Exhibit (ii)
SHARE PURCHASE AND VOTING TRUST AGREEMENT
THIS SHARE PURCHASE AND VOTING TRUST AGREEMENT (this "Agreement"), is made and
entered into as of the 1st day of April, 2004 (the "Effective Date"), by and
between Xxxx Xxxxxxxx, an individual ("Seller") and Jesup & Xxxxxx Securities
Corporation, a New York corporation ("Purchaser"). (Seller and Purchaser are
sometimes referred to herein collectively as the "Parties" and individually as a
"Party").
RECITALS
A. Prior to the Effective Date, Purchaser agreed to loan to Seller an
aggregate amount of Fifty-two Thousand Three Hundred Sixty Dollars
($52,360), all but Nine Thousand Three Hundred Sixty dollars ($9,360) of
which has been delivered to Seller.
B. Seller and Purchaser have mutually agreed that the above-referenced
amounts received and to be received by Seller shall be considered a
purchase price payment in consideration for which Seller shall sell,
transfer and convey to Purchaser, free and clear of any liens,
encumbrances or third party rights of any kind, an aggregate amount of
675,000 shares of capital stock owned by Seller in NexGen Vision, Inc., a
Delaware corporation (the "Company"), all as more particularly set forth
herein.
C. In addition to the sale and purchase of the capital stock described above,
the Parties desire to enter into a voting trust arrangement whereby
Purchaser is entitled to exercise the voting power of the remaining shares
in the Company owned by Seller as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties do mutually agree as
follows:
1. Sale and Purchase of Shares. Subject to the terms hereof, effective as
of the Effective Date, Seller shall sell, assign and transfer to Purchaser, and
Purchaser shall purchase from Seller, the Purchase Shares (as defined below) for
an aggregate purchase price of fifty two thousand dollars ($52,000) (the
"Purchase Price"). Seller hereby acknowledges that he has previously received
forty two thousand dollars ($42,000) from the Purchaser and that such amount
shall be partial payment of the Purchase Price. The balance of the Purchase
Price ($9,360) shall be paid to Seller pursuant to Section 4 below.
2. Representations, Warranties and Covenant of Seller. Seller hereby
represents and warrants to Purchaser as follows:
(a) The shares of capital stock to be sold to Purchaser pursuant to
Section 1 consist of 100,000 shares of Class A Common Stock of the Company and
675,000 shares of Class B Common Stock of the Company, totaling 775,000 shares
of common stock of the Company (collectively, the "Purchase Shares").
Immediately following the sale and purchase of the Purchase Shares, Seller will
continue to own (i) 650,000 shares of Class B Common Stock of the Company
(hereinafter, the "Voting Trust Shares") and (ii) various warrants and options
to purchase additional common stock of the Company. Other than as set forth in
the preceding sentence, immediately following the sale and purchase of the
Purchase Shares, Seller will not own any equity securities (or debt securities
convertible into equity securities) of the Company.
(b) Seller is the record and beneficial owner of the Purchase Shares and
the Voting Trust
Shares, free and clear of any and all liens, encumbrances, claims, charges or
third party rights thereon of every kind and nature whatsoever and there are no
restrictions on his power to sell the Purchase Shares or to subject the Voting
Trust Shares to the provisions of Section 3 herein, nor are there any
outstanding options, warrants or other rights to purchase the Purchase Shares or
the Voting Trust Shares.
(c) Seller has the right, power, and authority to enter into this
Agreement and all documents and instruments to be executed by him hereunder, and
to perform his obligations hereunder and thereunder. This Agreement constitutes
a valid and legally binding obligation of Seller, enforceable in accordance with
its terms.
(d) In connection with the sale of the Purchase Shares to Purchaser,
Seller shall make or cause to be made any filing required by the United States
Securities and Exchange Commission as a result of such sale.
3. Voting Trust.
(a) In connection with the sale of the Purchase Shares to the Purchaser as
described above, Seller shall also deliver to Purchaser certificates evidencing
the Voting Trust Shares (i.e. 650,000 shares of Class B Common Stock of the
Company) which certificates shall be held by Purchaser in trust until the shares
represented thereby are no longer subject to the provisions of this Section 3.
