EXHIBIT 9.1
VOTING AGREEMENT
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THIS VOTING AGREEMENT (this "Agreement") is entered into as of May 17,
2000 by and among Karts International Incorporated, a Nevada corporation (the
"Company"), each of the parties listed on Schedule A attached hereto (the
"Investor"), and each of the parties listed on Schedule B attached hereto and
such other parties as may from time to time and with the consent of the Company
become parties hereto (the parties listed on Schedule B and such other parties
being collectively referred to as the "Principal Shareholders"). This Agreement
shall become effective as of the Closing (as defined therein) of that certain
Series A Preferred Stock Purchase Agreement of even date herewith (the "Purchase
Agreement") by and among the Company and the Investor named therein. The
Agreement relates to the issued and outstanding common stock (the "Shares") of
the Company currently owned or which may, in the future, be acquired by the
Principal Shareholders.
RECITALS
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WHEREAS, the Company and the Investor have entered into the Purchase
Agreement, providing, among other things, for the purchase of shares of the
Company's Series A Preferred Stock, par value $0.001 per share (the "Series A
Preferred Stock");
WHEREAS, the execution and delivery of this Agreement by the Company,
the Investor and the Principal Shareholders is a condition to the closing of the
issuance, sale and purchase of the Series A Preferred Stock pursuant to the
Purchase Agreement; and
WHEREAS, the Principal Shareholders believe it is in their best
interests to provide for the future voting of the shares and desire to set forth
their agreement with respect to voting the Shares.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
VOTING
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1.01 General Agreement. The Principal Shareholders hereby agree to take
all action that may be necessary, and to cause their respective Shares to be
voted in such a manner as to carry out and enforce the terms and intent of this
Agreement.
1.02 Voting. During the term of this Agreement, each Principal
Shareholder agrees it shall vote the Shares in the manner directed by Investor
or its designee (the "Voting Person"), subject to the terms of this Agreement.
In that regard, each Principal Shareholder acknowledges and agrees that his
Shares will be voted in accordance with the terms and conditions of this
Agreement (including, but not limited to, Sections 1.03 and 1.07 of this
Agreement) at all meetings of shareholders of the Company, annual and special,
and whenever action is to be taken by the shareholders of the Company by written
consent or otherwise, at all times during the term of this Agreement.
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1.03 Manner of Voting. The Voting Person shall vote the Shares at all
meetings and on all matters (including but not limited to the election of
directors) upon which the holders of common stock of the Company are entitled to
vote. The Voting Person shall vote the Shares as the Voting Person, in his sole
discretion, may deem in the best interests of the Company. Without limiting the
generality of the foregoing, the Principal Shareholders specifically agree that
the Voting Person shall have the right to vote the Shares by written consent.
1.04 Liability of Voting Person. The Voting Person assumes no
responsibility for any action taken by him or by any agent appointed by him as
herein provided, and the Voting Person, whether or not acting under the advice
of counsel, shall not incur or be under any responsibility or liability as
shareholder, trustee, fiduciary or otherwise, by reason of any error or law, or
of any matter or thing done or suffered or omitted to be done by the Voting
Person under this Agreement, except for his own gross negligence or willful
malfeasance.
1.05. Compensation and Expenses. The Voting Person shall not be
compensated for serving as such.
1.06. Other Rights of Principal Shareholders. Except as contemplated by
this Agreement, each Principal Shareholder shall exercise the full rights of a
Principal Shareholder with respect to the Shares registered in his name, subject
to any applicable laws or any other written agreements entered into by such
Principal Shareholder.
1.07. Irrevocable Proxy. To enable the Voting Person to exercise the
power to vote the Shares as provided herein, each Principal Shareholder agrees
to execute and deliver to the Voting Person simultaneously with the execution of
this Agreement an irrevocable proxy in the form attached hereto as Schedule
1.07. THE PROXY GRANTED PURSUANT TO THIS AGREEMENT BY EACH OF THE SHAREHOLDERS
TO THE VOTING PERSON IS IRREVOCABLE AND SHALL BE DEEMED COUPLED WITH AN INTEREST
AND SHALL BE VALID DURING THE ENTIRE TERM OF THIS AGREEMENT, WHICH SHALL BE MORE
THAN ELEVEN (11) MONTHS FROM THE DATE OF THIS AGREEMENT.
