AMENDED
& RESTATED VOTING AGREEMENT
This
Amended & Restated Voting Agreement (this “Agreement”) is made as of March
27, 2009 by and among GCA I Acquisition Corp., a Delaware corporation (“Parent”)
and Robert A. Walker, a principal stockholder of Bixby Energy Systems, Inc., a
Delaware corporation (the “Company”)(the “Company Principal
Stockholder”).
WHEREAS,
Parent and the Company Principal Stockholder entered into a certain voting
agreement as of May 7, 2008 (the “Original Voting Agreement”), which Original
Voting Agreement Parent and Company Principal Stockholder now wish to amend and
restate in its entirety in the form of this Agreement, which shall for all
purposes be deemed to supercede the Original Voting Agreement;
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Bixby
Energy Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger Sub”) and the Company are entering into an Amended &
Restated Agreement and Plan of Merger (the “Merger Agreement”), pursuant to
which Merger Sub will be merged with and into the Company, and the Company shall
be the surviving corporation following the merger (the “Merger”);
WHEREAS,
as of the date hereof, the Company Principal Stockholder is a Beneficial Owner
(as defined below) of the Subject Shares (as defined below); and
WHEREAS,
in order to induce Parent to enter into the Merger Agreement, the Company
Principal Stockholder has agreed to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and of the covenants and
agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties agree as follows:
1. Certain
Definitions.
(a) “Beneficially Own” or “Beneficial
Owner” with respect to any securities means having “beneficial ownership”
as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended.
(b) “Company Capital Stock” means,
jointly, the Company Common Stock and the Company Preferred Stock.
(c) “Company Common Stock” means
shares of common stock, par value $0.001 per share, of the Company.
(d) “Company Options and Other
Rights” means options, warrants and other rights to acquire, directly or
indirectly, shares of Company Capital Stock.
(e) “Company Preferred Stock”
means shares of Series A convertible preferred stock, par value $0.001 per
share, of the Company.
(f) “Expiration Date” means the
earlier to occur of (i) the Effective Time (as defined in the Merger Agreement)
or (ii) the date on which the Merger Agreement is terminated pursuant to its
terms.
(g) “Subject Shares” means (i) all
shares of Company Capital Stock Beneficially Owned by the Company Principal
Stockholder as of the date of this Agreement, and (ii) all additional shares of
Company Capital Stock of which the Company Principal Stockholder acquires
Beneficial Ownership during the period from the date of this Agreement through
the Expiration Date.
2. Voting.
(a) The
Company Principal Stockholder hereby represents that it is an “accredited
investor” as such term is defined within Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended.
(b) The
Company Principal Stockholder hereby agrees that, prior to the Expiration Date,
at any meeting of the stockholders of the Company, however called, and in any
written action by consent of stockholders of the Company, unless otherwise
directed in writing by Parent, the Company Principal Stockholder shall cause to
be counted as present thereat for purposes of establishing a quorum and, subject
only to Parent's compliance with applicable securities laws, shall vote, or
cause to be voted, any and all Subject Shares as of the record date of such
meeting or written consent:
(i) for
the adoption and approval of the Merger Agreement and the terms thereof, in
favor of each of the other actions contemplated by the Merger Agreement,
including without limitation the Merger and the amendment to the Company's
certificate of incorporation relating to the automatic conversion of the Company
Preferred Stock upon consummation of the Merger, and in favor of any action in
furtherance of any of the foregoing;
(ii) against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement;
and
(iii) against
the following actions (other than the transactions contemplated by the Merger
Agreement including without limitation the Merger and the amendment to the
Company's certificate of incorporation relating to the automatic conversion of
the Company Preferred Stock upon consummation of the Merger): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company; (B)
any sale, lease, sublease, license, sublicense or transfer of a material portion
of the rights or other assets of the Company or any subsidiary of the Company;
(C) any reorganization, recapitalization, dissolution or liquidation of the
Company or any subsidiary of the Company; (D) any change in the individuals who
serve as members of the board of directors of the Company; (E) any amendment to
the Company's certificate of incorporation or bylaws; (F) any material change in
the capitalization of the Company or the Company's corporate structure; and (G)
any other action which is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or adversely affect the Merger or
any of the other transactions contemplated by the Merger Agreement or this
Agreement.
(c) No
provision contained in this Agreement shall prohibit the Company Principal
Stockholder from voting in his capacity as a director of the Company in any
manner whatsoever.
