VOTING AGREEMENT
CADENCE RESOURCES CORPORATION
BOARD OF DIRECTORS
TABLE OF CONTENTS
1. Voting Agreement..........................................................1
1.1 Board Composition....................................................1
1.2 Size of the Board....................................................2
1.3 Removal of Board Members.............................................2
2. Term......................................................................2
3. Specific Enforcement......................................................2
4. Miscellaneous.............................................................2
4.1 Transfers, Successors and Assigns....................................2
4.2 Governing Law........................................................3
4.3 Counterparts; Signatures.............................................3
4.4 Titles and Subtitles.................................................3
4.5 Notices..............................................................3
4.6 Amendment............................................................3
4.7 Severability.........................................................3
4.8 Delays or Omissions..................................................4
4.9 Entire Agreement.....................................................4
4.10 Legend on Share Certificates.........................................4
4.11 Execution by the Company.............................................4
4.12 Stock Splits, Stock Dividends, Etc...................................4
4.13 Covenants of the Company.............................................4
4.14 Manner of Voting; Grant of Proxy.....................................5
4.15 Costs of Enforcement.................................................5
4.16 Additional Investors.................................................5
4.17 Spousal Consent......................................................5
Schedule A - Key Holders
Schedule B - Investors
Exhibit 1 - Adoption Agreement
Exhibit 2 - Consent of Spouse
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VOTING AGREEMENT
THIS VOTING AGREEMENT (the "AGREEMENT") is made and entered into effective
as of this [__] day of __________________, 2005, by and among Cadence Resources
Corporation, a Utah corporation (the "COMPANY"), and the stockholders of the
Company and holders of proxies to vote the capital stock of the Company listed
on Schedule A hereto, together with any transferees who become subject to the
provisions of this Agreement pursuant to Section 4.1 (collectively, the
"STOCKHOLDERS"). The Company and the Stockholders are individually referred to
in this Agreement as a "PARTY" and are collectively referred to in this
Agreement as the "PARTIES."
RECITALS:
A. Concurrently with the execution of this Agreement, Aurora Energy, Ltd.,
a Nevada corporation ("Aurora") is merging with Aurora Acquisition Corp, a
Nevada corporation and wholly owned subsidiary of the Company ("ACQUISITION
SUB"), pursuant to which Aurora will become a wholly owned subsidiary of the
Company (the "MERGER"). Aurora shareholders will exchange their Aurora common
stock for Cadence common stock as a part of the merger.
B. As a part of the Merger closing, certain key stockholders of the
Company are issuing proxies to representatives of Aurora, to facilitate
implementation of the agreement of the parties that Aurora's management team
will manage the Company from the effective date of the Merger forward, replacing
the Company's previously existing management. The proxies are to remain in
effect for a period of 36 months.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the Parties agree as follows:
1. VOTING AGREEMENT.
1.1 BOARD COMPOSITION. Each Stockholder agrees to vote all of
Stockholder's shares of voting securities in the Company, whether now owned or
hereafter acquired or which Stockholder may be empowered to vote by proxy or
otherwise (collectively, the "SHARES"), from time to time and at all times, in
whatever manner shall be necessary to ensure that at each annual or special
meeting of stockholders of the Company at which an election of directors is held
or pursuant to any written consent of the stockholders of the Company, the
following persons shall be elected to serve on the Company's Board of Directors:
(a) Five directors designated by Xxxxxxx X. Xxxxxx ("X.
XXXXXX"), who shall initially be Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxx, Xxxx X.
Xxxxx, Xxxxxxx Xxxxxx, and Xxxxxx X. Xxxx; and
(b) Two directors designated by X. Xxxxxx from among the
Company's Board of Directors immediately before closing of the Merger, who shall
initially be Xxxxxx Xxxxxx and Xxxxx Xxxxx.
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1.2 SIZE OF THE BOARD. Each Stockholder agrees to vote all of
Stockholder's Shares from time to time and at all times, in whatever manner
shall be necessary to ensure that the size of the Board shall be set and remain
at seven directors.
