Form 13-4

Note that although this voting agreement represents an agreement among three owners of a corpora­tion, any number of owners of a corporation (including the corporation itself) may enter into a voting agreement. See Tex. Bus. Orgs. Code § 6.252.

Voting Agreement

This Voting Agreement (“Agreement”) is made as of [date] between [name of owner A], [name of owner B], and [name of owner C], as owners (each, an “Owner,” and collectively, “Owners”) of [name of corporation], a Texas corporation (“Corporation”).

The Owners hold ownership interests in the Corporation (“Ownership Interests”) and desire to enter into an agreement regarding the voting of Ownership Interests.

Therefore, in consideration of the premises and mutual promises contained in this Agreement, the Owners agree as follows:

1.Proxies. Any proxy granted by any of the Owners to vote or give a consent regarding [his/her/its] Ownership Interests will be subject to this Agreement.

2.Nomination and Election of Board Members. At each annual meeting of the Owners or any special meeting called for the purpose of electing the managerial officials of the Corporation or at any other time as they may agree, [name of owner D], [name of owner E], and [name of owner F], as a group (the “X Owners”) and [name of owner G], [name of owner H], and [name of owner I], as a group (the “Y Owners,” and collectively with the “X Owners,” the “Designating Owners”) each have the right to nominate [number] members of the board of [directors/managers] of the Corporation (the “Board”) (but only as long as at least one mem­ber of the nominated group is a holder of Ownership Interests), and each Owner will, and hereby agrees to, vote or give a consent regarding all of [his/her/its] Ownership Interests in favor of the election of all the individuals so nominated by the Designating Owners.

3.Removal of Board Members. No Owner may vote or give a consent regarding any of his, her, or its Ownership Interests in favor of the removal of a member of the Board nominated by any Designating Owner, provided, however, that on the request of a Designat­ing Owner to remove a member of the Board nominated by the requesting Designating Owner, each Owner will, and hereby agrees to, vote or give a consent regarding all of his, her, or its Ownership Interests in favor of the removal of that member of the Board.

4.Vacancies. If any vacancy occurs on the Board because of the death, disability, resignation, retirement, or removal of a member of the Board nominated and elected in accor­dance with this Agreement, the Designating Owner who nominated the individual creating the vacancy or, if the vacancy occurs because the Designating Owner having the right to nominate a member of the Board failed to do so, the Designating Owner who has the right to make the nomination will nominate a successor, and each Owner will, and hereby agrees to, vote or give a consent regarding all of his, her, or its Ownership Interests in favor of the election of the nominated successor member of the Board. Any vacancy that occurs is required to be filled as promptly as possible on the request of the Designating Owner having the right to nominate an individual to fill the vacancy.

5.Actions as Designating Owners. Each of the X Owners and the Y Owners must take any actions as a group under this Agreement as Designating Owners by the affirmative vote or consent of the holders of a majority of the Ownership Interests of that group.

6.Size of Board. The Board will consist of [number] members [include if applica­ble: and may have up to [number] additional “outside” members who are not affiliated with the Corporation or any of the Owners and who are nominated by the Board]. If the Board or the Corporation (without the involvement of any of the Owners) amends the governing docu­ments of the Corporation or repeals the Corporation’s governing documents and adopts new governing documents and the new governing documents affect the size or composition of the Board in violation of this Agreement, each Owner will use his, her, or its reasonable best efforts to cause the amendment or new governing documents to be further amended so as to be consistent with this Agreement, and each Owner agrees to vote his, her, or its Ownership Interests accordingly.

7.Amendment of Governing Documents. No Owner will vote or give a consent regarding his, her, or its Ownership Interests in favor of an amendment or repeal of the Corpo­ration’s governing documents or for the adoption of new governing documents by the Corpo­ration, without the consent of all the other Owners, if the amendment or repeal of the governing documents or the adoption of the new governing documents would affect the size or composition of the Board in violation of this Agreement.

8.Voting Agreement. This Agreement is a voting agreement under section 6.252 of the Texas Business Organizations Code. Accordingly, a copy of this Agreement will be deposited with the Corporation at its principal executive office or registered office, and each certificate representing the Owners’ Ownership Interests will contain a conspicuous notation or the Corporation will send a notice to each holder of an Ownership Interest not represented by a certificate regarding the existence of this Agreement.

9.Termination. This Agreement will be effective until 11:59 p.m. central time on [date], when it will terminate; provided, however, that it will terminate sooner on the consum­mation of a registered public offering of Ownership Interests for the account of the Corpora­tion under the Securities Act of 1933, as amended, and the rules and regulations thereunder. On termination of this Agreement, each Owner may exchange his, her, or its certificate repre­senting Ownership Interests for a new certificate representing Ownership Interests without any notation regarding this Agreement and the Corporation will send a notice regarding the termination of this Agreement to each holder of an Ownership Interest not represented by a certificate.

10.Binding Effect of Agreement. Nothing in this Agreement, express or implied, is intended to confer on any party, other than the parties hereto and their respective permitted assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement, and no person who is not a party to this Agreement may rely on the terms except as otherwise set out. This Agreement (a) constitutes the entire agreement between the parties relating to the subject matter hereof and (b) supersedes all previous understandings and agreements between the parties relating to the subject matter hereof, both oral and written. The terms and condi­tions of this Agreement will be binding on and inure to the benefit of the respective successors and permitted assigns of the parties hereto.

11.Assignment. No party to this Agreement may assign its rights or delegate its obligations hereunder without the prior written consent of each party. Any such attempted assignment will be void ab initio. Subject to the preceding sentences, this Agreement will be binding on and inure to the benefit of the parties and their respective successors and assigns.

12.Amendment of Agreement. This Agreement may be amended or modified only by written instrument duly executed by each of the parties hereto.

13.Applicable Law. This Agreement is made pursuant to, will be construed under, will be enforced in accordance with, and will be conclusively deemed for all purposes to have been executed and delivered under the laws of the state of Texas without reference to conflict of laws.

14.Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which will constitute one instrument.

15.Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected thereby, and in lieu of the illegal, invalid, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be legal, valid, and enforceable.

16.Notices. All notices, communications, and deliveries made under this Agree­ment will be made in writing signed by or on behalf of the delivering party, will specify the section of the Agreement under which it is given or made, and will be delivered personally, by facsimile transmission, by registered or certified mail (return receipt requested), or by any courier service, with postage or other fees prepaid, as follows:

If to [name]:
[Address]
[Fax no.]
Attention: [name]

Any such notice, communication, or delivery may also be made to any other address or person designated in writing by the receiving party. Such addresses may be changed from time to time by written notice to the other party. Any notice, communication, or delivery will be deemed given or made (a) on the date of delivery if delivered in person or by courier service, (b) on transmission by facsimile if receipt is confirmed by telephone, or (c) on the fifth busi­ness day after it is mailed by registered or certified mail.

17.Waiver. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and executed by all of the parties hereto. Any waiver by any party hereto of a breach or failure to perform will not constitute a waiver of any subsequent breach or failure.

18.Further Assurances. The parties agree to take further actions and execute and deliver other documents, certificates, agreements, and other instruments as may be reasonably necessary or desirable to implement transactions contemplated by this Agreement.

19.Section Headings. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

20.Gender and Number of Words. When the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the number of all words includes the singular and the plural.

The Owners have executed this Agreement on [date].

   
[Name of owner A], Owner

   
[Name of owner B], Owner

   
[Name of owner C], Owner