Pursuant to this Section 3, Purchaser shall exercise all voting rights with
respect to the Voting Trust Shares. Purchaser shall exercise such rights
initially through Xxxxxxx Xxxxxx, President of Purchaser (in such capacity, the
"Voting Trustee"). Purchaser may at any time, in its sole discretion, replace
Xx. Xxxxxx (or his successor) as Voting Trustee and any such replacement shall
be the "Voting Trustee" for purposes of this Agreement as if such replacement
had originally acknowledged this Agreement as contemplated on the signature page
hereto.
(b) Subject to the provisions of Section 3(f) below, the Voting Trustee
shall be entitled to exercise all the voting and consenting rights in respect of
the Voting Trust Shares, including the right to vote the Voting Trust Shares in
connection with all matters requiring or permitting a stockholder vote or
consent under the Delaware General Corporation Law.
(c) Seller hereby acknowledges and agrees that the Voting Trustee is an
officer and affiliate of the Purchaser and that the Voting Trustee may act as a
Director and/or an officer and/or employee of the Company and may vote for
himself as such and may be interested in the shares of common stock, or
otherwise interested in, the Company.
(d) The Voting Trustee shall not incur any liability hereunder, except for
his own willful misconduct.
(e) Seller shall be entitled to receive all dividends and all other
corporate distributions made by the Company in respect of the Voting Trust
Shares except that if any such dividend or distribution shall be made in shares
of common stock or any other class of voting capital stock of the Company, the
certificates for the shares of such common stock or other voting capital stock
shall be deposited with or held by Voting Trustee subject to the terms of this
Agreement and shall be deemed "Voting Trust Shares" for all purposes hereunder.
(f) Subject to Section 3(g) below, the provisions of this Section 3 shall
remain in full force and effect for an initial period of two years from the
Effective Date (the "Initial Period"). The Initial Period shall automatically
renew for subsequent, consecutive two-year periods (each, an "Extension Period")
unless Purchaser otherwise notifies Seller of its intent to terminate the
provisions of this Section
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3 at any time. Upon termination of the provisions of this Section 3, Purchaser
shall return to Seller any certificates representing the Voting Trust Shares in
Purchaser's possession.
(g) If, at any time while the provisions of this Section 3 are in effect,
Seller desires to sell all or any portion of the Voting Trust Shares to a third
party pursuant to a bona fide offer to purchase such shares, Seller shall first
obtain the prior written consent of Purchaser to such sale, which consent shall
not be unreasonably withheld, provided, however, that Purchaser may refuse to
consent to any such proposed sale if Seller does not agree, in writing, as a
condition precedent to such sale, that the Voting Trust Shares to be sold first
be converted into shares of the Company's Class A Common Stock, as contemplated
by Section 4 of the Company's Certificate of Incorporation as in effect on the
date hereof. Any consent by Purchaser to a sale of Voting Trust Shares hereunder
shall include a written release of such Voting Trust Shares (and only such
shares) from the provisions of this Section 3. Any Voting Trust Shares retained
by Seller shall remain subject to the terms of this Agreement as written.
(h) Purchaser and Seller hereby agree that if either Party is required by
any federal or state statute, law, rule or regulation to file a copy of the
provisions of this Section 3, they will execute and deliver a separate voting
trust agreement (a "Voting Trust Agreement") to memorialize the provisions of
this Section 3 for purposes of complying with such applicable federal or state
filing requirement. In the event of any conflict between the terms of the Voting
Trust Agreement and the provisions of this Section 3, the terms of the Voting
Trust Agreement shall control.
4. Effective Date Deliveries and Actions. On the Effective Date, the
Parties shall make the following deliveries and take the following actions:
(a) Seller shall deliver to Purchaser certificates representing both the
Purchase Shares and the Voting Trust Shares. With respect to the Purchase
Shares, the appropriate certificates shall be properly endorsed in blank for
transfer to Purchaser or accompanied by duly executed stock powers.
(b) Seller and Purchaser shall cooperate as necessary to cause the Company
to recognize the transfer of the Purchase Shares to Purchaser on the Company's
books and records and to issue new certificates evidencing the ownership of the
Purchase Shares and the Voting Trust Shares immediately following the sale and
purchase described in Section 1. All of such certificates shall be delivered to
Purchaser and Purchaser shall hold the certificates representing the Voting
Trust Shares in trust pursuant to Section 3 herein.
(c) Upon receipt of the appropriate share certificates, Purchaser shall
deliver to Seller $10,000, representing the balance of the Purchase Price, in
readily available funds by cash, wire transfer or certified check in accordance
with instructions as provided by Seller.