1.3 REMOVAL OF BOARD MEMBERS. Each Stockholder also agrees to vote
all of the Stockholder's Shares from time to time and at all times in whatever
manner as shall be necessary to ensure that (i) no director elected pursuant to
Section 1.1 may be removed from office unless (A) the removal is directed or
approved by the affirmative vote of the person or entity entitled under Section
1.1 to designate that director, or (B) the person or entity originally entitled
to designate or approve the director pursuant to Section 1.1 is no longer so
entitled to designate or approve the director; and (ii) any vacancies created by
the resignation, removal or death of a director elected pursuant to Section 1.1
shall be filled pursuant to the provisions of Section 1.1. Each Stockholder
agrees to execute any written consents required to effectuate the obligations of
this Agreement, and the Company agrees at the request of any Party entitled to
designate directors, to call a special meeting of stockholders for the purpose
of electing directors or to initiate an election by written consent.
2. TERM. This Agreement shall continue in effect until and shall terminate
on the earlier of 36 months after its effective date or the date of X. Xxxxxx'x
death.
3. SPECIFIC ENFORCEMENT. Each Party acknowledges and agrees that the other
Parties will be irreparably damaged if 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
Stockholders are entitled to obtain 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 United States or any
state having subject matter jurisdiction, in addition to any other remedy to
which the Parties may be entitled at law or in equity.
4. MISCELLANEOUS.
4.1 TRANSFERS, SUCCESSORS AND ASSIGNS.
(a) 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.
(b) Each transferee or assignee of the Shares subject to this
Agreement shall continue to be subject to the terms hereof, and, as a condition
to the Company's recognizing the transfer, each transferee or assignee shall
agree in writing to be subject to the terms of this Agreement by executing and
delivering an Adoption Agreement substantially in the form attached hereto as
Exhibit 1. Upon the execution and delivery of an Adoption Agreement by a
transferee, the transferee shall be deemed to be a Party hereto as if the
transferee's signature appeared on the signature pages of this Agreement. By
execution of this Agreement or of any Adoption Agreement, each of the Parties
appoints the Company as its attorney in fact for the purpose of executing an
Adoption Agreement that is required to be delivered under the terms of this
Agreement. The Company shall not permit the transfer of the Shares subject to
this Agreement on its books or issue a new certificate representing the Shares
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unless and until the transferee has complied with the terms of this Section 4.1.
Each certificate representing the Shares subject to this Agreement if issued on
or after the date of this Agreement shall be endorsed by the Company with the
legend set forth in Section 4.10. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the Parties or their respective
executors, administrators, heirs, successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the General Corporation Law of the State of Utah as to
matters within the scope thereof, and as to all other matters shall be governed
by and construed in accordance with the internal laws of the State of Michigan,
without regard to its principles of conflicts of laws.
4.3 COUNTERPARTS; SIGNATURES. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed and delivered by facsimile signature which shall be legally
binding as if it were an original.
4.4 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.
4.5 NOTICES. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the Party to be notified, (b) when sent by
confirmed electronic mail or facsimile if sent during normal business hours of
the recipient, and if not so confirmed, then on the next business day, (c) five
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the Parties at
their addresses as set forth on the signature page, or to the email address,
facsimile number or address as subsequently modified by written notice given in
accordance with this Section 4.5.
4.6 AMENDMENT.
(a) This Agreement may be amended or modified and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument executed by the Company, Xxxxxx and Investor. Any amendment or waiver
so effected shall be binding upon the Company, the Stockholders and the
Investor, and all of their respective successors and permitted assigns whether
or not the Party, assignee or other shareholder entered into or approved the
amendment or waiver.
(b) The Company shall give prompt written notice of any
amendment or termination of this Agreement or waiver hereunder to any Party that
did not consent in writing to the amendment, termination or waiver. Any
amendment, termination or waiver effected in accordance with this Section 4.6
shall be binding on all Parties, even if they do not execute the consent.
4.7 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
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4.8 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 right, power
or remedy of the non-breaching or non-defaulting Party, nor shall it be
construed to be a waiver of any breach or default, or an acquiescence therein.
Nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default. 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 the writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Party, shall be cumulative
and not alternative.
4.9 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the Parties with respect to the subject
matter of this Agreement, and any other written or oral agreement relating to
the subject matter of this Agreement existing between the Parties is expressly
canceled.
