VOTING AGREEMENT
----------------
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of
the 6th day of May, 1999, by and among XXXXX XXXXX and XXXX XXXXXXX XXXXXX
(together, the "NOMINATORS") on the one hand and those individuals executing
this Agreement (the "INVESTOR SHAREHOLDERS") on the other hand.
WITNESSETH:
WHEREAS, the Investor Shareholders have agreed to purchase
securities from Xxx-Xxxxxxx Technologies, Inc., a Wyoming corporation (the
"COMPANY"); and
WHEREAS, as a condition to the purchase of the securities, the
Company, the Investor Shareholders and certain other parties agreed to enter
into a Shareholders' Agreement dated of even date herewith (the
"SHAREHOLDERS' AGREEMENT"); and
WHEREAS, pursuant to Section 2.1(b)(iii) of the Shareholders'
Agreement, holders of a majority of the shares held by the Investor
Shareholders shall be entitled to nominate three (3) members (the "INVESTOR
DIRECTORS") of the Company's Board of Directors; and
WHEREAS, the Investor Shareholders believe that it is in their best
interests to appoint the Nominators, on behalf of the Investor Shareholders,
to select the Investor Directors to be elected to the Board of Directors of
the Company.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto hereby agree as follows:
1. APPOINTMENT. Subject to the provisions of Section 2, The
Investor Shareholders hereby appoint the Nominators to select the Investor
Directors on behalf of the Investor Shareholders, at their sole and absolute
discretion.
2. VACANCIES. Upon the death, legal incapacity or removal of or
election not to serve by either Nominator, the rights of the Nominators
hereunder shall be exercised by the remaining Nominator. In the event of the
death, legal incapacity and/or removal or and/or election not to serve by
both Nominators, the Investor Shareholders holding a majority of the Shares
of all Investor Shareholders may select one or more successors as Nominators.
Failure by the Investor Shareholders to select a successor Nominator within
sixty (60) calendar days of receiving notice of such death, legal incapacity
or Transfer shall be deemed a "TERMINATION EVENT." For the purpose hereof, a
Nominator may be removed as a Nominator for any reason upon the vote of
Investor Shareholders holding at least 75% of the Shares held by all Investor
Shareholders.
3. TERM. This Agreement shall terminate only upon the earlier to
occur of termination of Section 2.1(b)(iii) of the Shareholders' Agreement or
a Termination Event.
4. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon each Investor
Shareholder's respective successors, assigns,
heirs, personal representatives, transferees and all future holders of the
capital stock of the Company held by the Investor Shareholders and in no
event may any Investor Shareholder transfer his Shares in any manner without
such transferee becoming a party to this Agreement.
5. AMENDMENTS. Any amendments to this Agreement shall be in
writing and shall be signed by all of the parties hereto.
6. REMEDIES FOR BREACH. The Investor Shareholders acknowledge that
the Nominators may not have an adequate remedy at law for the material breach
or threatened breach by any party of any one or more of the provisions set
forth in this Agreement and agree that, in the event of any such material
breach or threatened breach, in addition to the other remedies that may be
available to them, any of the Nominators may file a suit in equity, without
notice or bond, for specific performance or to enjoin any party from the
breach or threatened breach of such terms and conditions. In addition to all
other relief, the parties hereto shall be entitled to recover all costs and
attorneys' fees which may be incurred by them in enforcing their rights
against a party hereto that has breached or threatened to breach this
Agreement.
7. PARTIAL INVALIDITY. If any term or provision of this Agreement,
or the application thereof to any person or circumstance, shall to any extent
be invalid or unenforceable, as finally determined by a court of competent
jurisdiction, the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by applicable law.
8. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together shall be
deemed to constitute one and the same agreement.
9. WAIVER. The waiver of a breach of any provision of this
Agreement by the Company or any Shareholder party to this Agreement or the
failure of the Company or any Shareholder party to this Agreement to insist
upon the strict performance of any provision hereof shall not constitute a
waiver of any subsequent breach or of any subsequent failure to perform.
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
11. DEFINED TERMS. Capitalized terms used and not otherwise defined
in this Agreement, shall have the meanings described in the Shareholders'
Agreement.
2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
NOMINATORS:
/s/ Xxxxx Xxxxx
_________________________________
XXXXX XXXXX
/s/ Hans Xxxxxxx Xxxxxx
_________________________________
HANS XXXXXXX XXXXXX
INVESTOR SHAREHOLDERS:
/s/ Hans Xxxxxxx Xxxxxx
_________________________________
/s/ King Xxx Xxxx
_________________________________
/s/ Xxxxxxx Xx
_________________________________
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VOTING AGREEMENT
THIS VOTING AGREEMENT ("AGREEMENT") is made and entered into as of the
6th day of May, 1999, by and among XXXXXX XXXXXXXXXXX and XXXX XXXXXXX
(together, the "NOMINATORS") on the one hand and those individuals executing
this Agreement (the "INVESTOR SHAREHOLDERS") on the other hand.
