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EXHIBIT 4.3
VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT
THIS VOTING AND RIGHT OF FIRST REFUSAL AGREEMENT (this
"AGREEMENT") is
made and entered into as of the 12th day of December 2007 (the
"EFFECTIVE
DATE"), by and among the persons listed on Exhibit A (each
individually a
"STOCKHOLDER" and collectively, the "STOCKHOLDERS"), Pala
Investments Holdings
Limited ("PALA"), and Reclamation Consulting And Applications,
Inc. (the
"COMPANY"). Each of the Company, Stockholder and Pala, are
individually each
referred to herein as a "PARTY" and are collectively referred to
herein as the
"PARTIES." The Board of Directors of the Company is referred to
herein as the
"BOARD."
RECITALS
WHEREAS, concurrently with the execution of this Agreement, the
Company
and Pala have entered into a Secured Convertible Debenture
Agreement dated
December 12, 2007 (the "DEBENTURE AGREEMENT"), pursuant to which
Pala has agreed
to lend to the Company up to $5,000,000, on the terms and
subject to the
conditions set forth in the Debenture Agreement; and
WHEREAS, the Parties desire to provide Pala with the right,
among other
rights, to designate the election of a certain member of the
board of directors
of the Company (the "BOARD") in accordance with the terms of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and certain
other
good and valuable consideration, the receipt and sufficiency of
which are hereby
acknowledged, the Parties, intending to be legally bound, hereby
agree as
follows:
1. ELECTION OF DIRECTOR.
---------------------
Each Party agrees to vote, or cause to be voted, all Shares (as
defined
below) owned by such Party, or over which such Party has voting
control, from
time to time and at all times, in whatever manner as shall be
necessary to
ensure that at each annual or special meeting of stockholders at
which an
election of directors is held or pursuant to any written consent
of the
stockholders, one person designated by Pala (the "PALA
DESIGNEE") is elected to
the Board. For purposes of this Agreement, the term "SHARES"
shall mean and
include any securities by whatever name called of the Company
the holders of
which are entitled to vote for members of the Board, now owned
or subsequently
acquired by a Party, however acquired, whether through stock
splits, stock
dividends, reclassifications, recapitalizations, similar events
or otherwise.
All Parties agree that any Pala Designee, or any replacement
thereto, serving as
a director on the Company's board is expected and required to
act in the best
interests of Company and all of its shareholders, in accordance
with his or her
fiduciary duties under applicable law.
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2. REMOVAL.
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Each Party also agrees to vote, or cause to be voted, all Shares
owned
by such Party, or over which such Party has voting control, 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 of this
Agreement may be removed from office unless such
removal is directed or approved by the affirmative
vote of Pala or such director violates his or her
fiduciary duties to the Company;
(ii) any vacancies created by the resignation, removal or
death of a director elected pursuant to Section 1
shall be filled pursuant to the provisions of this
Section 2; and
(iii) upon the request of Pala to remove such director,
such director shall be removed and replaced in
accordance with Section 1 of this Agreement.
All Stockholders agree to execute any written consents required
to perform 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.
3. AMENDMENT TO ARTICLES
---------------------
Each Party agrees to vote or cause to be voted all Shares owned
by such
Party, or over which such Party has voting control, in whatever
manner as shall
be necessary to effect a reverse split and/or increase the
number of authorized
shares of Common Stock to ensure that there will be sufficient
authorized but
unissued shares of Common Stock available for conversion of
indebtedness under
the Debenture Agreement outstanding at any given time and to
maintain the
provisions in the Company's Articles of Incorporation set forth
in Schedule K to
the Debenture Agreement, and to ensure that at all times during
the term of this
Agreement the Bylaws of the Company permit telephonic meetings
of the Board in
the manner permitted by applicable law.
4. LEGEND ON SHARE CERTIFICATES.
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Each certificate representing any Shares shall be endorsed by
the
Company with a legend reading substantially as follows:
"The securities evidenced hereby are subject to a Voting and
Right of First Refusal Agreement, a copy of which has been
filed with the Secretary of the Company and is available
upon
request. By accepting any interest in the securities
evidenced
by this Certificate, the person accepting such interest
shall
be deemed to agree to and shall become bound by all the
provisions of the Voting and Right of First Refusal
Agreement."
