VOTING AGREEMENT
Exhibit
9.1
THIS
VOTING AGREEMENT (this “Agreement”), is made and entered
into as of this 10th day of April, 2020, by and among Indus
Holdings, Inc., a British Columbia corporation (the
“Company”), each
holder of a senior secured convertible debenture (a
“Debenture”)
that was issued as part of a series of senior secured convertible
debentures (collectively, the “Debentures”), issued pursuant to
the Purchase Agreement (as defined below) and as listed on
Schedule A
(together with any subsequent investors, or transferees, who become
parties hereto as “Investors” pursuant to Subsections 4.1 or 4.2 below, the
“Investors”) and
Xxxxxx Xxxxxxx (together with an person who becomes his successor
pursuant to Subsection
4.2 below, “Xxxxxxx”) (together with the
Investors, the “Voting
Parties”).
RECITALS
A. Concurrently
with the execution of this Agreement, the Company is issuing the
Debentures to Investors pursuant to that certain Debenture and
Warrant Purchase Agreement, dated on or about the date hereof, by
and among the Company and the Investors (the “Purchase Agreement”), and in
connection with such issuance the parties desire to provide the
Investors with the right, among other rights, to designate the
election of certain members of the board of directors of the
Company (the “Board”) in accordance with the
terms of this Agreement.
X. Xxxxxxx,
the holder of the Company’s issued and outstanding Super
Voting Shares (the “Xxxxxxx
Shares”), has agreed to vote the Xxxxxxx Shares as
directed by a majority of the Board. Such agreement is being
modified in connection with Xxxxxxx’x entry into this
Agreement to permit Xxxxxxx to vote the Xxxxxxx Shares in
accordance with the terms hereof (as so modified, the
“Xxxxxxx
Agreement”).
NOW,
THEREFORE, the parties agree as follows:
1.1 Size
of the Board. Each Voting Party
agrees there will be seven (7) directors and that it shall take all
necessary action within its control to cause the size of the Board
to be fixed at seven (7) directors. For purposes of this Agreement,
the term “Shares” shall mean and include any
securities of the Company that the holders of which are entitled to
vote for members of the Board, including without limitation, the
Xxxxxxx Shares, by whatever name called, now owned or subsequently
acquired by a Voting Party, however acquired, whether through stock
splits, stock dividends, reclassifications, recapitalizations,
similar events or otherwise.
1.2 Board
Composition. Each Voting Party
agrees to vote, or cause to be voted, all Shares owned by such
Voting Party, or over which such Voting Party has voting control,
from time to time and at all times, at each annual or special
meeting of the shareholders of the Company at which an election of
directors is held or pursuant to any written consent of the
shareholders of the Company, subject to Section 3(a), to elect the
following persons and any persons designated for election pursuant
to Section 1.3 or
Section
1.4:
(a) Three (3) persons
designated (“Investor
Directors”) by the Investors holding a majority of the
equity securities of the Company issued or issuable upon conversion
of the Debentures (the “Required Investors”), who shall
initially be Xxxxxx Xxxxx, Xxxxx Xxxxx and Xxxxx
XxXxxxx;
(b) Three (3) persons
designated by a majority of the Indus Directors or, in the event no
Indus Director is then serving as a member of the Board, Xxxxxxx.
As used herein, “Indus
Directors” means (i) members of the Board serving in
such capacity as of immediately prior to the initial closing of the
transactions contemplated by the Purchase Agreement, (ii) directors
designated by such directors and/or other directors designated
pursuant to this Section 1.2(b) and (iii) directors designated by
Xxxxxx Xxxxxxx pursuant to the immediately preceding sentence;
and
(c) One (1) person
designated by mutual agreement of (i) a majority of the directors
designated pursuant to Section 1.2(a) and (ii) a majority of the
directors designated pursuant to Section 1.2(b).
1.3 Failure
to Designate a Board Member. In the absence of
any designation from the Persons or groups with the right to
designate a director as specified above, the director previously
designated by them and then serving shall be redesignated if still
eligible and willing to serve as provided herein and otherwise,
such Board seat shall remain vacant.
