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VOTING AGREEMENT
This
Voting Agreement (this “Agreement”) is made as of
May 7, 2008, 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,
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 Agreement and Plan of Merger of even date herewith (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.
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 (the
“Exchange Act”).
(b)
“Company Capital Stock” means
shares of common stock, par value $0.001 per share, of the
Company.
(c)
“Company Options and Other Rights”
means
options, warrants and other rights to acquire, directly or
indirectly, shares of Company Capital Stock.
(d)
“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.
(e)
“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 reresents 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 (the “Securities Act”);
(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 Beneficially Owned by the Company Principal
Stockholder as of the record date of such meeting or written
consent:
(i)
for
the execution and delivery by the Company of the Merger
Agreement and 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 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 Merger and the
transactions contemplated by the Merger Agreement):
(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 Person 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 this
Section 2(a).
(e)
The
Company Principal Stockholder hereby waives and agrees not 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.
Written Consent of Stockholders
. Upon
the U.S. Securities and Exchange Commission’s
declaration of the effectiveness of the Registration Statement on
Form S-4 filed by Parent in connection with the Merger, if at
all, the Company Principal Stockholder shall deliver to Parent a
written consent in favor of the adoption of the Merger Agreement
and the Merger.
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 Capital
Stock set forth under the heading “Shares of Company
Capital 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 Company Options and Other
Rights set forth under the heading “Company Options and
Other Rights Beneficially Owned” on the signature page
hereof; and
(iii)
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 ob
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