REDEMPTION EXTENSION VOTING AGREEMENT
THIS
REDEMPTION EXTENSION VOTING AGREEMENT (this “Agreement”), dated as of October
__, 2005, is entered into by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Co., a Utah corporation
(the “Company”), and Knowledge Capital Investment Group, a Texas general
partnership (“Shareholder”). Capitalized terms used herein but not defined shall
have the meaning assigned to them in the Amended and Restated Shareholders
Agreement between the Company and Shareholder, dated March 8, 2005, and the
Amended and Restated Articles of Incorporation of the Company, dated March
4,
2005 (the “Amended Articles of Incorporation”).
WHEREAS,
Section
7(a) of the Amended Articles of Incorporation of the Company provides that
the
Company may, unless the Company and any holder or holders of Senior Preferred
otherwise agree, redeem shares of Senior Preferred only (i) during the time
period commencing on March 8, 2005 and
ending on March 8, 2006 (the
“Initial Redemption Period”), and (ii) after the fifth anniversary of the
expiration of the Initial Redemption Period (at prices and in accordance
with
the terms and conditions stated in Section 7); and
WHEREAS,
Shareholder
and the Company believe it is in the best interests of all shareholders of
the
Company to amend Section C.7(a) of the Articles by adopting the amendment
attached hereto as Exhibit B (the “Proposed Amendment”); and
WHEREAS,
as
of the
date hereof, Shareholder owns beneficially or of record or has the power
to
vote, or direct the vote of, the number of shares of Series A Preferred
of
the Company and the number of shares of Common Stock of the Company as set
forth
opposite Shareholder’s name on Exhibit A hereto (all such Common Stock and
Series A Preferred and any shares of Common Stock or Series A Preferred of
which
ownership of record or beneficially or the power to vote is hereafter acquired
by Shareholder prior to the termination of this Agreement being referred
to
herein as the “Shares”);
NOW,
THEREFORE,
in
consideration of the premises and of the mutual agreements and covenants
set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Transfer
of Shares.
Shareholder shall not, during the period commencing on the date hereof and
terminating at the conclusion of the next duly convened meeting of the Company’s
shareholders (the “Shareholder Meeting”), directly or indirectly, (a) sell,
pledge, encumber, assign, transfer or otherwise dispose of any or all of
Shareholder’s Shares or any interest in such Shares (other than pursuant to a
redemption by the Company), (b) deposit any Shares or any interest
in such
Shares into a voting trust or enter into a voting agreement or arrangement
with
respect to any Shares or grant any proxy with respect thereto (other than
as
contemplated herein) or (c) enter into any contract, commitment, option
or
other arrangement or undertaking with respect to the direct or indirect
acquisition or sale, assignment, pledge, encumbrance, transfer or other
disposition of any Shares.
2. Agreement
to Vote.
During
the period commencing on the date hereof and terminating at the conclusion
of
the Shareholder Meeting, Shareholder, solely in Shareholder’s capacity as a
shareholder of the Company, agrees to vote (or cause to be voted) all of
the
Shares at any such meeting or any adjournment thereof, and in any action
by
written consent of the shareholders of the Company, (i) in favor of
the
adoption of the Proposed Amendment, (ii) against any action that could
reasonably be expected to delay or compromise approval of the Proposed
Amendment, (iii) against any action or agreement that could reasonably be
expected to result in the Proposed Amendment not being adopted, (iv) in
favor of any other matter reasonably relating to the adoption of the Proposed
Amendment.
3. Entire
Agreement; Amendments.
This
Agreement, the Amendment Agreement and the other agreements referred to herein
and therein constitute the entire agreement of the parties and supersede
all
prior agreements and undertakings, both written and oral, between the parties
with respect to the subject matter hereof. This Agreement may not be amended
or
modified except in an instrument in writing signed by, or on behalf of, the
parties hereto.
4. Assignment.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and permitted assigns;
provided, however, that any assignment, delegation or attempted transfer
of any
rights, interests or obligations under this Agreement by Shareholder without
the
prior written consent of the Company shall be void.
5. Fees
and Expenses.
Except
as otherwise provided herein or in the Amendment Agreement, all costs and
expenses (including, without limitation, all fees and disbursements of counsel,
accountants, investment bankers, experts and consultants to a party) incurred
in
connection with this Agreement and the transactions contemplated hereby shall
be
paid by the party incurring such costs and expenses.
6. Notices.
All
notices, requests, claims, demands and other communications hereunder must
be in
writing and will be given or made (and will be deemed to have been duly given
or
made upon receipt) by delivery in person, by courier services, by cable,
by fax,
by telegram, by telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given
in
accordance with this Section 6):
If
to the
Company:
▇▇▇▇▇▇▇▇
▇▇▇▇▇ Co.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Chairman
of the Special Committee of the Board of Directors
c/o
Peterson Partners LP
▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to :
▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to
Shareholder to:
Knowledge
Capital Investment Group
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
7. Headings.
The
headings contained in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this
Agreement.
8. Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and
effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible to the fullest extent permitted by applicable law in an acceptable
manner.
