EXHIBIT 10.6
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Voting Agreement") is entered into effective as
of June 18, 2003, by and between Xxxxx X. Xxxxx ("Xxxxx"), and AspenBio, Inc., a
Colorado corporation (the "Company").
WHEREAS, Xxxxx owns 4,246,757 shares of common stock, no par value per
share of the Company (the "Common Stock");
WHEREAS, Xxxxx understands that the Company needs additional financing and
has agreed to restrictions on the voting and transfer of 2,250,000 shares of the
Common Stock (the "Restricted Shares") in order to facilitate such financing;
and
WHEREAS, for valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Xxxxx and the Company have agreed to enter into this
Voting Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Voting of Restricted Shares
x. Xxxxx agrees to vote the Restricted Shares in the same proportion
that all other shares of the outstanding Common Stock (including the other
shares of Common Stock owned by Xxxxx) are voted at any duly called meeting
of the shareholders of the Company. By way of example, if 30% of the shares
of Common Stock vote in favor of a resolution and 70% of the shares of
Common Stock oppose such resolution, Xxxxx shall vote the Restricted Shares
in the same proportion (i.e., 675,000 in favor and 1,575,000 against). Upon
request of the Company, Xxxxx shall grant a proxy for this purpose to Xxxx
Xxxxxxxxxx, or if Xxxx Xxxxxxxxxx is not then a member of the Company's
Board of Directors, is unable or unwilling to serve, then Xxxxx shall xxxxx
such proxy to a person designated by a majority of the Company's Board of
Directors (the "Board").
2. Transfer of Restricted Shares
x. Xxxxx agrees not, directly or indirectly, to sell, offer to sell,
contract to sell, assign, pledge, hypothecate, encumber or otherwise
transfer, or enter into any contract, option or other arrangement or
understanding with respect to the sale, assignment, pledge or other
disposition of (collectively, a "Transfer") any rights with respect to the
Restricted Shares except as expressly provided herein. The foregoing
restriction has been expressly agreed to preclude Xxxxx from engaging in
any hedging or other transaction during the term of this Voting Agreement
that is designed to or reasonably expected to lead to or result in a
Transfer of the Restricted Shares. Such prohibited hedging or other
transaction would include, without limitation, any short sale (whether or
not against the box) or any purchase, sale, or grant of any right
(including, without limitation, any put or call option) with respect to the
Restricted Shares or with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any
significant part of its value from the Restricted Shares.
x. Xxxxx also agrees and consents to the entry of stop transfer
instructions with the Company's Transfer Agent against the Transfer of the
Restricted Shares except in compliance with the terms and conditions of
this Voting Agreement. .
c. In the event any Restricted Shares are subject to any involuntary
transfer, whether by reason of death, bankruptcy or divorce proceedings or
otherwise, the transferee of such Restricted Shares shall take such
Restricted Shares subject to this Voting Agreement. Any purported transfer
of any Restricted Shares that is not in accordance with this Voting
Agreement shall be null and void, and shall not operate to transfer any
right, title or interest in such Restricted Shares to the purported
transferee. Xxxxx agrees that the Company shall not cause or permit the
transfer of any Restricted Shares to be made on the Company's books unless
the transfer is permitted by this Voting Agreement and has been made in
accordance with its terms.
3. Representations, Warranties and Covenants of Xxxxx. Xxxxx represents and
warrants to, and agrees with, the Company that:
x. Xxxxx now owns, and will at all times up to the termination of this
Voting Agreement, continue to own, the Restricted Shares free and clear of
any liens or encumbrances, and, except with respect to that certain
Shareholder Agreement by and between Xxxxx, Cambridge Holdings, Ltd. and
the Company dated December 28, 2001, has not, prior to or on the date of
this Voting Agreement, executed or delivered any proxy or entered into any
other voting agreement or similar arrangement other than one which has
expired or terminated prior to the date hereof.
x. Xxxxx has the full power and capacity to execute, deliver and
perform this Voting Agreement, which has been duly executed and delivered
by, and evidences the valid and binding obligation of Xxxxx enforceable in
accordance with its terms.
4. Price Gateways. Notwithstanding anything contained herein to the
contrary, at such time as the closing price of the Common Stock (OTCBB:APNB) on
the OTC Bulletin Board, or such other market as the Common Stock is then
publicly traded, equals or exceeds each price target (the "Gateway Price") set
forth on Schedule A hereto for a period of 20 consecutive trading days, a
corresponding number of the Restricted Shares set forth on Schedule A (the
"Released Shares") shall be released from the restrictions of Sections 1 and 2
herein.