4.10 LEGEND ON SHARE CERTIFICATES. Each certificate representing any
Shares shall be endorsed by the Company with a legend reading substantially as
follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A
COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE
COMPANY), AND BY ACCEPTING ANY INTEREST IN THE SHARES THE PERSON
ACCEPTING THE INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME
BOUND BY ALL THE PROVISIONS OF THAT VOTING AGREEMENT, INCLUDING
CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET FORTH THEREIN.
4.11 EXECUTION BY THE COMPANY. The Company, by its execution in the
space provided below, agrees that it will cause the certificates evidencing the
Shares to bear the legend required by Section 4.10, and it shall supply, free of
charge, a copy of this Agreement to any holder of a certificate evidencing the
Shares upon written request from the holder to the Company at its principal
office. The Parties to this Agreement agree that the failure to cause the
certificates evidencing the Shares to bear the legend required by Section 4.10
and the failure of the Company to supply, free of charge, a copy of this
Agreement as provided under this Section 4.11 shall not affect the validity or
enforcement of this Agreement.
4.12 STOCK SPLITS, STOCK DIVIDENDS, ETC. If the Company issues
additional Shares to any of the Stockholders (including, without limitation, in
connection with any stock split, stock dividend, recapitalization,
reorganization, or the like), the additional Shares shall become subject to this
Agreement and shall be endorsed with the legend set forth in Section 4.10.
4.13 COVENANTS OF THE COMPANY. The Company agrees to use its best
efforts to ensure that the rights granted under this Agreement are effective and
that the Parties enjoy the benefits of this Agreement. This includes, without
limitation, the use of the Company's best efforts to cause the nomination and
election of the directors as provided above. The Company will not, by any
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be performed by the Company under this Agreement, but will at all
times in good faith assist in the carrying out of all of the provisions of this
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Agreement and in the taking of all actions that are necessary, appropriate or
reasonably requested by a Stockholder or Investor in order to protect the rights
of the Stockholders and Investor against impairment.
4.14 MANNER OF VOTING; GRANT OF PROXY. 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. Each Party hereby grants to the
Secretary of the Company, in the event that the Party fails to vote the Party's
Shares as required by this Agreement, a proxy coupled with an interest in all
Shares, whether held by an Investor or a Stockholder, beneficially owned by the
Party, which proxy is irrevocable until this Agreement terminates pursuant to
its terms or this Section 4.14 is amended in accordance with Section 4.6 to
remove the grant of proxy.
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 ADDITIONAL INVESTORS. Notwithstanding anything to the contrary
contained in this Agreement, if the Company issues additional shares of the
Company's common stock after the date of this Agreement, the purchaser may
become a Party to this Agreement by executing and delivering an additional
counterpart signature page to this Agreement and thereafter shall be deemed a
Stockholder under this Agreement.
4.17 SPOUSAL CONSENT. If a Stockholder who resides in Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin,
or the Commonwealth of Puerto Rico (a "COMMUNITY PROPERTY STATE STOCKHOLDER") is
married on the date of this Agreement, such Community Property State
Stockholder's spouse shall execute and deliver to the Company a consent of
spouse in the form of Exhibit 2 ("CONSENT OF SPOUSE"), effective on the date of
this Agreement. The Consent of Spouse shall not be deemed to confer or convey to
the spouse any rights in the Community Property State Stockholder's shares of
capital stock that do not otherwise exist by operation of law or the agreement
of the parties. If a Community Property State Stockholder marries or remarries
subsequent to the date of this Agreement, such Community Property State
Stockholder shall, within 30 days after the marriage, obtain his/her new
spouse's acknowledgement of and consent to the existence and binding effect of
all restrictions contained in this Agreement by causing the new spouse to
execute and deliver a Consent of Spouse acknowledging the restrictions and
obligations contained in this Agreement and agreeing and consenting to them.
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IN WITNESS OF THIS VOTING AGREEMENT, the Parties have signed below.
CADENCE RESOURCES CORPORATION
By:
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Name:
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Title:
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Address:
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Fax No.