(d) Prior to the Expiration Date, the
Company Principal Stockholder shall not enter into any other agreement or
understanding with any third party requiring him to vote in his capacity as a
stockholder or give instructions in any manner inconsistent with clause “(i),”
clause “(ii)” or clause “(iii)” of Subsection (b) of this Section 2 of this
Agreement.(e) The Company Principal Stockholder hereby waives and agrees
not to exercise or seek to exercise any applicable “appraisal rights” under the
Delaware General Corporation Law with respect to the Subject Shares in
connection with the Merger and the Merger Agreement.
3. Proof of
Vote/Consent. In the event that approval by the Company stockholders of
the Merger, the Merger Agreement, and the amendment to the Company's certificate
of incorporation relating to the automatic conversion of the Company Preferred
Stock upon consummation of the Merger is not obtained, then, and in such event,
the Company Principal Stockholder shall promptly provide to Parent evidence in
form reasonably satisfactory to Parent of the fulfillment of his obligations
under this Agreement.
4. Representations
and Warranties of Stockholder. The Company Principal Stockholder
represents and warrants to Parent as follows:
(a) As
of the date of this Agreement and at all times through the Expiration
Date:
(i) He
is the Beneficial Owner (free and clear of any encumbrances or restrictions) of
the outstanding shares of Company Common Stock set forth under the heading
“Shares of Company Common Stock Beneficially Owned”, on the signature page
hereof;
(ii) He
is the Beneficial Owner (free and clear of any encumbrances or restrictions) of
the outstanding shares of Company Preferred Stock set forth under the heading
“Shares of Company Preferred Stock Beneficially Owned”, on the signature page
hereof;
(iii) He
is the Beneficial Owner (free and clear of any encumbrances or restrictions) of
the outstanding Company Options and Other Rights set forth under the heading
“Company Options and Other Rights Beneficially Owned” on the signature page
hereof; and
(iv) He
does not directly or indirectly Beneficially Own any shares of Company Capital
Stock or Company Options or Other Rights or other securities of the Company,
other than the shares of Company Capital Stock and Company Options and Other
Rights set forth on the signature page hereof.
(b) The
Company Principal Stockholder has the legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement has been duly executed and delivered by the Company Principal
Stockholder, and upon its execution and delivery by Parent, will constitute a
legal, valid and binding obligation of the Company Principal Stockholder,
enforceable against him in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors rights generally, and the
availability of injunctive relief and other equitable remedies.
(c) The
execution, delivery and performance by the Company Principal Stockholder of this
Agreement will not (i) conflict with, require a consent, waiver or approval
under, or result in a breach of or default under, any of the terms of any
contract, commitment or other obligation (written or oral) to which such Company
Principal Stockholder is a party or by which any of his assets may be
bound.
(d) (d)
No filing with, and no permit, authorization, consent or approval of, any state
or federal public body or authority is necessary for the execution of this
Agreement by the Company Principal Stockholder and the consummation by Company
Principal Stockholder of the transactions contemplated hereby.
5. Covenants of Company
Principal Stockholder. The Company Principal Stockholder
covenants and agrees for the benefit of Parent that, until the Expiration Date,
he shall not:
(a) sell,
transfer, pledge, hypothecate, encumber, assign, tender or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, hypothecation, encumbrance, assignment,
tender or other disposition of, (i) any Subject Shares or any interest therein,
or (ii) any Company Options and Other Rights or any interest therein; provided,
however, that Stockholder may convert, exercise or exchange Company Options and
Other Rights into or for shares of Company Capital Stock in which event such
shares of Company Capital Stock shall become and be deemed Subject Shares
subject to all the terms and conditions of this Agreement;
(b) acquire
any shares of the stock of Parent except pursuant to existing Company Options
and Other Rights or unless such shares shall become subject to the terms of this
Agreement;
(c) grant
any powers of attorney or proxies or consents in respect of any of the Subject
Shares, deposit any of such Subject Shares into a voting trust, or enter into a
voting agreement with respect to any of such Subject Shares; or
(d) take
any other action with respect to the Subject Shares that would in any way
restrict, limit or interfere with the performance of Company Principal
Stockholder's obligations hereunder or the transactions contemplated hereby and
the Merger Agreement.
6. Adjustments; Additional
Shares. In the event (a) of any stock dividend, stock split,
merger, recapitalization, reclassification, combination, exchange of shares or
the like of the capital stock of the Company on, of or affecting the Subject
Shares, or (b) that Company Principal Stockholder shall become the Beneficial
Owner of any additional shares of Company Capital Stock or other securities
entitling the holder thereof to vote or give consent with respect to the matters
set forth in Section 2(b), then the terms of this Agreement shall apply to the
shares of Company Capital Stock or other instruments or documents held by
Company Principal Stockholder immediately following the effectiveness of the
events described in clause (a) or Company Principal Stockholder becoming the
Beneficial Owner thereof as described in clause (b), as though, in either case,
they were Subject Shares hereunder.