1.4 Removal
of Board Members. Each Voting Party
also agrees to vote, or cause to be voted, all Shares owned by such
Voting Party, or over which such Voting Party has voting control,
from time to time and at all times, and to take all necessary
actions within such Voting Party’s control to ensure
that:
(a) no director elected
pursuant to Subsections
1.2 of this Agreement is removed from office unless such
removal is directed or approved by the affirmative vote of the
Person(s) entitled under Subsection 1.2 to
designate that director;
(b) any vacancies
created by the resignation, removal or death of a director elected
pursuant to Subsections
1.2 shall be filled by the Person(s) entitled to designate
or approve such director pursuant to the provisions of this
Section 1;
and
(c) upon the request of
any party entitled to designate a director as provided in
Subsection 1.2
to remove such director, such director shall be
removed.
All
Voting Parties agree to execute any written consents required to
perform the obligations of this Section 1, and the Company
agrees at the request of any Person or group entitled to designate
directors to call a special meeting of shareholders for the purpose
of electing directors.
1.5 Subsidiary
Board Composition. Each Voting Party
agrees to vote, or cause to be voted, all Shares owned by such
Voting Party, or over which such Voting Party has voting control,
from time to time and at all times, at each annual or special
meeting of the stockholders of the Company at which an election of
directors is held or pursuant to any written consent of the
stockholders of the Company, subject to Section 3(a), to cause the
composition of the board of directors of each subsidiary of the
Company to be composed of the directors elected to and serving on
the Board in accordance with Sections 1.2 through
Section
1.4.
1.6 Committee
Composition. Each Voting Party
agrees to take all necessary action within its control to cause the
following committees of the Board to be maintained (and to cause
any corresponding committees of the board of directors of any
subsidiary of the Company to be maintained in the same
manner):
(a) an audit committee
consisting of an equal number of non-employee Investor Directors
and Indus Directors;
(b) a compensation
committee consisting of an equal number of non-employee Investor
Directors and Indus Directors; and
(c) a corporate
governance committee consisting of an equal number of non-employee
Investor Directors and Indus Directors.
1.7 Special
Committee Processes. Each Investor
agrees that matters involving any transaction between the Company
or any of its subsidiaries, on the one hand, and any Investor or
Affiliate of an Investor, on the other (including any determination
by the Company to repay or refinance the Debentures (as defined in
the Purchase Agreement), to seek any modification, waiver or
termination with respect to any of the Transaction Documents (as
defined in the Purchase Agreement), or to increase the maximum
offering amount under the Purchase Agreement), shall not be
consummated unless approved by a majority of the members of a
special committee of the Board constituted in accordance with this
Section 1.7 (the
“Special
Committee”). The Special Committee shall consist of
three directors who are not Investor Directors (or such less number
of such directors who are then serving) and who are not interested
in the matter to be considered. The parties agree that,
notwithstanding any to the contrary under the Company’s
charter documents or applicable law, the Special Committee’s
determination shall be final and not subject to review, revocation
or alteration by the full Board and that the Board shall not have
the right to override a decision made by the Special Committee. The
Special Committee shall have the right to, and the Company shall
use its best efforts to make available the resources to, engage
independent legal counsel and an independent financial advisor (but
shall not be obligated to do so). For a period of three years from
the date hereof, each Investor agrees not to, and to cause its
Affiliates not to, without the consent of the Special Committee,
unless the Special Committee shall have publicly announced, or
authorized the Company to publicly announce, its support for or
recommendation to shareholders of a business combination
transaction with a party other than an Investor or an Affiliate of
an Investor, make any proposal for a “going private”
transaction or other business combination between the Company or
any of its subsidiaries, on the one hand, and any Investor(s) and
their Affiliates, on the other, or assist any other Person with
respect to the foregoing.