WITNESSETH:
WHEREAS, the Investor Shareholders have agreed to purchase securities
from Xxx-Xxxxxxx Technologies, Inc., a Wyoming corporation (the "COMPANY"); and
WHEREAS, as a condition to the purchase of the securities, the Company,
the Investor Shareholders and certain other parties agreed to enter into a
Shareholders' Agreement dated of even date herewith (the "SHAREHOLDERS'
AGREEMENT"); and
WHEREAS, pursuant to Section 2.1(b)(ii) of the Shareholders' Agreement,
holders of a majority of the shares held by the Investor Shareholders shall be
entitled to nominate three (3) members (the "INVESTOR DIRECTORS") of the
Company's Board of Directors; and
WHEREAS, the Investor Shareholders believe that it is in their best
interests to appoint the Nominators, on behalf of the Investor Shareholders, to
select the Investor Directors to be elected to the Board of Directors of the
Company.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto hereby agree as follows:
1. APPOINTMENT. Subject to the provisions of Section 2, the Investor
Shareholders hereby appoint the Nominators to select the Investor Directors on
behalf of the Investor Shareholders, at their sole and absolute discretion.
2. VACANCIES. Upon the death, legal incapacity or removal of or
election not to serve by either Nominator, the rights of the Nominators
hereunder shall be exercised by the remaining Nominator. In the event of the
death, legal incapacity and/or removal or and/or election not to serve by both
Nominators, the Investor Shareholders holding a majority of the Shares of all
Investor Shareholders may select one or more successors as Nominators. Failure
by the Investor Shareholders to select a successor Nominator within sixty (60)
calendar days of receiving notice of such death, legal incapacity or Transfer
shall be deemed a "TERMINATION EVENT." For purposes hereof, a Nominator may be
removed as a Nominator for any reason upon the vote of Investor Shareholders
holding at least 75% of the Shares held by all Investor Shareholders.
3. TERM. This Agreement shall terminate only upon the earlier to
occur of termination of Section 2.1(b)(ii) of the Shareholders' Agreement or
a Termination Event.
4. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon each Investor Shareholder's
respective successors, assigns, heirs, personal representatives, transferees and
all future holders of the capital stock of the Company held by the Investor
Shareholders and in no event may any Investor Shareholder transfer his Shares in
any manner without such transferee becoming a party to this Agreement.
5. AMENDMENTS. Any amendments to this Agreement shall be in writing and
shall be signed by all of the parties hereto.
6. REMEDIES FOR BREACH. The Investor Shareholders acknowledge that the
Nominators may not have an adequate remedy at law for the material breach or
threatened breach by any party of any one or more of the provisions set forth in
this Agreement and agree that, in the event of any such material breach or
threatened breach, in addition to the other remedies that may be available to
them, any of the Nominators may file a suit in equity, without notice or bond,
for specific performance or to enjoin any party from the breach or threatened
breach of such terms and conditions. In addition to all other relief, the
parties hereto shall be entitled to recover all costs and attorneys' fees which
may be incurred by them in enforcing their rights against a party hereto that
has breached or threatened to breach this Agreement.
7. PARTIAL INVALIDITY. If any term or provision of this Agreement, or
the application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, as finally determined by a court of competent
jurisdiction, the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
applicable law.
8. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which together shall be deemed
to constitute one and the same agreement.
9. WAIVER. The waiver of a breach of any provision of this Agreement by
the Company or any Shareholder party to this Agreement or the failure of the
Company or any Shareholder party to this Agreement to insist upon the strict
performance of any provision hereof shall not constitute a waiver of any
subsequent breach or of any subsequent failure to perform.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
11. DEFINED TERMS. Capitalized terms used and not otherwise defined in
this Agreement, shall have the meanings described in the Shareholders'
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NOMINATORS:
/s/ Xxxxxx Xxxxxxxxxxx
-----------------------------------------
XXXXXX XXXXXXXXXXX
/s/ Xxxx Xxxxxxx
-----------------------------------------
XXXX XXXXXXX
INVESTOR SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx Revocable Trust
-----------------------------------------
/s/ Xxxxxxxx X. Xxxxxx Trust
-----------------------------------------
/s/ Xxxxxxx X. Xxxxx Trust
-----------------------------------------
/s/ Couderay Partners
-----------------------------------------
/s/ Xxxxxx Xxxx, Xx. Revocable Trust
-----------------------------------------
/s/ Xxxx Xxxxxxx
-----------------------------------------
/s/ Morningstar Trust by Xxxx Xxxxxxxxxxx,
-----------------------------------------
Trustee
-----------------------------------------
/s/ Xxxxxx Xxxxxxxxxxx
-----------------------------------------
/s/ Resolute Partners by Xxxxxx
-----------------------------------------
Xxxxxxxxxxx
-----------------------------------------
/s/ Xxxxxxxxx Asset Management
-----------------------------------------
/s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------------
/s/ Xxxxxx X. Xxxxx, Xxxxx Xxxxx, Trustee
-----------------------------------------
/s/ Xxxxx X. Xxxx Trust, Xxxxx X. Xxxx,
-----------------------------------------
Trustee
-----------------------------------------
/s/ Xxxxxx Xxxx
-----------------------------------------
-3-
/s/ Xxxxxx X. Xxxx Revocable Trust,
-----------------------------------
Xxxxxx X. Xxxx, Trustee
-----------------------------------------
/s/ Xxxxxx X. Xxxx
-----------------------------------------
/s/ Xxxx X. Xxxxxx
-----------------------------------------
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
/s/ Xxxxx Xxxxxx
-----------------------------------------
/s/ JO & Co. by Xxxx X. Xxxxxxx, Partner
-----------------------------------------
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
/s/ The Xxxxxxxxxx & Xxxxxxx Profit
-----------------------------------
Sharing Plan & Trust by Xxxx X.
-------------------------------
Xxxxxxxxxx, Trustee
-----------------------------------------
/s/ Xxxxxxxx X. Xxxxxx Trust, Xxxxxxxx X.
-----------------------------------------
Xxxxxx, Trustee
-----------------------------------------
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
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