VOTING AGREEMENT
VOTING
AGREEMENT, dated as of February 12, 2010 (this "Agreement"), by and among
Perpetual Technologies, Inc., a Delaware corporation (the "Company"), the stockholders
listed on the signature pages hereto under the heading "Stockholders" (each a "Stockholder" and collectively,
the "Stockholders"), and
the Investors (as defined below).
WHEREAS,
the Stockholders own and have the power and authority to vote an aggregate of
[_________] shares of Common Stock, which represent in the aggregate a majority
of the issued and outstanding capital stock of the Company entitled to vote;
and
WHEREAS,
in order to induce the Investors to enter into the Note Purchase Agreement and
to consummate the transactions contemplated thereby, and as a condition thereto,
each Stockholder desires to enter into this Agreement with respect to all the
shares of Common Stock and any other shares of capital stock of the Company
which carry voting rights, now owned and which may hereafter be acquired by the
Stockholder (including without limitation, via stock splits, stock dividends),
and any other securities of the Company which such Stockholder is currently
entitled to vote, or after the date hereof, becomes entitled to vote, at any
meeting of stockholders of the Company (collectively, the "Shares").
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows (unless otherwise defined herein
capitalized terms shall have the respective meanings set forth in the Note
Purchase Agreement):
ARTICLE
I
VOTING AGREEMENT OF THE
STOCKHOLDERS
SECTION
1.01. Voting
Agreement. Each Stockholder hereby agrees to take all such
action as may be necessary or appropriate to elect one representative to the
Board of Directors of each of the Company, BVI Company, Technic and Foshan as
shall be designated by the Majority in Interest (as defined below) (the “Noteholder Designee”), and to
maintain such Noteholder Designee as a director of each such company until time
as the Notes are no longer outstanding. Without limiting the
foregoing, each Stockholder agrees that at any meeting of the stockholders of
the Company for the election of directors, however called, and in any action by
written consent of the Company's stockholders, such Stockholder shall vote his
Shares: (a) to elect the Noteholder Designee as a director of the
Company, and (b) against any proposal or any other corporate action or agreement
that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Note Purchase Agreement
or any other Transaction Document (as defined in the Note Purchase Agreement)
or, except as provided in Section 1.02 hereof, which could result in the removal
of the Noteholder Designee prior to the time the Notes are no longer
outstanding. Each Stockholder acknowledges receipt and review of a
copy of the Note Purchase Agreement and the other Transaction
Documents. The Majority in Interest designates Xxxxx Xxxxxx as the
initial Noteholder Designee.
SECTION
1.02. The Noteholder Designee shall be elected at any annual or
special meeting of stockholders (or by written consent in lieu of a meeting of
stockholders) and shall serve until his or her successor is elected and
qualified or until his or her earlier death, resignation or
removal. The Stockholders shall vote all of their Shares to cause the
Noteholder Designee to be removed from his or her position as a director during
his or her term of office, when, and only when, such removal is requested by
Note holders holding Notes evidencing at least 51% of the principal amount of
the Notes then outstanding (the “Majority in
Interest”). In the event of any vacancy in the board seat to
be filled by the Noteholder Designee, the Company agrees to promptly nominate,
and the Stockholders agree to promptly vote their Shares, to elect such person
as has been designated to fill such position in the manner set forth in this
Article 1.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF THE STOCKHOLDERS
Each
Stockholder hereby represents and warrants, severally but not jointly, to each
of the Investors as follows:
SECTION
2.01. Authority Relative to This
Agreement. Each Stockholder has all necessary power and
authority to execute and deliver this Agreement, to perform his or its
obligations hereunder, and to consummate the transactions contemplated
hereby. Each Stockholder has taken whatever steps necessary,
including without limitation, moving the Shares from a margin account to a cash
account and/or delivering any voting instructions or legal proxy to any
necessary broker or agent, to ensure that such Stockholder has the necessary
power and authority to vote all of his Shares or has properly empowered such
broker or agent to vote in accordance herewith. This Agreement has
been duly executed and delivered by such Stockholder and constitutes a legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms.
SECTION
2.02. No
Conflict. i) The execution and delivery of this
Agreement by such Stockholder does not, and the performance of this Agreement by
such Stockholder shall not, (i) conflict with or violate any federal, state or
local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to any Stockholder or by which such Stockholder’s Shares are bound or
affected or (ii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of such Stockholder’s
Shares pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
such Stockholder is a party or by which such Stockholder or his Shares are
bound.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity by such Stockholder.
2
SECTION
2.03. Title to the
Stock. As of the date hereof, such Stockholder is the owner of
the number and kind of shares of Shares set forth opposite its name on Appendix A attached
hereto, and is entitled to vote such Shares, without restriction, on all matters
brought before holders of capital stock of the Company. Such Shares
are all the securities of the Company owned, either of record or beneficially,
by such Stockholder, and are owned by such Stockholder free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on such Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever. Such Stockholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to such Stockholder’s Shares.