5. Term and Termination. This Agreement shall continue unti1 15 years from
the date hereof unless earl1er terminated due to any of the following events.
a. On October 31, 2003, if the Company has not received gross proceeds
of at least $1 million from the sale of the Company's securities during the
period from June 17, 2003 through October 31, 2003 (the "2003 Private
Placement");
b. At such time as the holders of a majority of the then issued and
outstanding shares of the Common Stock vote or consent to the termination
of this Voting Agreement, it being understood that the Restricted Shares or
any other shares of Common Stock owned of record or beneficially by Xxxxx
shall not be included in any vote or consent and shall not be inc1uded in a
calculation of the majority of the then issued and outstanding shares;
c. At such time as a majority of the members of the Board vote in
favor of the termination of this Voting Agreement, it being understood that
Xxxxx shall. not be allowed to participate in such vote; or
d. At such time as Xxxxx can demonstrate to the reasonable
satisfaction of the Board that all persons who purchased shares in the 2003
Private Placement have sold all of the shares that such persons purchased
in the 2003 Private Placement.
6. Legend. At the Company's request, Xxxxx shall cause stock certificates
representing the Restricted Shares to be delivered to the Company. The Company
may reissue such certificates to reflect the Restricted Shares and, in addition
to any other required legends on such certificates, imprint or otherwise place
On certificates representing the Restricted Shares the following restrictive
legend (the "Legend"): ...
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS AND CONDITIONS OF A VOTING AGREEMENT DATED JUNE
18, 2003 WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING AND
TRANSFER OF THE SHARES REPRESENTED HEREBY. COPY OF SUCH
VOTING AGREEMENT IS ON FILE AT THE COMPANY'S PRINCIPAL PLACE
OF BUSINESS AND WILL BE FURNISHED TO THE RECORD HOLDER OF
THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS. NO TRANSFER OF
THE SHARES REPRESENTED BY THIS CERTIFICATE WILL BE EFFECTIVE
UNLESS THE TERMS AND CONDITIONS OF THE VOTING AGREEMENT HAVE
BEEN COMPLIED WITH IN FULL AND NO PERSON MAY REQUEST THE
COMPANY TO RECORD THE TRANSFER OF ANY SHARES IF SUCH
TRANSFER IS IN VIOLATION OF SUCH VOTING AGREEMENT.
7. Other Rights. Except as provided by this Voting Agreement, Xxxxx shall
have and shall be entitled to exercise the full rights of a holder of capital
stock of the Company with respect to the Restricted Shares.
8. Miscellaneous.
a. Specific Performance. Xxxxx acknowledges that damages would be an
inadequate remedy for any breach of the provisions of this Voting Agreement
and agrees that the obligations of Xxxxx hereunder shall be specifically
enforceable and Xxxxx shall not take any action to impede the Company nom
seeking to enforce such right of specific performance. Xxxxx agrees that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of his obligations in this Voting Agreement and hereby
agrees to waive in any action for specific performance of any such
obligation, the defense that a remedy at law would be adequate.
b. Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Voting Agreement
shall be in writing and shall be given and shall be deemed to have been
given when personally delivered or three days after being mailed, if mailed
by first c1ass mail, return receipt requested, or one day after being sent
by reputable overnight delivery service, or when receipt is acknowledged,
if sent by confirmed facsimile, telecopy or other electronic transmission
device. Notices, demand and communications to Xxxxx and the Company will,
unless another address is specified in writing, be sent to the address
indicated below, except that notices of change of address shall only be
effective upon receipt:
If to Xxxxx:
Xxxxx X. Xxxxx
0000 X. Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
If to the Company:
AspenBio, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Copies of any notices, demands and communication shall also be sent to:
Xxxx Xxxxxxxxxx
00000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
c. Assignment. This Voting Agreement and all provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither this
Voting Agreement nor any of the rights, interests or obligations hereunder
may be assigned by Xxxxx without the prior written consent of the Company
d. Governing Law. The internal law, without regard for conflicts of
law principals, of the State of Colorado will govern all questions
concerning the construction, validity and interpretation of this Voting
Agreement and the performance of the obligations imposed by this Voting
Agreement.