1.8 No
Liability for Election of Recommended Directors. No Voting Party,
nor any Affiliate of any Voting Party, shall have any liability as
a result of designating a person for election as a director for any
act or omission by such designated person in his or her capacity as
a director of the Company, nor shall any Voting Party have any
liability as a result of voting for any such designee in accordance
with the provisions of this Agreement. For purposes of this
Agreement, an individual, firm, corporation, partnership,
association, limited liability company, trust or any other entity
(collectively, a “Person”) shall be deemed an
“Affiliate” of
another Person who, directly or indirectly, controls, is controlled
by or is under common control with such Person, including, without
limitation, any general partner, managing member, officer, director
or trustee of such Person, or any venture capital fund or
registered investment company now or hereafter existing that is
controlled by one or more general partners, managing members or
investment advisers of, or shares the same management company or
investment adviser with, such Person.
1.9 No
“Bad Actor” Designees. Each Person with
the right to designate or participate in the designation of a
director as specified above hereby represents and warrants to the
Company that, to such Person’s knowledge, none of the
“bad actor” disqualifying events described in Rule
506(d)(1)(i)-(viii) under the Securities Act of 1933, as amended
(the “Securities
Act”) (each, a “Disqualification Event”), is
applicable to such Person’s initial designee named above
except, if applicable, for a Disqualification Event as to which
Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Any director
designee to whom any Disqualification Event is applicable, except
for a Disqualification Event to which Rule 506(d)(2)(ii) or (iii)
or (d)(3) is applicable, is hereinafter referred to as a
“Disqualified Designee”. Each Person with the right to
designate or participate in the designation of a director as
specified above hereby covenants and agrees (A) not to designate or
participate in the designation of any director designee who, to
such Person’s knowledge, is a Disqualified Designee and (B)
that in the event such Person becomes aware that any individual
previously designated by any such Person is or has become a
Disqualified Designee or the Canadian Securities Exchange objects
to such Person being a director of the Company, such Person shall
as promptly as practicable take such actions as are necessary to
remove such Disqualified Designee from the Board and designate a
replacement designee who is not a Disqualified
Designee.
2. Remedies.
2.1 Covenants
of the Company. The Company
agrees to use its best efforts, within the requirements of
applicable law, to ensure that the rights granted under this
Agreement are effective and that the parties enjoy the benefits of
this Agreement. Such actions include, without limitation, the use
of the Company’s best efforts to cause the nomination and
election of the directors as provided in this
Agreement.
2.2 Specific
Enforcement. Each party
acknowledges and agrees that each party hereto will be irreparably
damaged in the event any of the provisions of this Agreement are
not performed by the parties in accordance with their specific
terms or are otherwise breached. Accordingly, it is agreed that
each of the Company and the Investors shall be entitled to an
injunction to prevent breaches of this Agreement, and to specific
enforcement of this Agreement and its terms and provisions in any
action instituted in any court of the Province of British
Columbia.
2.3 Irrevocable
Proxy and Power of Attorney. Each party to
this Agreement hereby constitutes and appoints as the proxies of
the party and hereby grants a power of attorney to each of Xxxxxxx
and Xxxxxx Xxxxx, and hereby authorizes each of them to represent
and vote, if and only if another party (i) fails to vote, or
(ii) attempts to vote (whether by proxy, in person or by
written consent), in a manner which is inconsistent with the terms
of Section 1 of
this Agreement, any of such party’s Shares in favor of the
election of persons as members of the Board determined pursuant to
and in accordance with the terms and provisions of this Agreement.
Each of the proxy and power of attorney granted pursuant to this
Section 2.3 is
given in consideration of the agreements and covenants of the
Company and the parties in connection with the transactions
contemplated by this Agreement and, as such, each is coupled with
an interest and shall be irrevocable unless and until this
Agreement terminates or expires pursuant to Section 4.8 hereof. Each party
hereto hereby revokes any and all previous proxies or powers of
attorney with respect to the Shares and shall not hereafter, unless
and until this Agreement terminates or expires pursuant to
Section 4.8 hereof,
purport to grant any other proxy or power of attorney with respect
to any of the Shares, deposit any of the Shares into a voting trust
or enter into any agreement (other than this Agreement and the
Xxxxxxx Agreement), arrangement or understanding with any person,
directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of any of the Shares, in
each case, with respect to any of the matters set forth
herein.
2.4 Remedies
Cumulative. All remedies,
either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
3. “Bad Actor”
Matters.
