VOTING AGREEMENT
Exhibit
10.2
THIS VOTING AGREEMENT dated as
of October 2, 2009 (the “Effective
Date” and this "Agreement"),
is made by and between Archetype Partners, LLC (“Purchaser”)
and Xxxxx X. Xxxx (“Xxxx”)
and XxxxXxxx XxXxxxx (“XxXxxxx”,
and collectively with Loev, the “Shareholders”). All
contracting entities are each referred to as a “Party”
and collectively as the “Parties”
to the Agreement as such terms are used herein.
W I T N E S S E T H:
WHEREAS, simultaneously with
the execution of this Agreement, pursuant to the terms of that certain Stock
Purchase Agreement dated as of the date hereof (the “Purchase
Agreement”) between the Shareholders and the Purchaser, the Shareholders
are entitled to retain 664,000 shares of the common stock, par value $0.001 per
share (the “Retained
Shares”) of RX Scripted, Inc., a Nevada corporation (the “Company”);
WHEREAS, the Shareholders are
entitled to receive additional shares of the Company’s common stock following a
transaction by Purchaser involving the Company (as described in greater detail
in the Purchase Agreement, each a “Transaction”),
such that each Shareholder will, together with such Retained Shares held by each
Shareholder, hold at a minimum, 1% of the Company’s then outstanding voting
shares following such Transaction (together with the Retained Shares, the “Common
Stock”); and
WHEREAS, the Company and each
of the Shareholders desire to establish in this Agreement certain terms and
conditions regarding the voting and transfer rights associated with the Common
Stock.
NOW, THEREFORE, in
consideration of the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Seller and Purchaser do hereby agree as follows:
1. Term. The term (the
“Term”)
of this Agreement shall commence on the date Effective Date and shall continue
until the first anniversary of the Effective Date of this Agreement, or until
terminated pursuant to Section 5, below.
2. Stock. The shares of
Company Common Stock owned by the Shareholders from time to time during the Term
of this Agreement, shall be referred to herein as the "Stock". Any
additional shares of Common Stock or other voting securities, or the voting
rights relating thereto, of the Company that may be owned, held or subsequently
acquired in any manner, legally or beneficially, directly or indirectly, of
record or otherwise, by the Shareholders at any time during the Term of this
Agreement as a result of the ownership of the Stock that is referred to in this
Agreement whether issued as a result of any Transaction, incident to any stock
split, stock dividend, increase in capitalization, recapitalization, merger,
consolidation, reorganization, or other transaction, shall be included within
the term "Stock"
as used herein and shall be subject to the terms of this
Agreement.
3. Voting.
The Shareholders agree that they will vote the Shares in the matter requested by
or directed by the Purchaser from time to time in writing to the Shareholders
(the “Voting
Rights”) during the Term of this Agreement.
4. Transfer
of Stock. The Shareholders shall be prohibited from selling,
pledging, hypothecating, assigning or otherwise transferring (each a "Transfer")
any Stock other than pursuant to a Transfer to an Affiliate or Associate of such
Shareholder during the Term of this Agreement, provided that such Affiliate or
Associate becomes a party to, and agrees to be bound by, this Agreement
(collectively the “Transfer
Restrictions”. “Affiliate”
shall have the meaning given it in Rule 12b-2 under the Securities Exchange Act
of 1934, as amended (the “Exchange
Act”). “Associate”
shall have the meaning given it in Rule 12b-2 under the Exchange
Act.
5. Termination
of Voting Rights and Transfer Restrictions. In the event that
the Purchaser is in breach of the terms and conditions of the Purchase
Agreement, the Shareholders shall provide the Purchaser written notice of such
breach and in the event that the breach is not cured within five (5) Business
Days of the date written notice of the breach is received by the Purchaser, this
Agreement shall terminate, the Voting Rights and Transfer Restrictions shall
automatically expire and be of no effect. “Business
Day” means a day other than (i) a Saturday, (ii) a Sunday or (iii) a day
on which commercial banks in the City of Houston, Texas are authorized or
required to be closed for business.
6. Reservation
of Rights. All other rights and privileges of the Stock other
than as provided above shall be reserved to and retained by
Shareholders.
7. Specific
Performance. Each Party hereto acknowledges that a remedy at
law for any breach or attempted breach of terms and provisions of this Agreement
may be inadequate, and such Parties therefore agree that the non-breaching party
shall be entitled to specific performance and injunctive and other equitable
relief in the event of any such breach or attempted breach.
