EXHIBIT 10.27
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VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Voting Agreement") is entered into effective as
of June 18, 2003, by and between Xxxxx X. Xxxxx ("Xxxxx"), and AspenBio, Inc., a
Colorado corporation (the "Company").
WHEREAS, Xxxxx owns 4,246,757 shares of common stock, no par value per
share of the Company (the "Common Stock");
WHEREAS, Xxxxx understands that the Company needs additional financing and
has agreed to restrictions on the voting and transfer of 2,250,000 shares of the
Common Stock (the "Restricted Shares") in order to facilitate such financing;
and
WHEREAS, for valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Xxxxx and the Company have agreed to enter into this
Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Voting of Restricted Shares
x. Xxxxx agrees to vote the Restricted Shares in the same proportion that
all other shares of the outstanding Common Stock (including the other shares of
Common Stock owned by Xxxxx) are voted at any duly called meeting of the
shareholders of the Company. By way of example, if 30% of the shares of Common
Stock vote in favor of a resolution and 70% of the shares of Common Stock oppose
such resolution, Xxxxx shall vote the Restricted Shares in the same proportion
(i.e., 675,000 in favor and 1,575,000 against). Upon request of the Company,
Xxxxx shall grant a proxy for this purpose to Xxxx Xxxxxxxxxx, or if Xxxx
Xxxxxxxxxx is not then a member of the Company's Board of Directors, is unable
or unwilling to serve, then Xxxxx shall xxxxx such proxy to a person designated
by a majority of the Company's Board of Directors (the "Board").
2. Transfer of Restricted Shares
x. Xxxxx agrees not, directly or indirectly, to sell, offer to sell,
contract to sell, assign, pledge, hypothecate, encumber or otherwise transfer,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, assignment, pledge or other disposition of (collectively, a
"Transfer") any rights with respect to the Restricted Shares except as expressly
provided herein. The foregoing restriction has been expressly agreed to preclude
Xxxxx from engaging in any hedging or other transaction during the term of this
Voting Agreement that is designed to or reasonably expected to lead to or result
in a Transfer of the Restricted Shares. Such prohibited hedging or other
transaction would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale, or grant of any right (including,
without limitation, any put or call option) with respect to the Restricted
Shares or with respect to any security (other than a broad-based market basket
or index) that includes, relates to or derives any significant part of its value
from the Restricted Shares.
x. Xxxxx also agrees and consents to the entry of stop transfer
instructions with the Company's Transfer Agent against the Transfer of the
Restricted Shares except in compliance with the terms and conditions of this
Voting Agreement.
c. In the event any Restricted Shares are subject to any involuntary
transfer, whether by reason of death, bankruptcy or divorce proceedings or
otherwise, the transferee of such Restricted Shares shall take such Restricted
Shares subject to this Voting Agreement. Any purported transfer of any
Restricted Shares that is not in accordance with this Voting Agreement shall be
null and void, and shall not operate to transfer any right, title or interest in
such Restricted Shares to the purported transferee. Xxxxx agrees that the
Company shall not cause or permit the transfer of any Restricted Shares to be
made on the Company's books unless the transfer is permitted by this Voting
Agreement and has been made in accordance with its terms.
3. Representations, Warranties and Covenants of Xxxxx. Xxxxx represents and
warrants to, and agrees with, the Company that:
x. Xxxxx now owns, and will at all times up to the termination of this
Voting Agreement, continue to own, the Restricted Shares free and clear of any
liens or encumbrances, and, except with respect to that certain Shareholder
Agreement by and between Xxxxx, Cambridge Holdings, Ltd. and the Company dated
December 28, 2001, has not, prior to or on the date of this Voting Agreement,
executed or delivered any proxy or entered into any other voting agreement or
similar arrangement other than one which has expired or terminated prior to the
date hereof.
x. Xxxxx has the full power and capacity to execute, deliver and perform
this Voting Agreement, which has been duly executed and delivered by, and
evidences the valid and binding obligation of Xxxxx enforceable in accordance
with its terms.
4. Price Gateways. Notwithstanding anything contained herein to the
contrary, at such time as the closing price of the Common Stock (OTCBB:APNB) on
the OTC Bulletin Board, or such other market as the Common Stock is then
publicly traded, equals or exceeds each price target (the "Gateway Price") set
forth on Schedule A hereto for a period of 20 consecutive trading days, a
corresponding number of the Restricted Shares set forth on Schedule A (the
"Released Shares") shall be released from the restrictions of Sections 1 and 2
herein.
5. Term and Termination. This Agreement shall continue until 15 years from the
date hereof unless earlier terminated due to any of the following events.
a. On October 31, 2003, if the Company has not received gross proceeds of
at least $1 million from the sale of the Company's securities during the period
from June 17, 2003 through October 31, 2003 (the "2003 Private Placement");
b. At such time as the holders of a majority of the then issued and
outstanding shares of the Common Stock vote or consent to the termination of
this Voting Agreement, it being understood that the Restricted Shares or any
other shares of Common Stock owned of record or beneficially by Xxxxx shall not
be included in any vote or consent and shall not be included in a calculation of
the majority of the then issued and outstanding shares;
c. At such time as a majority of the members of the Board vote in favor of
the termination of this Voting Agreement, it being understood that Xxxxx shall
not be allowed to participate in such vote; or
d. At such time as Xxxxx can demonstrate to the reasonable satisfaction of
the Board that all persons who purchased shares in the 2003 Private Placement
have sold all of the shares that such persons purchased in the 2003 Private
Placement.