3.1 Definitions.
For purposes of this Agreement:
(a) “Company Covered Person” means,
with respect to the Company as an “issuer” for purposes
of Rule 506 promulgated under the Securities Act, any Person listed
in the first paragraph of Rule 506(d)(1).
(b) “Disqualified Designee” means any
director designee to whom any Disqualification Event is applicable,
except for a Disqualification Event as to which Rule 506(d)(2)(ii)
or (iii) or (d)(3) is applicable or who is not eligible to serve as
a director under the Business
Corporations Act (British Columbia).
(c) “Disqualification Event” means a
“bad actor” disqualifying event described in Rule
506(d)(1)(i)-(viii) promulgated under the Securities
Act.
(d) “Rule 506(d) Related Party” means,
with respect to any Person, any other Person that is a beneficial
owner of such first Person’s securities for purposes of Rule
506(d) under the Securities Act.
3.2 Representations.
(a)
Each Person with the right to designate or participate in the
designation of a director pursuant to this Agreement hereby
represents that (i) such Person has exercised reasonable care to
determine whether any Disqualification Event is applicable to such
Person, any director designee designated by such Person pursuant to
this Agreement or any of such Person’s Rule 506(d) Related
Parties, except, if applicable, for a Disqualification Event as to
which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable and (ii)
no Disqualification Event is applicable to such Person, any Board
member designated by such Person pursuant to this Agreement or any
of such Person’s Rule 506(d) Related Parties, except, if
applicable, for a Disqualification Event as to which Rule
506(d)(2)(ii) or (iii) or (d)(3) is applicable. Notwithstanding
anything to the contrary in this Agreement, each Investor makes no
representation regarding any Person that may be deemed to be a
beneficial owner of the Company’s voting equity securities
held by such Investor solely by virtue of that Person being or
becoming a party to (x) this Agreement, as may be subsequently
amended, or (y) any other contract or written agreement to which
the Company and such Investor are parties regarding (1) the voting
power, which includes the power to vote or to direct the voting of,
such security; and/or (2) the investment power, which includes the
power to dispose, or to direct the disposition of, such
security.
(b) The Company hereby
represents and warrants to the Investors that no Disqualification
Event is applicable to the Company or, to the Company’s
knowledge, any Company Covered Person, except for a
Disqualification Event as to which Rule 506(d)(2)(ii–iv) or
(d)(3) is applicable.
3.3 Covenants.
(a) Each Person with
the right to designate or participate in the designation of a
director pursuant to this Agreement covenants and agrees (i) not to
designate or participate in the designation of any director
designee who, to such Person’s knowledge, is a Disqualified
Designee, (ii) to exercise reasonable care to determine whether any
director designee designated by such person is a Disqualified
Designee, (iii) that in the event such Person becomes aware that
any individual previously designated by any such Person is or has
become a Disqualified Designee or that the Canadian Securities
Exchange objects to such Person from being a director of the
Company, such Person shall as promptly as practicable take such
actions as are necessary to remove such Disqualified Designee from
the Board and designate a replacement designee who is not a
Disqualified Designee, and (iv) to notify the Company promptly in
writing in the event a Disqualification Event becomes applicable to
such Person or any of its Rule 506(d) Related Parties, or, to such
Person’s knowledge, to such Person’s initial designee
named in Section 1,
except, if applicable, for a Disqualification Event as to which
Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable.
(b) For so long as this
Agreement remains in effect:
(i) As soon as
practicable, but in any event within thirty (30) days after the
date of this Agreement and the beginning of each fiscal year
thereafter, the Company shall adopt a comprehensive expense budget
forecasting the Company’s expenses on a month-to-month basis
for the remainder of the 2020 fiscal year and each such upcoming
fiscal year thereafter (the “Budget”).
(ii) without
the approval of the Board, including at least one Investor Director
(provided an Investor Director is then serving), the Company shall
not (A) hire, fire or materially change the compensation of any
executive officer; (B) issue incentive equity compensation in the
Company or any subsidiary to any employee, consultant, officer or
director, including, without limitation, pursuant to an equity
incentive plan or (C) deviate by more than 10% in the aggregate or
with respect to any particular item set forth in the
Budget.
