
LIST OF FOUNDERS
No. of Shares of
Name of Founder Common Stock
--------------- -------------
Xxxxxx X. Xxxxxx, Xx. 336,628
R. Xxxxx Xxxxxxxxxxx 268,040
The Xxxxxx Group 214,432
The Xxxxxx Management Group, Inc. l59,752
Grant M. Gables 523,213
Jacody Financial, Inc. 424,543
Xxxxxxx X. Xxxxxxxxx 136,165
VOTING AGREEMENT - 8
082500 1430 BOI MTI:297008.S