6. Legend. At the Company's request, Xxxxx shall cause stock certificates
representing the Restricted Shares to be delivered to the Company. The
Company may reissue such certificates to reflect the Restricted Shares and,
in addition to any other required legends on such certificates, imprint or
otherwise place on certificates representing the Restricted Shares the
following restrictive legend (the "Legend"):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A VOTING AGREEMENT DATED JUNE 18, 2003 WHICH PLACES
CERTAIN RESTRICTIONS ON THE VOTING AND TRANSFER OF THE SHARES
REPRESENTED HEREBY. COPY OF SUCH VOTING AGREEMENT IS ON FILE AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS AND WILL BE FURNISHED TO THE
RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST
TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS. NO TRANSFER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE WILL BE EFFECTIVE UNLESS THE
TERMS AND CONDITIONS OF THE VOTING AGREEMENT HAVE BEEN COMPLIED WITH
IN FULL AND NO PERSON MAY REQUEST THE COMPANY TO RECORD THE TRANSFER
OF ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH VOTING
AGREEMENT.
7. Other Rights. Except as provided by this Voting Agreement, Xxxxx shall have
and shall be entitled to exercise the full rights of a holder of capital
stock of the Company with respect to the Restricted Shares.
8. Miscellaneous.
a. Specific Performance. Xxxxx acknowledges that damages would be an
inadequate remedy for any breach of the provisions of this Voting Agreement and
agrees that the obligations of Xxxxx hereunder shall be specifically enforceable
and Xxxxx shall not take any action to impede the Company from seeking to
enforce such right of specific performance. Xxxxx agrees that monetary damages
may not be adequate compensation for any loss incurred by reason of any breach
of his obligations in this Voting Agreement and hereby agrees to waive in any
action for specific performance of any such obligation, the defense that a
remedy at law would be adequate.
b. Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Voting Agreement shall be
in writing and shall be given and shall be deemed to have been given when
personally delivered or three days after being mailed, if mailed by first class
mail, return receipt requested, or one day after being sent by reputable
overnight delivery service, or when receipt is acknowledged, if sent by
confirmed facsimile, telecopy or other electronic transmission device. Notices,
demand and communications to Xxxxx and the Company will, unless another address
is specified in writing, be sent to the address indicated below, except that
notices of change of address shall only be effective upon receipt:
If to Xxxxx:
------------
Xxxxx X. Xxxxx
0000 X. Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
If to the Company:
------------------
AspenBio, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Copies of any notices, demands and communication shall also be sent to:
Xxxx Xxxxxxxxxx
00000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
c. Assignment. This Voting Agreement and all provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except that neither this Voting Agreement nor
any of the rights, interests or obligations hereunder may be assigned by Xxxxx
without the prior written consent of the Company
d. Governing Law. The internal law, without regard for conflicts of law
principals, of the State of Colorado will govern all questions concerning the
construction, validity and interpretation of this Voting Agreement and the
performance of the obligations imposed by this Voting Agreement.
e. Adjustments. The number and kind of Restricted Shares will be
appropriately increased, decreased or changed without further action if the
Company effects a stock split, stock dividend, or reclassification of the Common
Stock. In the event of a merger or a consolidation with another company where
the Company is not the surviving entity, the shares or other consideration of
such other company received in exchange for the Restricted Shares shall
thereafter constitute the "Restricted Shares" pursuant to this Voting Agreement.
f. Amendment; Waiver. This Voting Agreement may not be amended or waived
except, (i) in a writing executed by the party against which such amendment or
waiver is sought to be enforced, and (ii) without the expressed written consent
of the Company. No course of dealing between or among any persons having any
interest in this Voting Agreement will be deemed effective to modify or amend
any part of this Voting Agreement or any rights or obligations of any person
under or by reason of this Voting Agreement.
g. Review by Xxxxx. Xxxxx has had the opportunity to review this Voting
Agreement with legal counsel and other advisors as Xxxxx deemed advisable, prior
to Xxxxx'x execution of this Agreement, and Xxxxx has not relied on any advice
of Xxxxxx Xxxxx LLP.
h. Counterparts. This Voting Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same instrument.
i. Severability. Whenever possible, each provision of this Voting Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Voting Agreement is held to be prohibited by
or invalid under applicable law, such provision will be ineffective only to the
extent of such provision or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Voting Agreement.
j. Complete Agreement. This Voting Agreement contains the complete
agreement between the parties hereto with respect to the matters addressed
herein and supersedes any prior understandings, agreements or representations by
or between the parties, written or oral, which may have related to the subject
matter hereof in any way.
IN WITNESS WHEREOF, the parties hereby have executed this Voting Agreement
as of the date first written above.
ASPENBIO, INC.
By: /s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxx X. Xxxxx
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Name: Xxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx
Title: Member of the Board of Directors
SCHEDULE A
Release Price Released Shares
$ 6.00 450,000
$ 7.00 450,000
$ 8.00 450,000
$ 9.00 450,000
$10.00 450,000