4. Miscellaneous.
4.1 Additional
Parties. Notwithstanding
anything to the contrary contained herein, if the Company issues
additional Debentures after the date hereof, as a condition to the
issuance of such Debentures the Company shall require that any
purchaser of such Debentures become a party to this Agreement by
executing and delivering a counterpart signature page hereto
agreeing to be bound by and subject to the terms of this Agreement
as an Investor hereunder. In either event, each such person shall
thereafter be deemed an Investor for all purposes under this
Agreement.
4.2 Transfers.
Each Successor Transferee of any Debentures, Warrants (as defined
in the Purchase Agreement) or Shares shall be subject to the terms
hereof, and, as a condition precedent to the Company’s
recognition of any transfer of Debentures, Warrants or Shares to a
Successor Transferee, each Successor Transferee shall agree in
writing to be subject to each of the terms of this Agreement by
executing and delivering a counterpart signature page hereto. Upon
the execution and delivery of a counterpart signature page by any
Successor Transferee, such Successor Transferee shall be deemed to
be a party hereto as if such Successor Transferee were the
transferor and such Successor Transferee’s signature appeared
on the signature pages of this Agreement and, if a Successor
Transferee of an Investor, shall be deemed to be an Investor. Each
certificate instrument, or book entry representing the Debentures,
Warrants or Shares subject to this Agreement if issued on or after
the date of this Agreement shall be notated by the Company with the
legend set forth in Subsection 4.4. As used herein,
“Successor
Transferee” means any Affiliate of a transferor, in
the case of an individual transferor, means any family member or
estate planning vehicle of such transferor, and in the case of
Xxxxxxx, means any Person approved by the Company pursuant to
Section 27.2(7) of the Company’s Articles, which approval
shall be granted or withheld by the Company solely as directed by a
majority of the Indus Directors. Each Voting Party shall use its
best efforts to cause its Successor Transferees to comply with the
terms of this Agreement with respect to all Shares held by such
Successor Transferee, however acquired. For the avoidance of doubt,
an acquiror of Shares in an unsolicited brokerage transaction on
the Canadian Securities Exchanges or another stock exchange on
which such Shares are listed will not be deemed to be a Successor
Transferee.
4.3 Successors
and Assigns. Subject to
Section 4.2, the
terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this
Agreement.
4.4 Governing
Law. This Agreement
shall be governed by the internal law of the Province of British
Columbia, without regard to conflict of law principles that would
result in the application of any law other than the law of the
Province of British Columbia and the Parties irrevocably attorn to
the non-exclusive jurisdiction of the courts of the Province of
British Columbia.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN ANY OF THE
PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THIS AGREEMENT,
THE OTHER TRANSACTION DOCUMENTS, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY OR THE RELATIONSHIPS ESTABLISHED AMONG THE
PARTIES HEREUNDER OR THEREUNDER.
4.5 Counterparts.
This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Counterparts
may be delivered via facsimile, electronic mail (including pdf or
any electronic signature complying with the U.S. federal ESIGN Act
of 2000, e.g.,
xxx.xxxxxxxx.xxx) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
4.6 Titles
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
4.7 Notices.
All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given
upon the earlier of actual receipt or (a) personal delivery to the
party to be notified, (b) when sent, if sent by electronic mail or
facsimile during normal business hours of the recipient, and if not
sent during normal business hours, then on the recipient’s
next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) business day after the business day of
deposit with a nationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written
verification of receipt. All communications shall be sent to the
respective parties at their address as set forth on Schedule A hereto, or to such
email address, facsimile number or address as subsequently modified
by written notice given in accordance with this Subsection 4.7. If notice is
given to the Company, it shall be sent to 00 Xxxxx Xxx Xxxxxx,
Xxxxxxx, XX 00000, xxxxx@xxxxxxxxxxxxxx.xxx (Attention: Xxxxx
Xxxx); and a copy (which shall not constitute notice) shall also be
sent to Akerman LLP, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, xxxxxxx.xxxxxxxxxx@xxxxxxx.xxx
(Attention: Xxxxxxx X. Xxxxxxxxxx).
