VOTING AGREEMENT
This Agreement is entered into this 30th day of April, 2003, by and between
Developed Technology Resource, Inc., a Minnesota corporation (the "Company"),
the shareholders of the Company named on the signature page of this Agreement
(the "Shareholders" or, individually, the "Shareholder"), and Xxxxx X. Xxxxxx
("Xxxxxx").
Recitals
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A. On April 18, 2003, the Company, NP Acquisition Corp., a wholly owned
subsidiary of the Company, GelStat Corp. and the Shareholders, entered into an
Agreement and Plan of Merger (the "Merger Agreement"), whereby NP Acquisition
Corp. and GelStat Corporation are to merge (the "Merger").
B. On this date, NP Acquisition Corp. and GelStat Corporation executed
Articles of Merger providing for the Merger.
C. At the Effective Time, as defined in the Merger Agreement, the
Shareholders will own the number of shares of the Company's common stock as set
forth on the signature page of this Agreement, consisting of an aggregate of
1,474,530 shares.
D. As a condition precedent to the Merger, the Company has required that
the Shareholders enter into an agreement with Xxxxxx, requiring them to vote
their shares of the Company's common stock to elect Xxxxxx, or his designee, to
the Board of Directors of the Company, as set forth in this Agreement.
Agreement
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NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
contained herein, the parties hereto agree as follows:
1. DEFINITIONS. The following words and phrases shall have the meanings
ascribed below:
a. "Capital Stock" shall mean the voting capital stock of the Company
of all classes, including without limitation, the Company's common stock,
whether now owned or hereafter acquired.
b. "Board of Directors" shall mean the Board of Directors of the
Company.
c. "Meeting" shall mean any lawfully called and held meeting of the
Holders of Capital Stock at which the establishment of the number of
members of the Board of Directors or the election of members to the Board
of Directors is placed for consideration before such Holders.
d. "Action by Consent" shall mean any action taken in writing in lieu
of a Meeting by Holders of Capital Stock which constitutes a meeting under
the laws of the state of Minnesota.
e. A "Holder" or "Holders" is a person or persons who is or are the
record holders of the Capital Stock as recorded on the books of the Company
as of any relevant date. For the purpose of Section 2 of this Agreement,
each Shareholder will also be deemed to be the Holder of any Capital Stock
over which he, she or it exercises voting control.
2. OBLIGATION TO VOTE SHARES. At the next Meeting, Shareholders will, or
cause any proxy designated by each such Shareholder to, cast his, her or its
votes as a Holder in favor of (i) not less than a three or more than a seven
member Board of Directors of the Company, (ii) an amendment to the Bylaws of DTR
establishing a class of members of the Board of Directors consisting of one
independent member to serve for a term of four years or until the election of a
successor at any Meeting held in 2007, and (iii) Xxxxxx to serve as the member
of the class of members of the Board of Directors which may be elected for a
four-year term. The obligation of the Shareholder to cast his, her or its votes,
includes the obligation to use his, her or its best efforts to appear in person
or by proxy at each Meeting, and to cast all votes which he, she or it is then
entitled to cast. The obligation of each Shareholder under this provision shall
terminate following any Meeting at which Xxxxxx is elected to serve as a member
of the Board of Directors for a four-year term as provided above.
3. NO SALE OR IMPAIRMENT OF STOCK. During the term of the Shareholders'
obligations hereunder, no Shareholder will sell, assign, pledge or otherwise
encumber, or enter into any agreement to sell, assign, pledge or otherwise
encumber, his, her or its shares of Capital Stock, or any interest therein, or
enter into any voting or other agreement or execute any proxy, which would
preclude, limit or impair his, her or its performance of the terms of this
Agreement, except as approved by Xxxxxx or as otherwise permitted hereunder.
4. EQUITABLE REMEDIES. The parties hereto agree that irreparable damage
could occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, Xxxxxx and the Company shall be entitled to equitable relief,
including injunctive relief, to prevent or rectify any breach of this Agreement
and to enforce specifically the terms and provisions hereof in any court the
jurisdiction of which the parties are or have consented to be subject as
provided hereunder, this being in addition to any other remedy to which they are
entitled at law or in equity.
5. EXPENSES. In the event the Company or any Shareholder is found to have
breached any material provision of this Agreement by a court of competent
jurisdiction, or any arbitrator or other fact finder agreed to by the parties
hereto, the Company and the Shareholders will be jointly and severally liable to
Xxxxxx for his reasonable costs and expenses (including reasonable attorney's
fees), incurred in connection with such breach and his attempts to seek a remedy
therefor.
6. SEVERABILITY. If any provision of this Agreement or the application of
any such provision shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and the parties
hereto intend that there shall be added as part of this Agreement a valid, legal
and enforceable provision as similar in terms to such invalid, illegal or
unenforceable provision as may be possible or practicable under the
circumstances.
7. ADDITIONAL DOCUMENTS. Each party hereto agrees to execute and deliver,
or cause to be executed and delivered, such additional instruments, certificates
and other documents, and to take such
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other action as may be necessary or advisable in order to carry out the terms
and provisions of this Agreement.
8. NOTICES. To be effective, all notices, consents, designations,
statements or other communications required or permitted hereunder shall be in
writing. A written notice or other communication shall be deemed to have been
given hereunder (i) if delivered by hand, when the notifying party delivers such
notice or other communication to all other parties to this Agreement, (ii) if
delivered by overnight delivery service, on the second business day following
the date such notice or other communication is timely delivered to the overnight
courier, (iii) if delivered by telecopier on the first business day following
the date such notice or communication is transmitted, or (iv) if delivered by
mail, on the fourth business day following the date such notice or other
communication is deposited in the U.S. mail by certified or registered mail
addressed to the other party, whichever occurs earlier. Mailed or telecopied
communications shall be directed as follows unless written notice of a change of
address or telecopier number has been given in writing in accordance with this
Section.
If to the Company: Developed Technology Resource, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
If to Xxxxxx: Xxxxx X. Xxxxxx
00000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
If to the Shareholders: At the addresses set forth on the signature page.
9. GOVERNING LAW AND VENUE. This Agreement shall be governed and construed
according to the law of Minnesota as to contracts to be wholly performed within
that state. Any actions or proceeding that any party brings for equitable relief
under this Agreement shall be brought only in the state or federal courts in
Minnesota and the parties agree to the exclusive jurisdiction of such courts for
any such action or proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DEVELOPED TECHNOLOGY RESOURCE, INC.
By: _____________________________ _______________________________________
Xxxxx X. Xxxxxx
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SHAREHOLDERS:
____________________________________ Address:
Xxxxxxx X. Xxxxxxx 0000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Number of Shares owned: 522,393 Xxxxxxxxxxx, XX 00000
____________________________________ Address:
Xxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxx
Number of Shares owned: 220,730 Xxxxxxxxx, XX 00000
____________________________________ Address:
Xxxxxxx X. Xxxxxxxx 0000 Xxxxxxxxx Xxxxxx
Number of Shares owned: 728,407 Xxxxxxxxx, XX 00000
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