8. Successors
and Assigns. This Agreement
shall be binding upon Shareholders and its respective heirs, legal
representatives, successors and assigns.
9. Waiver. The wavier by
either party to this Agreement of a breach or violation or any provision hereof
shall not operate as or be construed to be a waiver of any subsequent breach
hereof.
10. Governing
Law. This Agreement
shall be interpreted in accordance with the laws of the State of
Texas. In the event of a dispute concerning this Agreement, the
parties agree that venue lies in a court of competent jurisdiction in Xxxxxx
County, Texas.
11. Headings;
Gender. The paragraph
headings contained in this Agreement are for convenience only, and shall in no
manner be construed as part of this Agreement. All references in this
Agreement as to gender shall be interpreted in the applicable gender of the
parties.
12. Severability. In the event any
one or more of the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
13. Notices. Any
and all notices, requests or other communications hereunder shall be given in
writing and delivered by: (a) regular, overnight or registered or certified mail
(return receipt requested), with first class postage prepaid; (b) hand delivery;
(c) facsimile transmission; or (d) overnight courier service, to the parties at
the following addresses or facsimile numbers:
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(i)
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if
to the Purchaser, addressed to:
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Archetype
Partners, LLC
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Xxxx
Xxxxxxxxx Xxxxxxx
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Xxxxx
0000
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Xxxxxxx,
XX 00000
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| Attention: R. Xxxxx Xxxxxxxxxxx |
with a
copy to:
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Xxxx
Xxxxxxxxx Xxxxxxx
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Xxxxx
0000
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Xxxxxxx,
XX 00000
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Attention:
President
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(ii)
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if
to the Shareholders, addressed to:
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Xxxxx
X. Xxxx and XxxxXxxx XxXxxxx
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c/o
The Loev Law Firm, PC
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxxx 00000
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000) 000-0000
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with a
copy to:
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Xxxxx
X. Xxxx
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The
Loev Law Firm, PC
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0000
Xxxx Xxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
XX 00000
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000) 000-0000
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email:
xxxxx@xxxxxxx.xxx
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or at
such other address or number as shall be designated by either of the parties in
a notice to the other party given in accordance with this
Section. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: (A) in the case of a
notice sent by regular or registered or certified mail, three business days
after it is duly deposited in the mails; (B) in the case of a notice delivered
by hand, when personally delivered; (C) in the case of a notice sent by
facsimile, upon transmission subject to telephone confirmation of receipt; and
(D) in the case of a notice sent by overnight mail or overnight courier service,
the next business day after such notice is mailed or delivered to such courier,
in each case given or addressed as aforesaid.
14. Amendment. No modification,
amendment, addition to, or termination of this Agreement, nor waiver of any of
its provisions, shall be valid or enforceable unless in writing and singed by
all the parties hereto.
15. Effect of
Facsimile and Photocopied Signatures. This Agreement may be executed in
several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts. A copy of this
Agreement signed by one Party and faxed to another Party shall be deemed to have
been executed and delivered by the signing Party as though an
original. A photocopy of this Agreement shall be effective as an
original for all purposes.
16. Extended
Meanings. In this Agreement words importing the singular number include
the plural and vice versa; words importing the masculine gender include the
feminine and neuter genders. The word “person”
includes an individual, body corporate, partnership, trustee or trust or
unincorporated association, executor, administrator or legal
representative.
17. Construction.
Each Party acknowledges that its legal counsel participated in the preparation
of this Agreement and, therefore, stipulates that the rule of construction that
ambiguities are to be resolved against the drafting Party shall not be applied
in the interpretation of this Agreement to favor any Party against the other. In
this Agreement, the word “include”,
“includes”,
“including”
and “such
as” are to be construed as if they were immediately followed by the
words, without limitation.
18. Entire
Agreement. This Agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understanding or
written or oral agreements between the parties respecting the subject matter
hereof.
[Remainder
of page left intentionally blank. Signature page
follows.]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the Effective Date
set forth above.
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The
“Purchaser”
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Archetype
Partners, LLC
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By:
/s/ R. Xxxxx
Xxxxxxxxxxx
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Name:
R. Xxxxx
Xxxxxxxxxxx
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Title:
Principal
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“Shareholders”
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/s/
Xxxxx X. Xxxx
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Xxxxx
X. Xxxx
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/s/
XxxxXxxx XxXxxxx
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XxxxXxxx
XxXxxxx
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