4.8 Consent
Required to Amend, Modify, Terminate or Waive. This Agreement
may be amended, modified or terminated and the observance of any
term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written instrument executed
by (a) the Company; (b) in the case of Section 1.7, a majority of the
Indus Directors; and (c) Investors beneficially owning (within the
meaning of Section 13(d) under the Securities Exchange Act and the
rules and regulations thereunder) at least 50% of the equity
securities of the Company (adjusted for splits, reverse splits,
recombinations and other similar events) beneficial ownership of
which was sold pursuant to the Purchase Agreement. Notwithstanding
the foregoing:
(a) this Agreement may
not be amended, modified or terminated and the observance of any
term of this Agreement may not be waived with respect to any
Investor without the written consent of such Investor unless such
amendment, modification, termination or waiver applies to all
Investors, as the case may be, in the same fashion;
(b) subject to
Section 1.7, any
provision hereof may be waived by the waiving party on such
party’s own behalf, without the consent of any other party;
and
(c) this Agreement
shall terminate when Investors cease to beneficially own (within
the meaning of Section 13(d) under the Securities Exchange Act and
the rules and regulations thereunder) at least 50% of the equity
securities of the Company (adjusted for splits, reverse splits,
recombinations and other similar events) beneficial ownership of
which was sold pursuant to the Purchase Agreement.
The
Company shall give prompt written notice of any amendment,
modification, termination, or waiver hereunder to any party that
did not consent in writing thereto. Any amendment, modification,
termination, or waiver effected in accordance with this
Subsection 4.8
shall be binding on each party and all of such party’s
successors and permitted assigns, whether or not any such party,
successor or assignee entered into or approved such amendment,
modification, termination or waiver.
4.9 Delays
or Omissions. No delay or
omission to exercise any right, power or remedy accruing to any
party under this Agreement, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or
remedy of such non-breaching or non-defaulting party nor shall it
be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default
previously or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
4.10 Severability.
The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other
provision.
4.11 Entire
Agreement. This Agreement
(including the Exhibits hereto) and the other Transaction Documents
(as defined in the Purchase Agreement) constitute the full and
entire understanding and agreement between the parties with respect
to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between
the parties is expressly canceled.
4.12 Stock
Splits, Stock Dividends, etc. In the event
of any issuance of Shares or the voting securities of the Company
hereafter to any of the Voting Parties (including, without
limitation, in connection with any stock split, stock dividend,
recapitalization, reorganization, or the like), such Shares shall
become subject to this Agreement.
4.13 Manner
of Voting. The voting of
Shares pursuant to this Agreement may be effected in person, by
proxy, by written consent or in any other manner permitted by
applicable law. For the avoidance of doubt, voting of the Shares
pursuant to the Agreement need not make explicit reference to the
terms of this Agreement.
4.14 Further
Assurances. At any time or
from time to time after the date hereof, the parties agree to
cooperate with each other, and at the request of any other party,
to execute and deliver any further instruments or documents and to
take all such further action as the other party may reasonably
request in order to carry out the intent of the parties
hereunder.
4.15 Costs
of Enforcement. If any party to
this Agreement seeks to enforce its rights under this Agreement by
legal proceedings, the non-prevailing party shall pay all costs and
expenses incurred by the prevailing party, including, without
limitation, all reasonable attorneys’ fees.
4.16 Aggregation
of Stock. All Shares held
or acquired by an Investor and/or its Affiliates shall be
aggregated together for the purpose of determining the availability
of any rights under this Agreement, and such Affiliated persons may
apportion such rights as among themselves in any manner they deem
appropriate.
4.17 Disclosure.
The parties hereto hereby consent to the disclosure of the
substance of this Agreement in any news release required by
applicable laws or any circular relating to a meeting of
shareholders of the Company and to the public filing of this
Agreement on the System for Electronic Document Analysis and
Retrieval (SEDAR) as may be required pursuant to applicable laws;
provided, however, that any such news release or disclosure shall
be provided to counsel for the Investors in advance of any public
filing and any comments thereto shall be considered in good
faith.
[Signature Pages
Follows]
IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as
of the date first written above.
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COMPANY:
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Indus
Holdings Inc.
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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CEO
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