5. Advice of Counsel; Neutral Affect as to Draftsmanship. The Parties
represent that (i) they have been represented by counsel of their own choosing,
which counsel have explained in detail all of their rights, obligations and
liabilities hereunder and with respect hereto, (ii) neither of them have entered
into this Agreement under duress or threat of any sort or kind, and (iii) their
entry into this Agreement has been and is voluntary in all respects. The Parties
agree that in the interpretation of this Agreement, no court or other tribunal
shall construe this Agreement other than neutrally between the Parties as a
result of one or the other of the Parties or their counsel having been the
draftor hereof.
6. Conduct of the Parties Following the Effective Date. Each of the
Parties shall, and shall cause its respective directors, officers, employees,
agents or affiliates to, at any time and from time to time after the Effective
Date, upon the reasonable request of the other Party, execute, acknowledge and
deliver or cause to be executed, acknowledged and delivered all such further
assignments, transfers,
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conveyances, stock powers, powers of attorney or other instruments or documents
and take such other action as may be reasonably requested by the other Party for
the effective sale, assigning, transferring, granting, conveying, assuring and
confirming to Purchaser, or to its permitted successors and assigns, of the
Purchase Shares and otherwise to carry out the purpose and intent of this
Agreement.
7. Indemnification. Seller shall indemnify Purchaser and hold Purchaser
harmless from and against any and all liabilities, losses, damages, claims,
costs or expenses (including reasonable attorneys' fees and disbursements) that
are incurred or suffered by Purchaser by reason of (i) the breach by Seller of
any of the representations and warranties contained herein or (ii) the failure
of Seller to perform or comply with any covenant or agreement contained herein
to be performed or complied with by him.
8. No Advantage to Third Parties. This Agreement is solely for the benefit
of the Parties hereto and their respective permitted successors, assigns and
personal representatives and no other party shall be a third party beneficiary
hereof.
9. Miscellaneous.
(a) This Agreement shall be binding on and inure to the benefit of the
Parties hereto and their successors and assigns.
(b) This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
(c) Except as contemplated by Sections 7 and 9(g), each Party shall bear
its own fees and costs incurred in connection with any matter described herein
and in the preparation and negotiation of this Agreement.
(d) The terms and provisions of this Agreement cannot be terminated,
modified or amended orally or by course of conduct or dealing or in any manner
except in a writing that is signed by the Party against whom enforcement is
sought.
(e) This Agreement shall be construed in accordance with the internal laws
of the State of New York, without regard to its principles of conflicts or
choice of law, and any suit, action or proceeding arising out of or relating to
this Agreement may be commenced and maintained in any court of competent subject
matter jurisdiction in the County of New York, New York City, New York, and each
Party waives objection to such jurisdiction and venue.
(f) The provisions of this Agreement are severable, and any invalidity,
unenforceability or illegality in any provision or provisions hereof shall not
affect the remaining provisions of this Agreement.
(g) In any suit, action or proceeding arising out of or in connection with
this Agreement, the prevailing Party shall be entitled to an award of the
reasonable attorneys' fees and disbursements incurred by such Party in
connection therewith, including fees and disbursements in administrative,
regulatory, insolvency, bankruptcy and appellate proceedings.
(h) All notices required or allowed hereunder shall be in writing and
shall be deemed given (i) if sent by hand or by reputable overnight courier
service, upon delivery, (ii) if sent by facsimile, upon confirmation of
successful transmission of such facsimile, or (iii) if sent by United States
certified mail, return receipt requested, first class postage and registration
fees prepaid, five business days after the posting thereof, in each case
correctly addressed or directed to the Party for whom intended at their
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address or facsimile number set forth on the signature page hereto, or such
other address or facsimile number as is most recently noticed for such Party as
aforesaid.
(i) All references to gender or number in this Agreement shall be deemed
interchangeably to have a masculine, feminine, neuter, singular or plural
meaning, as the sense of the context requires.
(j) Any failure by any Party to insist upon strict performance by the
other of the terms and provisions of this Agreement shall not be deemed a waiver
of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date
first set forth above.
SELLER:
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Xxxx Xxxxxxxx
Address:
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Fax No.:
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PURCHASER:
JESUP & XXXXXX SECURITIES CORPORATION
a New York corporation
By:
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Its:
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Address:
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Fax No.:
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Acknowledged and agreed with respect to
Section 3.
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Xxxxxxx Xxxxxx, initial Voting Trustee
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