MEDIQUIK SERVICES, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into
as of the 29th day of August, 2000, by and among MEDIQUIK SERVICES, INC., a
Delaware corporation (the "Company"), those certain existing holders of the
Company's Common Stock listed on EXHIBIT A hereto (the "Founders"), and
MIRAQUEST VENTURES LLC, an Idaho limited liability company (the "Investor").
R E C I T A L S:
A. The Founders are the beneficial and record owners of the
shares of Common Stock of the Company set forth opposite their names in
EXHIBIT A.
B. The Company proposes to sell 7,048,996 shares of its Common
Stock and 513,266 shares of its Series A Preferred Stock to the Investor
pursuant to a Stock Purchase Agreement.
C. In connection with the consummation of the issue and sale
of the stock pursuant to the Stock Purchase Agreement, the Founders and the
Investor have agreed to provide for the future voting of their shares of the
Company's capital stock as set forth below.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. VOTING
1.1 AGREEMENT OF FOUNDER AND INVESTOR.
(a) The Founders each agree to vote all shares of voting
capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof, and any and all other
securities of the Company legally or beneficially acquired by each of the
Founders after the date hereof (hereinafter collectively referred to as the
"Founder Shares") subject to, and in accordance with, the provisions of this
Agreement.
(b) The Investor agrees to vote all shares of voting
capital stock of the Company registered in its name or beneficially owned by it
as of the date hereof, and any and all other securities of the Company legally
or beneficially acquired by the Investor after the date hereof (hereinafter
collectively referred to as the "Investor Shares") subject to, and in accordance
with, the provisions of this Agreement.
1.2 ELECTION OF DIRECTORS. The number of authorized directors
of the Company will be, as of the date of this Agreement, set at seven (7). At
each annual meeting of the stockholders of the Company, or at any meeting of the
stockholders of the Company at which members of the Board are to be elected, or
whenever members of the Board are to be elected by written consent, the Founders
agree to vote or act with respect to their Founder Shares and the Investor
agrees to vote or act with respect to its Investor Shares so as to elect (a) two
(2) representatives nominated by the Investor, and (b) five (5) representatives
nominated by the Founders. In the event of any termination, removal or
resignation of any director, the parties hereto shall take all actions necessary
and appropriate to cause such vacancy to be filled in the manner by which such
director was elected pursuant to the terms of this Agreement.
1.3 RIGHTS AS SHAREHOLDER. Except as provided by this
Agreement, each Founder shall exercise the full rights of a shareholder with
respect to the Founder Shares, and the Investor shall exercise the full rights
of a shareholder with respect to the Investor Shares.
1.4 NO REVOCATION. The voting agreements contained herein are
coupled with an interest and may not be revoked during the term of this
Agreement.
SECTION 2. TERMINATION
This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a) the date as of which the parties hereto terminate
this Agreement by written consent of holders of a majority in interest of the
Investor Shares and the Founder Shares;
(b) when the Company shall (i) sell, convey or otherwise
dispose of all or substantially all of its property or business or merge or
consolidate with any other corporation (other than a wholly-owned subsidiary
corporation) where the stockholders of the Company own less than fifty percent
(50%) of the voting power of the surviving entity after such merger or
consolidation or (ii) effect any other transaction or series of related
transactions in which more than fifty percent (50%) of the voting power of the
Company is disposed of; provided, however, that this subsection (c) shall not
apply to a merger effected exclusively for the purpose of changing the domicile
of the Company; or
(c) August 29, 2001.
SECTION 3. MISCELLANEOUS
3.1 BINDING PROVISIONS. The provisions of this Agreement shall
be binding upon the successors in interest to any of the Founder Shares or
Investor Shares.
3.2 SPECIFIC PERFORMANCE. The parties hereto hereby declare
that it is impossible to measure in money the damages which will accrue to a
party hereto or to their heirs, personal representatives, or assigns by reason
of a failure to perform any of the obligations under
this Agreement and agree that the provisions of this Agreement shall be
specifically enforceable. If any party hereto or his heirs, personal
representatives, or assigns institutes any action or proceeding to
specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein
that such party or such personal representative has an adequate remedy at
law, and such person shall not offer in any such action or proceeding the
claim or defense that such remedy at law exists.
3.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Idaho. Each of the parties hereto
hereby submits to the exclusive jurisdiction of the United States District Court
for the District of Idaho and of any Idaho state court sitting in the County of
Ada, State of Idaho, for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
3.4 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded, and (c)
the balance of the Agreement shall be enforceable in accordance with its terms.
3.5 AMENDMENT. This Agreement may be amended or modified and
any term hereof may be waived only by an instrument in writing signed by the
Company, the holders of a majority of the Investor Shares and the holders of a
majority of the Founder Shares. Any amendment or waiver effected in accordance
with this Section 4.5 shall be binding upon the Company, the Investor, and any
holder of Founder Shares, and each of their respective successors and assigns.
3.6 WAIVER. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any party hereto, upon any breach,
default or noncompliance by any party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or any similar
breach, default or noncompliance thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or charter on any
party's part of any breach, default or noncompliance under this Agreement or any
waiver on such party's part of any provisions or conditions of this Agreement
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement, by law, or
otherwise afforded to any party hereunder, shall be cumulative and not
alternative.
3.7 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified; (ii) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient;
if not, then on the next business day, (iii) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage
prepaid, or (iv) one (1) 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 party to be notified at the
address as set forth on the Signature Page hereto, or at such other address
as such party may designate by ten (10) days advance written notice to the
other parties hereto.
3.8 ATTORNEYS' FEES. In the event that any dispute among the
parties to this Agreement should result in litigation, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including, without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
3.9 CONSTRUCTION. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. All pronouns contained herein and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties hereto may require:
3.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Voting Agreement as of the day and year first written above.
COMPANY:
MEDIQUIK SERVICES, INC.
By /s/ Grant Gables
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Grant Gables, President
ADDRESS FOR NOTICE:
4295 MediQuik Services, Inc.
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FOUNDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
ADDRESS FOR NOTICE:
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/s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
ADDRESS FOR NOTICE:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THE ▇▇▇▇▇▇ GROUP
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name
Title General Manager
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ADDRESS FOR NOTICE:
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THE ▇▇▇▇▇▇ MANAGEMENT GROUP, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name
Title General Manager
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ADDRESS FOR NOTICE:
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/s/ Grant M. Gables
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Grant M. Gables
ADDRESS FOR NOTICE:
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
JACODY FINANCIAL, INC.
By /s/ ▇▇▇ ▇▇▇▇▇▇
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Name ▇▇▇ ▇▇▇▇▇▇
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Title President
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ADDRESS FOR NOTICE:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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ADDRESS FOR NOTICE:
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INVESTOR:
MIRAQUEST VENTURES LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
ADDRESS FOR NOTICE:
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LIST OF FOUNDERS
No. of Shares of
Name of Founder Common Stock
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 333,784
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 268,040
The ▇▇▇▇▇▇ Group 214,432
The ▇▇▇▇▇▇ Management Group, Inc. 159,752
Grant M. Gables 523,213
Jacody Financial, Inc. 424,543
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 136,165