VOTING AGREEMENT
Agreement
made as of this 31st day of December, 2010, by and among (i) Piper Acquisition
III, Inc., a Nevada Corporation (the "Company"), (ii) the
stockholders named on Schedule I hereto, (the "Stockholders" and singularly
as a "Stockholder") and (iii) Xxxxx Xxxxx and Xxxx Xxxxxxx (collectively,
the "Principals").
WHEREAS, the Company has
agreed to issue, effective the date hereof, shares of common stock, $.00001
par value per share ("Common Stock") of the Company to the Stockholders listed
on Schedule I hereto (such shares, together with any shares as provided in
Section 1 hereof, the "Shares");
WHEREAS, the Stockholders have
been limited partners in one or more of First Street Surgical Center, LP, First
Surgical Woodlands, LP and First Street Hospital, LP (collectively, the
“Entities”), each of which have elements of common ownership and are managed by
First Surgical Partners LLC;
WHEREAS, the Stockholders,
since the earlier of inception of the Entities in which he, she or it was a
limited partner or January 1, 2007, have all voted in an unanimous manner
pursuant to a verbal agreement in order to promote their mutual interest and the
interest of the Entities;
WHEREAS, the Stockholders have
elected to enter into that certain Contribution Agreement whereby their
interests in the Entities will be contributed to the Company in consideration
for the Shares;
WHEREAS, the parties hereto
desire to continue to promote their mutual interests and the interests of
the Company by providing in this Agreement for the terms and conditions
governing the voting of the Shares.
NOW THEREFORE, in
consideration of these premises and of the stipulations hereinafter
recited, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1.
GENERAL PROVISIONS
1.1 Shares
Subject to this Agreement. The Stockholders expressly agree that the terms
and restrictions of this Agreement shall apply to all shares of capital
stock of the Company which any of them now owns or hereafter acquires
by any means, including without limitation by purchase, assignment or
operation of law, or as a result of any stock dividend, stock split,
reorganization, reclassification, whether voluntary or involuntary, or
other similar transaction, and to any shares of capital stock of any
successor in interest of the Company, whether by sale, merger,
consolidation or other similar transaction, or by purchase, assignment or
operation of law including the transaction expected to be entered by and between
the Company, the Stockholders and Arkson Nutraceuticals Corp. or such other
public entity.
1.2 No
Partnership Relationship. Notwithstanding, but not in limitation of, any
other provision of this Agreement, the parties understand and agree
that the creation, management and operation of the Company shall not create
or imply a general partnership between or among the Stockholders and shall
not make any Stockholder the agent or partner of any other Stockholder for
any purpose.
2. VOTING
2.1 Grant
of Proxy. By his or her execution hereof, each of the Stockholders hereby
grants to the Principals an irrevocable proxy, with full power of
substitution, to vote all of the Shares held by him or her or it to execute
and deliver written consents on all matters submitted to the stockholders
of the Company with respect to his or her Shares in such manner as the
Principals in their sole discretion shall determine. The Principals shall
have full power and authority to do and perform each and every act and
thing whether necessary or desirable to be done, as fully as such
Stockholder might or could do if personally present at a stockholders'
meeting or personally providing or withholding such consent. The Principals
may adopt their own rules of procedure and are authorized to vote or act
in person or by proxy at any and all regular and special meetings of the
stockholders of the Company for whatever purpose called or held, or in
connection with any proceedings wherein the vote or written consent of the
stockholders may be required or authorized. Each Stockholder hereby affirms
that this proxy is given as a condition to his or her receipt of the Shares
and as such is coupled with an interest and will not be revocable or
revoked by him or her during the term of this Agreement.
2.2 Notice
of Meeting or Consent. The Company agrees that during the term of this
Agreement it will provide written notice to the Principals with respect
to all proposals to be submitted to a vote of stockholders at a special or
annual meeting of the Company or all proposals as to which the consents of
the stockholders of the Company are being sought, as if he/she were a
stockholder of the Company in the manner provided under the Company's
Certificate of Incorporation and By-Laws or as written notice is otherwise
provided to other holders of the Company's voting capital
stock.
2.3 Dividends.
This Agreement shall only effect the Stockholders' right to vote the Shares
at a special or annual meeting of the Company or consent to proposals
otherwise presented to stockholders of the Company. Nothing herein shall
restrict the Stockholders from receiving payments of dividends or
other distributions from the Company with respect to the
Shares.
