VOTING AGREEMENT
VOTING
AGREEMENT
THIS
VOTING AGREEMENT (the “Agreement”) is made and entered into effective as of this
____ day of October 2005, by and among Cadence Resources Corporation, a Utah
corporation (the “Company”), and each of the shareholders of the Company that is
named on and signing a signature page 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.
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.
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(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 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 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.
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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 and the Stockholder against whom
such
amendment, modification or waiver is to be enforced. Any amendment, modification
or waiver so effected shall be binding upon the Company and such Stockholder,
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.
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.
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 if issued after the date of this Agreement
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 FROM THE COMPANY UPON WRITTEN REQUEST), 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.
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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 issued after the date of this Agreement
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 issued after the date of this Agreement
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 Agreement and in the taking of all actions
that are necessary, appropriate or reasonably requested by a Stockholder
in
order to protect the rights of the Stockholders 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.
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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 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.
IN
WITNESS OF THIS VOTING AGREEMENT, the Parties have signed below.
| CADENCE RESOURCES CORPORATION | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
|
Address:
c/o
Aurora Energy, Ltd.
|
||
|
3760
North US 00 Xxxxx
|
||
|
X.
X. Xxx 000
|
||
|
Xxxxxxxx
Xxxx, Xxxxxxxx 00000-0000
|
||
| Fax No.: 000-000-0000 | ||
| E-mail: xxxxxxx@xxxxxxxxxxxx.xxx | ||
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Counterpart
Signature Page to Voting Agreement of
Cadence
Resources Corporation
Dated
October ,
2005
| [Name of Stockholder]: | ||
| _________________________________________________ | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Address:_________________________________________________ | |
| ________________________________________________________ | |
| Fax No.__________________________________________________ | |
| E-mail: __________________________________________________ | |
| Date: October ___, 2005 |
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EXHIBIT
1
THIS
ADOPTION AGREEMENT (“Adoption Agreement”) is executed by the undersigned (the
“Transferee”) pursuant to the terms of that certain Voting Agreement dated as of
October ___, 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__.
| NAME OF TRANSFEREE: | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Address: _________________________________________________ | |
| Fax No. __________________________________________________ | |
| E-mail: ___________________________________________________ |
Accepted
and Agreed:
CADENCE
RESOURCES CORPORATION,
Individually
and as Attorney-in-Fact for the Stockholders
By:
_________________________
Name:
Title:
EXHIBIT
2
CONSENT
OF SPOUSE
I,
____________, spouse of __________, acknowledge that I have read the Voting
Agreement, dated as of October ___,
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.
This
Consent of Spouse shall not be deemed to confer or convey to the undersigned
any
rights in my spouse's shares of capital stock that do not otherwise exist
by
operation of law or by express written agreement with my spouse.
Dated: October
, 2005
Signature
Print
Name of Stockholder’s Spouse