ARTICLE
III
COVENANTS
SECTION
3.01. No Disposition or
Encumbrance of Stock. Each Stockholder hereby covenants and
agrees that, for so long as the Notes are outstanding, such Stockholder shall
not offer or sell, transfer, tender, assign, hypothecate or otherwise dispose
of, grant a proxy or power of attorney with respect to, or create or permit to
exist any security interest, lien, claim, pledge, option, right of first
refusal, agreement, limitation on such Stockholder's voting rights, charge or
other encumbrance of any nature whatsoever ("Encumbrance") with respect to
his Shares, or directly or indirectly initiate, solicit or encourage any person
to take actions which could reasonably be expected to lead to the occurrence of
any of the foregoing.
SECTION
3.02. Company
Cooperation. The Company hereby covenants and agrees that it
will not, and each Stockholder irrevocably and unconditionally acknowledges and
agrees that the Company will not (and waives any rights against the Company in
relation thereto), recognize any Encumbrance or agreement on any of the
Shares. The Company shall take no actions to contravene the purpose
of this Agreement.
SECTION
3.03. Notices. The
Company shall provide the Investors and the Stockholders with reasonable prior
written notice, such that the Noteholder Designee can be included in the
intended mailing, of any intended mailing of notice to stockholders for a
meeting at which directors are to be elected, and the Majority in Interest shall
notify the Company in writing, prior to such mailing, of the person designated
by them as the Noteholder Designee. If the Majority in Interest fails
to provide notice to the Company as provided above, the existing member of the
Board serving as the Noteholder Designee shall be deemed to be the Noteholder
Designee for reelection to the Board of Directors.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances. Each Stockholder will execute and deliver such
further documents and instruments and take all further action as may be
reasonably necessary in order to consummate the transactions contemplated
hereby.
SECTION
4.02. Specific
Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof, and that any Investor (without being joined by
any other Investor) shall be entitled to specific performance of the terms
hereof (without the need to post any bond or other security or prove special
damages), in addition to any other remedy at law or in equity. Any
Investor shall be entitled to its attorneys' fees reasonably incurred in any
action brought to enforce this Agreement in which it is the prevailing
party.
3
SECTION
4.03. Entire
Agreement. This Agreement constitutes the entire agreement
among the Company and the Stockholders (other than the Note Purchase Agreement
and the other Transaction Documents) with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
among the Company and the Stockholders with respect to the subject matter
hereof.
SECTION
4.04. Amendment. This
Agreement may not be amended except by an instrument in writing signed by all
the parties hereto.
SECTION
4.05. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
SECTION
4.06. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law
thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, employees or agents) will be commenced in the New York
Courts. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any proceeding, any claim that it is not personally subject to the jurisdiction
of any New York Court, or that such proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any proceeding arising out of or
relating to this Agreement or the transactions contemplated
hereby. If either party shall commence a proceeding to enforce any
provisions of this Agreement, then the prevailing party in such proceeding shall
be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
proceeding.
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SECTION
4.07. No
Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with Section 4.04
hereof. Nothing in this Section 4.07 shall be construed as
limiting the provisions of Section 4.08 hereof.
SECTION
4.08. Termination. This
Agreement shall terminate immediately upon the earlier of the consummation of a
Qualified Financing (as defined in the Note Purchase Agreement), such time as
the Notes are paid in full, or upon the consent of all of the
Investors.
SECTION
4.09. Counterparts; Facsimile
Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same document. This Agreement
may be executed and delivered by exchange of facsimile copies showing the
signatures of the parties, and those signatures need not be affixed to the same
copy. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
SECTION
4.10. Binding Effect;
Assignment. This Agreement shall be binding upon the heirs,
executors, personal representatives, and successors of the Stockholders and
shall inure to the benefit of the Investors, all future holders of the Notes (or
any note or other instrument issued in substitution or replacement thereof), and
their respective heirs, executors, and personal representatives, successors and
assigns.
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[Signature
Page to Voting Agreement]
IN
WITNESS WHEREOF, each Stockholder and the Company has duly executed this
Agreement.
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THE
COMPANY:
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PERPETUAL
TECHNOLOGIES INC.
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By:
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Name: Xxx
Xx
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Title: Chief
Executive Officer
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Dated: February 12,
2010
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Address:
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Name
of Stockholders
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By:
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Name:
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Title:
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Dated: February
12, 2010
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Address:
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Names
of Investors
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By:
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Name:
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Title:
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Dated: February
12, 2010
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Address:
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APPENDIX
A
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Stockholder
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Common
Stock
Owned
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Other
Securities Owned
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Percentage
of Stock Outstanding
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Voting
Percentage
of
Stock
Outstanding
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