2.4 Resignation
and Replacement of Principals. If any of the Principals dies, becomes
disabled or resigns as proxyholder or is no longer an officer or director
of the Company, the remaining Principal(s) shall be entitled to
exercise all of the powers and rights granted to the Principals hereunder
without any further action or formality. If none of the Principals is
entitled to act as proxyholder under this Agreement either due to death,
disability or resignation or because none of the Principals is an officer
or director of the Company, the Stockholders, by vote of a majority in
interest of their Shares shall designate a replacement proxyholder
hereunder. Upon such replacement, such proxyholder shall be entitled to
exercise all of the powers and rights granted to the Principals hereunder
without any further action or formality.
2.5 Effect
of Votes. Each Stockholder covenants and agrees that, on any proposal upon
which the Principals are empowered to vote Shares pursuant hereto, whether
at a meeting of stockholders or by written consent, such voting will be as
fully effective as if such votes had been cast by such Stockholder
without regard hereto. Without limiting the generality of the foregoing,
each Stockholder agrees that he or she will not, with respect to any
proposal upon which such votes may be cast, make any claim against the
Company, its other stockholders, directors, officers, employees, agents or
representatives in his or her capacity as a stockholder of the Company,
including but not limited to any claim for an appraisal with respect to any
Shares.
3.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of Individual Stockholders. Each Stockholder who is an
individual hereby represents and warrants to the Company and to each other
Stockholder as follows:
(a) Absence
of Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will constitute a
violation of, or default under, or conflict with, or require any consent
under any term or provision of any contract, commitment, indenture, lease
or other agreement to which such Stockholder is a party or by which
such Stockholder or any of his or her assets is bound.
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(b) Binding
Obligation. This Agreement constitutes a valid and binding obligation of
such Stockholder, enforceable in accordance with its terms, except to the
extent that such enforceability may be limited by bankruptcy,
insolvency and similar laws affecting the rights and remedies of creditors
generally, and by general principals of equity and public
policy.
4. MISCELLANEOUS
4.1 Term.
This Agreement shall remain in full force and effect until terminated upon
the one (1) year anniversary of the date hereof.
4.2 Legend
Required. Each certificate representing Shares shall bear the following
legend during the term of this Agreement:
"The
shares represented by this certificate are subject to a Voting Agreement dated
as of November __, 2010, a copy of which Voting Agreement is available for
inspection at the offices of the Company or will be furnished upon request
of the record owner of the shares represented by this
certificate."
4.3 Enforcement.
Each Stockholder acknowledges that immediate and irreparable damage would
occur in the event that he or she fails to perform the provisions of this
Agreement in accordance with their specific terms or if he or she otherwise
breaches this Agreement. Accordingly, in addition to any other remedy, the
Company shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement by the Stockholder and to enforce
specifically the terms and provisions hereof in any federal or state court
jurisdiction.
4.4 Entire
Agreement. This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, both written and oral.
4.5 Notices.
All notices, requests, consents and other communications hereunder shall be
in writing, shall be addressed to the receiving party's address set forth
below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) made by
telex, telecopy or facsimile transmission, (iii) sent by overnight courier,
or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid.
If to the Company:
Piper
Acquisition III, Inc.
c/o First
Surgical Partners, L.L.C.
000 Xxxxx
Xxxxxx
Xxxxxxxx,
Xxxxx 00000
Attn:
Xxxx Xxxxxxx
Telecopier
No.: 000-000-0000
If to the Stockholders:
To the
address indicated on the signature pages hereto.
If to the Principals:
Xxxxx
Xxxxx
Xxxx
Xxxxxxx
3
c/o First
Surgical Partners, L.L.C.
000 Xxxxx
Xxxxxx
Xxxxxxxx,
Xxxxx 00000
Attn:
Xxxx Xxxxxxx/Xxxxx Xxxxx
Telecopier
No.: 000-000-0000
All
notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set
forth above, (ii) if made by telex, telecopy or facsimile transmission, at
the time that receipt thereof has been acknowledged by electronic
confirmation or otherwise, (iii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier
service, or (iv) if sent by registered or certified mail, on the fifth
business day following the day such mailing is made.
4.6 Severability.
In the event that any court having jurisdiction shall determine that any
provision contained in this Agreement shall be unreasonable or
unenforceable in any respect, then such covenant or other provision shall
be deemed limited to the extent that such court deems it reasonable
and enforceable, and as so limited shall remain in full force and effect.