ARTICLE II
LEGEND ON CERTIFICATES
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The parties hereto agree that all certificates representing all Shares
which at any time are subject to the provisions of this Agreement shall have
conspicuously endorsed upon them a legend substantially to the following effect:
The shares of stock represented by this certificate are subject to a
Voting Agreement dated as of May ___, 2000, a copy of which is on file
at the principal office of the Company.
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ARTICLE III
REMEDIES
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3.01. Defenses. Each Principal Shareholder agrees and acknowledges that
each restriction, covenant and agreement set forth herein constitutes a separate
agreement independently supported by good and adequate consideration. The
existence of any claim or cause of action of any Principal Shareholder against
any other Principal Shareholder or Investor, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
other Principal Shareholders or Investor of the restrictions, covenants and
agreements contained in this Agreement.
3.02. Specific Enforcement. Each Principal Shareholder acknowledges and
recognizes that a violation or threatened violation by him of the restrictions,
agreements or covenants contained in this Agreement will cause such damage to
the other Principal Shareholders and Investor as will be irreparable and that
the other Principal Shareholders and Investor will have no adequate remedy at
law for such violation or threatened violation. Accordingly, each party hereto
agrees that Investor shall be entitled as a matter of right to seek and obtain
an injunction from any court of competent jurisdiction, restraining any further
violation or threatened violation of such restrictions, agreements or covenants
and granting mandatory relief compelling such offender to carry out his
obligations hereunder. Such right to injunctive and mandatory relief shall be
cumulative and in addition to whatever other remedies the other Principal
Shareholders or Investor may have at law or in equity.
3.03. Severability and Reformation. The parties hereto intend all
provisions of this Agreement to be enforced to the fullest extent permitted by
law. Accordingly, should a court of competent jurisdiction determine that the
scope of any provision is too broad to be enforced as written, the parties
intend that the court should reform the provision to such narrower scope as it
determines to be enforceable. If, however, any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future law, such
provision shall be fully severable, and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision were never a
part hereof, and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance.
3.04. Attorneys' Fees. If any legal action is brought by any party
hereto to enforce the terms and conditions of this Agreement, it is expressly
agreed that the party in whose favor a final judgment is entered shall be
entitled, in addition to any other relief which may be awarded, to recover from
the other party or parties its reasonable attorneys' fees, together with such
prevailing party's other costs and reasonable and necessary expenses incurred in
connection with such litigation.
ARTICLE IV
TERM
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This Agreement shall terminate on May 1, 2015.
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ARTICLE V
MISCELLANEOUS PROVISIONS
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5.01. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt) to the parties
at the address for such party set forth below (or at such other address for a
party as shall be specified by like notice):
(i) in the case of the Company:
Karts International Incorporated
P. O. Box 695
62204 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Fax Number: (000) 000-0000
(ii) in the case of an Investor, to the address listed for
such Investor on Schedule A ---------- hereto; and
(iii) in the case of a Principal Shareholder, to the address
listed for such Principal Shareholder on Schedule B hereto.
Notice given by personal delivery, courier service or mail shall be
effective upon actual receipt. Notice given by telecopier shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received during the
recipient's normal business hours. All notices by telecopier shall be confirmed
promptly after transmission in writing by certified mail, commercial delivery
service or personal delivery. Any party may change any address to which notice
is to be given to it by giving notice as provided above of such change of
address.
The above addresses may be changed only by giving written notice of
such change of address to other Principal Shareholders.
5.02. Construction. The use of the singular number shall include the
plural and the plural number shall include the singular wherever appropriate.
5.03. Gender. The use of any gender in this Agreement shall be deemed
to be or include the other gender wherever appropriate.