9. Specific
Performance.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement is not performed in accordance with its specific
terms or is otherwise breached. Shareholder agrees that, in the event of
any
breach or threatened breach by Shareholder of any covenant or obligation
contained in this Agreement, the Company shall be entitled (in addition to
any
other remedy that may be available to it, including monetary damages) to
seek
and obtain (a) a decree or order of specific performance to enforce
the
observance and performance of such covenant or obligation, and (b) an
injunction restraining such breach or threatened breach. Shareholder further
agrees that neither the Company nor any other party shall be required to
obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 9, and Shareholder
irrevocably waives any right he, she or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
10. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Utah applicable to contracts executed in and to be performed
in
that state without regard to any conflicts of laws.
11. No
Waiver.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The Company shall not be deemed to
have
waived any claim available to it arising out of this Agreement, or any right,
power or privilege hereunder, unless the waiver is expressly set forth in
writing duly executed and delivered on behalf of the Company. The rights
and
remedies herein provided shall be cumulative and not exclusive of any rights
or
remedies provided by law.
12. Counterparts.
This
Agreement may be executed in two 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.
[Signature
page follows.]
IN
WITNESS WHEREOF, each of the Company and Shareholder has executed this Voting
Agreement or has caused this Voting Agreement to be executed by their respective
duly authorized officers as of the date first written above.
COMPANY:
▇▇▇▇▇▇▇▇
▇▇▇▇▇ CO.
|
By:
|
||
|
Name:
|
||
|
Title:
|
SHAREHOLDER:
KNOWLEDGE
CAPITAL INVESTMENT GROUP
By: Inspiration
Investments Partners III, L.P.
Its: Manager
By: Inspiration
Investments GenPar III, L.P.
Its: General
Partner
By: Hampstead
Associates, Inc.
Its: Managing
General Partner
|
By:
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
A
SHARES
OWNED
|
Name
of Shareholder
|
Number
of Shares of Common Stock Owned Beneficially and of Record
|
Number
and Type of Shares of Series A Preferred Owned Beneficially and
of
Record
|
Number
and Type of Shares of Common Stock and Series A Preferred Issuable
upon
Exercise of Options, Warrants and Other Rights to Acquire Such
Stock
|
|
Knowledge
Capital Investment Group
|
1,015,002
|
2,111,438
|
0(1)
|
(1) Excludes
Common Stock issuable upon exercise of Series A Preferred.
EXHIBIT
B
AMENDMENT
TO AMENDED AND RESTATED ARTICLES OF INCORPORATION OF ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Amended and Restated Articles of Incorporation of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Co., dated
March 4, 2005, are hereby amended by deleting Section C.7(a) in its entirety
and
substituting the following in place thereof:
Section
C.7
(a)
Redemption
Right.
The
shares of Senior Preferred will not be redeemable, except as otherwise agreed
between the Company and any holder or holders of Senior Preferred and except
that:
(i)
during the period beginning on March 8, 2005 and ending on March 8, 2006
(the
“Initial Redemption Period”), the Company may, upon 15 business days prior
notice to the holders of Senior Preferred, redeem all or any portion of the
then-outstanding Senior Preferred at 100% of the then-applicable Liquidation
Price plus accrued and unpaid dividends to the date of payment; and
(ii) provided
it has redeemed during the period from July 15, 2005 through the end of the
Initial Redemption Period at least 400,000 shares of Senior Preferred Stock,
the
Company shall have the right during the period beginning on March 9, 2006
and
ending on December 31, 2006 (the “Second Redemption Period”), upon 15 business
days prior notice to the holders of Senior Preferred, to redeem all or any
portion of the then-outstanding Senior Preferred at 100% of the then-applicable
Liquidation Price plus accrued and unpaid dividends to the date of payment;
and
(iii)
provided the Company has redeemed during the period beginning on July 15,
2005
through the end of the Second Redemption Period at least 800,000 shares of
Senior Preferred Stock, the Company shall have the right during the period
beginning on January 1, 2007 and ending on December 31, 2007 (the “Third
Redemption Period,” each of the Initial Redemption Period, the Second Redemption
Period and the Third Redemption Period being called a “Redemption Period”), upon
15 business days prior notice to the holders of Senior Preferred, to redeem
all
or any portion of the then-outstanding Senior Preferred at 100% of the
then-applicable Liquidation Price plus accrued and unpaid dividends to the
date
of payment; and
(iv)
beginning on the fifth anniversary of the expiration of the last Redemption
Period during which the Company shall have the right to redeem Senior Preferred
Stock based on the Company’s redemption of Senior Preferred pursuant to subparts
(i) through (iii) of this Section 7(a), the Company may, upon 15 business
days
prior notice to the holders of Senior Preferred, redeem all or any portion
of
the then-outstanding Senior Preferred at 101% of the then-applicable Liquidation
Price plus accrued and unpaid dividends to the date of payment.
Any
partial redemption effected pursuant to this Section 7 shall be made on a
pro-rata basis among the holders of Senior Preferred in proportion to the
shares
of Senior Preferred then held by them. Notwithstanding anything to the contrary,
the mandatory conversion of shares of Series A Preferred into shares of Series
B
Preferred pursuant to Section 8 hereof may occur at any time during
the
notice periods set forth in clauses (i) through (iv) of this
Section 7(a).