In the event that such court shall deem any such covenant or other
provision wholly unenforceable, the remaining covenants and other
provisions of this Agreement shall nevertheless remain in full force and
effect.
4.7 Further
Agreements. Each of the parties hereto shall execute such documents and take
such further actions as may be reasonably required or desirable to carry
out the provisions of this Agreement and the transactions contemplated
hereby.
4.8 Assignment.
This Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the other party hereto.
4.9 Parties
in Interest. This Agreement shall be binding upon the heirs, legatees and
devisees, executors, administrators, legal representatives, successors and
assigns of the Company, the Stockholders and the Principals. Nothing
herein, either express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement. Nothing in this Agreement shall be construed to
create any rights or obligations except among the parties hereto, and no
person or entity shall be regarded as a third-party beneficiary of this
Agreement.
4.10 Interpretation.
The parties hereto acknowledge and agree that: (i) each party and its
counsel have reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rule
of construction to the effect that any ambiguities are resolved against
the drafting party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement shall be
construed fairly as to all parties hereto and not in favor of or against
any party, regardless of which party was generally responsible for the
preparation of this Agreement.
4.11 Amendment;
Waiver. This Agreement may not be amended or modified except by an
instrument in writing signed by the parties hereto. The terms
and provisions of this Agreement may be waived, or consent for the
departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or
consent shall be deemed to be or shall constitute a waiver or consent with
respect to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
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4.12 Governing
Law. This Agreement shall be governed by, and construed in accordance with,
the law of the State of Texas, without giving effect to the conflict of law
principles thereof. The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located within the City
of Houston, State of Texas over any dispute arising out of or relating to this
Agreement or any of the transactions contemplated hereby and each party hereby
irrevocably agrees that all claims in respect of such dispute or any suit,
action proceeding related thereto may be heard and determined in such
courts. The parties hereby irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or any defense
of inconvenient forum for the maintenance of such dispute. Each of
the parties hereto agrees that a judgment in any such dispute may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
4.13 Counterparts.
This Agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be
executed and delivered under seal as of the date first written
above.
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PIPER
ACQUISITION III, INC.
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By:
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Name:
Xxx Xxxxx
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Title:
CEO
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PRINCIPALS
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Xxxxx
Xxxxx
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Xxxx
Xxxxxxx
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[See
attached counterpart signature pages]
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IN
WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be
executed and delivered under seal as of the date first written
above.
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STOCKHOLDER
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Signature
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Print
Name
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Address:
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Telecopier No.:
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6
Schedule
I
Stockholders
Xx. Xxxxx
Xxxxx
Xxxxxxxx
Xxxx MD PA
Xx.
Xxxxxxx Xxxxxxxxx
Xx. Xxxxx
Xxxxxx
Xx. Xxxxx
Xxxxxxxxx
F.Y.M.
Partners, LLP (Collins, Varner, Xxxxxxx)
Dr.
Xxxxxxx Xxxxx
Xxxx
Xxxxxxx
First
Surgical Partners LLC
Xx. Xxxx
Xxxxx
Xx. Xxx
Xxxxx
Xx.
Xxxxxxx Xxxx
Xx. Xxxx
Xxxxxxxx
Xxxxxxx
X. XxXxxxxxx 2007 Gift Trust
Xx. Xxxx
Xxxx
Xx. Xxxx
Xxxxx
Xx. Xxxxx
Xxxxxx
Xx.
Xxxxxx Xxxxx
Xx. Xxxxx
Xxxxxxxx
Xx. Xxxx
Xxxxx
Xx. Xxx
Xxxxxx
Dr. Xxxx
Xxxxx
Dr. Xxxx
Pack
Dr. Xxxx
Xxxxx
Xx.
Xxxxxxxxxxx Ngu
Xx.
Xxxxxxx Xxxxxx
Xx.
Xxxxxxxx Xxxx
Xx.
Xxxxxxx Xxxxxxx
Xx. Xxxx
Xxxxxx
SJS 2006
Gift Trust (Xx. Xxxx Xxxxxxx)
KBK 2006
Gift Trust (Xx. Xxxxx Xxxxxxx)
KV 2006
Gift Trust (Xx. Xxxxx Xxxxxx)
Xxxxxx
Xxxxxxx
Xxx
Xxx
7