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E-mail:
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Date:
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COUNTERPART SIGNATURE PAGE
CADENCE RESOURCES CORPORATION
VOTING AGREEMENT
DATED: ________________, 2005
STOCKHOLDER:
By:
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Name:
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Title:
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Address:
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Fax No.
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E-mail:
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Date:
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SCHEDULE A
STOCKHOLDER
Number of Shares Entitled to Vote by Direct
Ownership, Beneficial Ownership, and Irrevocable
Name Proxy
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Xxxxxx Xxxxxx
Xxxxxx Enterprises, Inc.
Xxxxxx Exploration Company
Xxxx Xxxx
Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx as custodian for Xxxxx Xxxx
Xxxxx Xxxxxx Xxxx as custodian for Xxxxxxx Xxxx
X.X. Xxxx Company, Inc.
Andover Capital Corporation
Xxxxxx X. Low Xxxx XXX
Xxxxxx X. Low
Xxxxxx X. Low Family Trust
Shares owned by Xxxxxx X. Low's wife for the benefit of
their minor children
Xxxxxx Xxxxxx
Electrum Resources, LLC
Electrum Capital, LLC
CGT Management, Ltd.
Xxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx Trust
Denthorn Trust
Xxxx X. Xxxxxx
Number of Shares Entitled to Vote by Direct
Ownership, Beneficial Ownership, and Irrevocable
Name Proxy
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Xxxx X. & Xxxxxxxx X. Xxxxxx TTEE, Xxxxxx Family Living
Trust DTD 6/25/97
Xxxxxx Resources, Inc.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Trust
Xxxxxx X. Xxxxxx Trust
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx Living Trust, DTD 1/21/87
Xxxx X. Xxxxx
Xxxx X. Xxxxx
EXHIBIT 1
ADOPTION AGREEMENT
THIS ADOPTION AGREEMENT ("ADOPTION AGREEMENT") is executed by the
undersigned (the "TRANSFEREE") pursuant to the terms of that certain Voting
Agreement dated as of _____________, 2005 (the "AGREEMENT") by and among the
Company and certain of its Stockholders. Capitalized terms used but not defined
in this Adoption Agreement shall have the respective meanings ascribed to them
in the Agreement. By the execution of this Adoption Agreement, the Transferee
agrees as follows:
1.1 ACKNOWLEDGEMENT. Transferee acknowledges that Transferee is acquiring
certain shares of the capital stock of the Company (the "SHARES"), subject to
the terms and conditions of the Agreement and that if Transferee does not
execute this Adoption Agreement, the Shares will not be transferred to
Transferee.
1.2 AGREEMENT. Transferee (i) agrees that the Shares acquired by
Transferee shall be bound by and subject to the terms of the Agreement, and (ii)
hereby adopts the Agreement with the same force and effect as if Transferee were
originally a Party thereto.
1.3 NOTICE. Any notice required or permitted by the Agreement shall be
given to Transferee at the address listed beside Transferee's signature below.
EXECUTED AND DATED this ______ day of _______________, 200__.
TRANSFEREE
By:
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Name:
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Title:
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Address:
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Fax:
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E-mail:
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Accepted and Agreed:
CADENCE RESOURCES CORPORATION,
Individually and as Attorney-in-Fact for the
Stockholders and Investor
By:
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Title:
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EXHIBIT 2
CONSENT OF SPOUSE
I, ____________________, spouse of ______________, acknowledge that I have
read the Voting Agreement, dated as of _____________, 2005, to which this
Consent is attached as Exhibit 2 (the "AGREEMENT"), and that I know the contents
of the Agreement. I am aware that the Agreement contains provisions regarding
the voting and transfer of shares of capital stock of the Company which my
spouse may own, including any interest I might have therein.
I hereby agree that my interest, if any, in any shares of capital stock of
the Company subject to the Agreement shall be irrevocably bound by the Agreement
and further understand and agree that any community property interest I may have
in the shares of capital stock of the Company shall be similarly bound by the
Agreement.
I am aware that the legal, financial and related matters contained in the
Agreement are complex and that I am free to seek independent professional
guidance or counsel with respect to this Consent. I have either sought such
guidance or counsel or determined after reviewing the Agreement carefully that I
will waive such right.
Dated:
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Signature
Print Name of Stockholder's Spouse