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5. IRREVOCABLE PROXY
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Each Party to this Agreement hereby constitutes and appoints
Pala, with
full power of substitution, as the proxy of the Party with
respect to the
matters set forth herein, including without limitation, election
of persons as
members of the Board in accordance with Section 1 hereto, a vote
to effect a
reverse split and/or increase the number of authorized shares of
Common Stock
pursuant to Section 3 hereof, and hereby authorizes Pala to
represent and to
vote, if and only if the Party (i) fails to vote or (ii)
attempts to vote
(whether by proxy, in person or by written consent), in a manner
which is
inconsistent with the terms of this Agreement, all of such
Party's Shares in
favor of the election of a person as a member of the Board
determined pursuant
to and in accordance with the terms and provisions of this
Agreement or for a
reverse split and/or the increase of authorized shares pursuant
to and in
accordance with the terms and provisions of Sections 1 and 3,
respectively, of
this Agreement. The proxy granted pursuant to the immediately
preceding sentence
is given in consideration of the agreements and covenants of the
Company and the
Parties in connection with the transactions contemplated by this
Agreement and,
as such, is coupled with an interest and shall be irrevocable
unless and until
this Agreement terminates or expires pursuant to Section 13
hereof. Each Party
hereto hereby revokes any and all previous proxies with respect
to the Shares
and shall not hereafter, unless and until this Agreement
terminates or expires
pursuant to Section 13 hereof, purport to grant any other proxy
or power of
attorney with respect to any of the Shares, deposit any of the
Shares into a
voting trust or enter into any agreement (other than this
Agreement),
arrangement or understanding with any person, directly or
indirectly, to vote,
grant any proxy or give instructions with respect to the voting
of any of the
Shares, in each case, with respect to any of the matters set
forth herein.
6. SPECIFIC ENFORCEMENT.
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It is agreed and understood that monetary damages would not
adequately
compensate an injured Party for the breach of this Agreement by
any Party, that
this Agreement shall be specifically enforceable, and that any
breach or
threatened breach of this Agreement shall be the proper subject
of a temporary
or permanent injunction or restraining order. Further, each
Party hereto waives
any claim or defense that there is an adequate remedy at law for
such breach or
threatened breach.
7. RESTRICTIONS ON THE TRANSFER OF SHARES.
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Except as expressly permitted by this Agreement, other than
in
connection with a Permitted Distribution, no Stockholder shall
make, or directly
or indirectly permit to be made, a sale, transfer, conveyance,
assignment or
other disposition (a "DISPOSITION") of any Shares held by such
Stockholder. For
purposes of this Agreement, a "PERMITTED DISPOSITION" means the
Disposition of
Shares by a Stockholder through any of the following
mechanisms:
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(i) any Disposition of the Stockholder to any of such
Stockholder's spouse, brothers, sisters, ancestors,
descendants, or other relatives, or to any company or
trust affiliated with any such person, provided that
any such recipient agrees to be bound by the terms
and conditions of this Agreement relating to
Stockholders,
(ii) any Disposition by the Stockholder of the Shares to a
company, trust or other entity affiliated with the
Stockholder or any of such Stockholder's spouse,
brothers, sisters, ancestors, descendants, or other
relatives, or to any company or trust affiliated with
any such person, provided that any such recipient
agrees to be bound by the terms and conditions of
this Agreement relating to Stockholders
(iii) any Disposition pursuant to a bona fide pledge of all
or any portion of Shares by the Stockholder as
security for any loan to the Company or any
subsidiary or affiliate thereof, or any other bona
fide pledge of such Shares, if made in accordance
with the terms, provisions, and conditions of this
Agreement.
8. RIGHTS OF FIRST REFUSAL - TRANSFER OF SHARES
--------------------------------------------
(a) In the event that any Stockholder desires or is required to
sell or
otherwise transfer all or any portion of his or her Shares,
other than pursuant
to a Permitted Disposition (such Stockholder being hereinafter
referred to as a
"SELLING STOCKHOLDER"), such Selling Stockholder shall promptly
deliver notice
(a "SELLING STOCKHOLDER NOTICE") of such fact to Pala, which
Selling Stockholder
Notice shall state the terms of sale, including the desired
purchase price,
relating to the sale of such Pala. Within fifteen (15) business
days after
receipt of the Selling Stockholder Notice by the other Party,
Pala may offer to
purchase all or any portion of such Selling Stockholder's Shares
in accordance
with the provisions of this Agreement. For the purposes of this
Agreement, a
"business day" shall be any day that is not a Saturday or Sunday
or a U.S.
Federal legal holiday.
(b) If after such fifteen (15) business-day period elapses not
all of
the Shares which were offered in the Selling Stockholder Notice
are subscribed
for by Pala, then the Selling Stockholder shall b
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