e. Adjustments. The number and kind of Restricted Shares will be
appropriately increased, decreased or changed without further action if the
Company effects a stock split, stock dividend, or reclassification of the
Common Stock. In. the event of a merger or a consolidation with another
company where the Company is not the surviving entity, the shares or other
consideration of such other company received in exchange for the Restricted
Shares shall thereafter constitute the "Restricted Shares" pursuant to this
Voting Agreement.
f. Amendment: Waiver. This Voting Agreement may not be amended or
waived except, (i) in a writing executed by the party against which such
amendment or waiver is sought to be enforced, and (ii) without the
expressed written consent of the Company. No course of dealing between or
among any persons having any interest in this Voting Agreement will be
deemed effective to modify or amend any part of this Voting Agreement or
any rights or obligations of any person under or by reason of this Voting
Agreement.
g. Review by Xxxxx. Xxxxx has had the opportunity to review this
Voting Agreement with legal counsel and other advisors as Xxxxx deemed
advisable, prior to Xxxxx'x execution of this Agreement, and Xxxxx has not
relied on any advice of Xxxxxx Xxxxx LLP.
h. Counterparts. This Voting Agreement may be executed in one or more
counterparts, anyone of which need not contain the signatures of more than
one party, but all such counterparts taken. together shall constitute one
and the same instrument.
i. Severability. Whenever possible, each provision of this Voting
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Voting Agreement is held
to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such provision or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Voting Agreement.
j. Complete Agreement. This Voting Agreement contains the complete
agreement between the parties hereto with respect to the matters addressed
herein and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
IN WITNESS WHEREOF, the parties hereby have executed this Voting Agreement
as of the date first written above.
ASPENBIO, INC.
By: ____________________________ /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx
Title: Member of the Board of Directors
SCHEDULE A
Release Price Released Shares
------------- ---------------
$ 6.00 450,000
$ 7.00 450,000
$ 8.00 450,000
$ 9.00 450,000
$10.00 450,000
f. Amendment: Waiver. This Voting Agreement may not be amended or
waived except, (i) in a writing executed by the party against which such
amendment or waiver is sought to be enforced, and (ii) without the
expressed written consent of the Company. No course of dealing between or
among any persons having any interest in this Voting Agreement will be
deemed effective to modify or amend any part of this Voting Agreement or
any rights or obligations of any person under or by reason of this Voting
Agreement.
g. Review by Xxxxx. Xxxxx has had the opportunity to review this
Voting Agreement with legal counsel and other advisors as Xxxxx deemed
advisable, prior to Xxxxx'x execution of this Agreement, and Xxxxx has not
relied on any advice of Xxxxxx Xxxxx LLP.
h. Counterparts. This Voting Agreement may be executed in one or more
counterparts, anyone of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one
and the same instrument.
i. Severability. Whenever possible, each provision of this Voting
Agreement wil1 be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Voting Agreement is held
to be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such provision or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Voting Agreement.
j. Complete Agreement. This Voting Agreement contains the complete
agreement between the parties hereto with respect to the matters addressed
herein and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
IN WITNESS WHEREOF, the parties hereby have executed this Voting Agreement
as of the date first written above.
ASPENBIO, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------- ------------------
Name: Xxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx
Title: Member of the Board of Directors
EXTENSION TO VOTING AGREEMENT
-----------------------------
THIS EXTENSION TO VOTING AGREEMENT is entered into effective as of the 31st
day of October, 2003 by and between Xxxxx X. Xxxxx ("Xxxxx") and AspenBio, Inc.,
a Colorado corporation (the "Company").
WHEREAS, the parties entered into a Voting Agreement effective June 18,
2003 (the "Voting Agreeement");
WHEREAS, the parties desire to amend paragraph 5(a) of the Voting Agreement
to provide the Company additional time to complete its private offering of
securities;
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
Paragraph 5(a) of the Voting Agreement hereby is amended to read as
follows:
a. On December 31, 2003, if the Company has not received gross
proceeds of at least $1 million from the sale of the Company's securities
during the period from June 17, 2003 through December 31, 2003 (the "2003
Private Placement");
All other terms and provisions of the Voting Agreement remain in effect.
IN WITNESS WHEREOF, the parties execute this Extension to Voting Agreement
to be effective as of the date first set forth above.
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
AspenBio, Inc.
By /s/ Xxxx Xxxxx
--------------------
Xxxx Xxxxx, Chairman