5.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA.
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5.05. Inurement, Transfers. The provisions of this Agreement shall
inure to the benefit of, and shall be binding upon, the assigns, successors in
interest, personal representatives, estates, heirs and legatees of each of the
parties hereto. To the extent applicable, each Principal Shareholder agrees to
insert in his will a direction and an authorization to his executor to fulfill
and comply with the provisions hereof. Any transferring Principal Shareholder
shall cause any transferee of any Shares to execute a consent, in the form
attached hereto as Schedule 5.05, agreeing to be bound by the provisions of this
Agreement.
5.06. Amendment. This Agreement may only be amended by written consent
of all the parties to this Agreement at the time of such amendment.
5.07. Headings. The headings used in this Agreement are used for
administrative purposes only and do not constitute substantive matters to be
considered in construing the terms of this Agreement.
5.08. Spouses as Parties. The parties hereto agree that, if applicable,
the spouse of each Principal Shareholder shall be deemed to be a party to this
Agreement, shall be bound by all of terms and conditions hereof and shall so
signify by executing this Agreement.
5.09. Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
5.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original hereof, but all of
which shall constitute one and the same document.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Xxxxx.xxx, Inc.
Voting Agreement on the date first indicated above.
COMPANY:
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KARTS INTERNATIONAL CORPORATION
By:
Xxxxxxx Xxxxxxx
President and CEO
INVESTOR:
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THE XXXXXXXXX FOUNDATION
By:
Name:
Title:
[SIGNATURE PAGE TO VOTING AGREEMENT]
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PRINCIPAL SHAREHOLDERS:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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Schedule A
Schedule of Investor
The Xxxxxxxxx Foundation
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
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Schedule B
Schedule of Principal Shareholders
Name Address
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Xxxxxxx Xxxxxxx [To Come]
Xxxxxxx X. Xxxxx [To Come]
Halter Financial Group, Inc. 00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
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PROXY
BY EXECUTION HEREOF, and in accordance with the terms of that certain
Voting Agreement dated May ___, 2000, by and among Karts International
Incorporated, a Nevada corporation (the "Company"), each of the parties listed
on Schedule A attached thereto (the "Investor"), and each of the parties listed
on Schedule B attached thereto and such other parties as may from time to time
and with the consent of the Company become parties hereto, the undersigned
shareholder (the "Shareholder") of the Company hereby constitutes and appoints
the Voting Person as defined in the Voting Agreement, being The Xxxxxxxxx
Foundation, as Attorney and Proxy of the Shareholder, to exercise the right to
vote or consent to shareholder action with respect to all stock owned by the
Shareholder, at any and all meetings of the shareholders, of the Company or
whenever action needs to be taken by the shareholders, by written consent or
otherwise, upon any business or matter that may properly come before any such
meeting or may properly be determined by a written consent of or otherwise by
the shareholders of the Company. THE PROXY GRANTED HEREBY TO THE VOTING PERSON
IS IRREVOCABLE AND SHALL BE DEEMED COUPLED WITH AN INTEREST, AND SHALL BE VALID
DURING THE ENTIRE TERM OF THE VOTING AGREEMENT, WHICH SHALL IN ANY EVENT BE MORE
THAN ELEVEN MONTHS FROM THE DATE OF EXECUTION OF SUCH VOTING AGREEMENT. The
proxy granted herein may not be revoked by the Shareholder except upon
termination of the Voting Agreement as provided in Article IV thereof.
Dated as of May ___, 2000.
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CONSENT
The undersigned, having acquired shares of Common Stock, no par value,
of Karts International Incorporated (the "Company"), hereby agrees to be bound
by the terms and conditions of the Voting Agreement, dated as of May _, 2000,
among the Shareholders therein named, the form of which is attached hereto, as
if the undersigned had been a party to, and a "Shareholder" as defined in, such
Voting Agreement as of the date thereof.
Name:
Signature:
Address:
No. of Shares:
Spouse's Name:
Spouse's Signature:
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