7. Amendments and Waivers. Any provision
of this Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any
right 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. To the maximum
extent permitted by law, (a) no waiver that may be given by a party shall be
applicable except in the specific instance for which it was given and (b) no
notice to or demand on one party shall be deemed to be a waiver of any
obligation of such party or the right of the party giving such notice or demand
to take further action without notice or demand.
8. Assignment. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
parties. Subject to the foregoing, all of the terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective executors, heirs, personal representatives, successors and
assigns.
9. Entire Agreement.
This Agreement and the documents, instruments and other agreements specifically
referred to herein or delivered pursuant hereto, set forth the entire
understanding of the parties with respect to the subject matter hereof. Any and
all previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement.
10. Notices. Any
notice, request, demand, waiver, consent, approval or other communication which
is required or permitted hereunder shall be in writing and shall be deemed given
(a) on the date established by the sender as having been delivered personally;
(b) on the date delivered by a private courier as established by the sender by
evidence obtained from the courier; (c) on the date sent by facsimile, with
confirmation of transmission, if sent during normal business hours of the
recipient, if not, then on the next business day; or (d) on the fifth day after
the date mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications, to be valid, must be addressed as
follows:
If to
Parent, to:
GCA
I Acquisition Corp.
115 East
57th Street, Suite 1006
New York,
New York 10022
Attn:
Michael M. Membrado
Facsimile:
646-486-9771
With a
required copy to:
M.M.
Membrado, PLLC
115 East
57th Street, Suite 1006
New York,
New York 10022
Attn:
Michael M. Membrado
Facsimile:
646-486-9771
If to
Company Principal Stockholder:
Robert A.
Walker
c/o Bixby Energy Systems,
Inc.
6893
139th Lane NW
Ramsey,
MN 55303
Facsimile:
763-428-7903
With a
required copy to:
Davisson
& Associates, PA
4124
Quebec Avenue North, Suite 306
Minneapolis,
MN 55427
Attn:
Peder Davisson, Esq.
Facsimile:
763-355-5679
or to
such other address or to the attention of such person or persons as the
recipient party has specified by prior written notice to the sending party (or
in the case of counsel, to such other readily ascertainable business address as
such counsel may hereafter maintain). If more than one method for sending notice
as set forth above is used, the earliest notice date established as set forth
above shall control.
11. Captions. All captions contained in
this Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
12. Severability; Enforcement.Any
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Specific Performance. The Company
Principal Stockholder acknowledges that the agreements contained in this
Agreement are an integral part of the transactions contemplated by the Merger
Agreement, and that, without these agreements, Parent would not enter into the
Merger Agreement, and acknowledges that damages would be an inadequate remedy
for any breach by the Company Principal Stockholder of the provisions of this
Agreement. Accordingly, the Company Principal Stockholder agrees that his
obligations hereunder shall be specifically enforceable and he shall not take
any action to impede the other from seeking to enforce such right of specific
performance.
14. Consent to Jurisdiction. Each party
irrevocably submits to the exclusive jurisdiction of (a) New York County, New
York, and (b) the United States District Court for the Southern District of New
York, for the purposes of any action, suit or proceeding arising out of this
Agreement or any transaction contemplated hereby. Each party agrees to commence
any such action, suit or proceeding either in the United States District Court
for the Southern District of New York or if such action, suit or proceeding may
not be brought in such court for jurisdictional reasons, in the Supreme Court
sitting in New York County (including its Appellate Division). Each party
further agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction in this Section
14. Each party irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (i) the United States District Court
for the Southern District of New York, or (ii) the Supreme Court sitting in New
York County (including its Appellate Division), and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SUCH PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
15. Governing Law. This Agreement shall be
governed by and interpreted and enforced in accordance with the laws of the
State of New York, without giving effect to any choice of law or conflict of
laws rules or provisions (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York, except to the extent that the voting of the
Subject Shares is subject to the corporate law of the State of
Delaware.
[SIGNATURES
ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto all
as of the day and year first above written.
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GCA
I ACQUISITION CORP.
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By:
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/s/ Michael M.
Membrado
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Name: Michael
M. Membrado
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Title: President
and Chief Executive Officer
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COMPANY
PRINCIPAL STOCKHOLDER:
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/s/ Robert A.
Walker
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ROBERT
A. WALKER
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Number
of shares of Company Common Stock Beneficially Owned:
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1,765,002 |
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Number
of shares of Company Preferred Stock Beneficially Owned:
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0 |
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Number
of Company Options and Other Rights Beneficially Owned:
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1,190,000 |
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