10.4
VOTING AGREEMENT
AGREEMENT, made this 23rd day of September, 1999, by and among
XXXXXXX XXXXX, an individual with an address at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxx, XX 00000 ("Xxxxx"), VACATION EMPORIUM CORPORATION, a Nevada
corporation with an address at 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
(the "Company"), SIGMA LIMITED, S.A., a Swiss corporation with an address at Xxx
Xxxxx-Xxxxxxxxxxx 00, XX-0000 Xx Xxxxx-xx-Xxxxxx, Xxxxxxxxxxx ("Sigma"), XXX
XXXX, an individual with an address at Suite 305, Xxxxxxx House, 000/000
Xxxxxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxxx, and CORPORATE COMMUNICATIONS NETWORK,
INC., a Nevada corporation with an address at 0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0,
Xxxxxxxxxx, Xxxxxxx 00000 ("CCN").
WHEREAS, Xxxxx and the Company have entered into an Agreement and
Plan of Share Exchange, dated as of July 30, 1999 (the "Exchange Agreement"),
pursuant to which Xxxxx, as the sole shareholder of Wall Street Strategies,
Inc., a Delaware corporation ("WSI"), has agreed to sell all of the issued and
capital stock of WSI to the Company in exchange for 9,455,898 shares of the
Company's common stock, par value $.001 per share (the "Common Stock"), as a
result of which Xxxxx will become the controlling shareholder of the Company;
and
WHEREAS, as a condition of closing under the Exchange Agreement, the
Company is obligated to have current assets that exceed its liabilities by no
less than $3,000,000 (the "Required Net Worth"); and
WHEREAS, Sigma has procured investors in the Company so as to
satisfy the Required Net Worth subject to the parties hereto entering into this
Agreement simultaneous with the closing of the exchange under the Exchange
Agreement (the "Exchange"); and
WHEREAS, CCN is a shareholder of the Company and desires the
Exchange to be consummated,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. So long as this Agreement shall remain in effect, Xxxxx agrees to
vote all shares of capital stock of the Company now or hereafter owned or
controlled by him, and the Company agrees to exercise its best efforts, as
follows:
(a) To cause the total number of directors that shall constitute the
entire Board of Directors of the Company to be five.
(b) To cause the election of Rice, as the designee of Sigma or, if
Rice is unable to serve, such other person designated by Sigma who shall be
reasonably acceptable to Xxxxx, as the executive Chairman of the Board of
Directors of the Company and for one other person designated by Sigma who shall
be reasonably acceptable to Xxxxx to be elected a director of the Company. Xxxxx
acknowledges that Xxxxxx Xxxxx, who Sigma has advised it intends to nominate as
a director of the Company, is an acceptable designee of Sigma.
2. So long as this Agreement shall remain in effect, Sigma and Rice
agree to vote all shares of capital stock of the Company now or hereafter owned
or controlled by either of them, and the Company agrees to exercise its best
efforts, to cause the election of Xxxxx and such other persons designated by
Xxxxx who shall be reasonably acceptable to Sigma and who together with Xxxxx
shall constitute a majority of the Company's Board of Directors, to be elected
as directors of the Company. Sigma acknowledges that Xxxxxx Xxxxxx and Xxxxx
XxXxxxxx, who Xxxxx has advised it intends to nominate as directors of the
Company, are acceptable designees of Xxxxx.
3. So long as this Agreement shall remain in effect, CCN agrees to
vote all shares of capital stock of the Company now or hereafter owned or
controlled by CCN up to a maximum of 250,000 shares to cause the election of
Xxxxx and such other persons designated by Xxxxx who shall be reasonably
acceptable to Sigma and who together with Xxxxx shall constitute a majority of
the Company's Board of directors, to be elected as directors of the Company.
4. At the first meeting following the execution of this Agreement of
the Board of Directors of the Company, WSS and any other subsidiary of the
Company now or hereafter existing, Xxxxx and Rice agree to vote for, and Xxxxx
and Sigma agree to exercise their best efforts to cause their respective
designees to each of such Board of Directors to vote for, the adoption of the
resolutions set forth in Exhibit A attached hereto and not to rescind, modify or
supersede such resolutions so long as this Agreement shall remain in effect.
5. The Company agrees to cause the Board of Directors of WSS and
each of the Company's other subsidiaries, now or hereafter in existence, to be
comprised as follows: the majority of the members thereof shall be designated by
Xxxxx and the minority thereof shall be designated by Sigma.
6. Each of Xxxxx and Sigma agrees to take, and to cause their
respective designees to the Company's Board of Directors to take, all such
action as may be necessary or appropriate to carry out the purpose and intent of
this Agreement, including, without limitation, amendment of the by-laws of the
Company, WSS and any other subsidiary of the Company, now or hereafter in
existence..
7. This Agreement shall remain in effect for a period of two years
commencing on the date hereof.
8. The parties hereto acknowledge that the failure of any of them to
perform his or its obligations hereunder, or the taking of any action by any of
them which is contrary to, or which will cause any action to be taken by the
Company which is contrary to, the terms and provisions of this Agreement, shall
result in irreparable injury and damage to the other parties hereto, which
injury and damage cannot be adequately compensated for by any damages in an
action at law. It is therefore agreed that, in addition to any other rights and
remedies that any of the parties hereto may have, the obligations of each party
hereto to the other parties hereto shall be enforceable by specific performance
and by such other forms of equitable relief as may be deemed appropriate under
the circumstances, including an injunction restraining a breach or threatened
breach of this Agreement, in any case without the necessity of proving actual
damages or that damages would be inadequate or the posting of a bond. No party
hereto will take any action, directly
or indirectly, in opposition to the moving party seeking such relief on the
grounds that any other remedy or relief is available at law or in equity. If any
party shall institute an action to enforce his or its rights against any other
party hereto, the prevailing party in such action shall be entitled to such
reasonable attorney's fees and expenses as the court may award.
9. This Agreement (including the exhibit hereto) contain the entire
agreement among the parties with respect to the subject matter, and supersede
all prior agreements, written or oral, with respect thereto.
10. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the parties waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege hereunder preclude any
other or further exercise of any right, power or privilege hereunder. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies which the parties hereto may otherwise have at law or in equity.
11. This Agreement be binding upon and inure to the benefit of the
parties and their respective heirs, personal representatives and successors. All
rights and authority granted herein by each party shall survive the death or
incapacity of any party hereto. Nothing contained herein is intended or shall be
construed as creating third party beneficiaries to this Agreement. This
Agreement is not assignable except by operation of law.
12. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
13. This Agreement shall be governed and interpreted in accordance
with the laws of the state of New York, without regard to the conflict of laws
principles thereof or the actual domiciles of the parties hereto.
14. All notices, requests, demands and other communications that are
required to be or that may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person, or upon
receipt after dispatch by Express Mail, Federal Express, other overnight
delivery service or by certified or registered first class mail, return receipt
requested, in any such case delivery charges prepaid, to the party to whom the
same is so given or made, at the address set forth on the first page of this
Agreement or such other address as shall be provided by notice in accordance
with this Section 13.
15. Each party hereby consents to the personal jurisdiction of the
United States Court for the Southern District of New York and of any of the
courts of the State of New York in New York County, in any action, suit or
proceeding arising under this Agreement. Each party agrees to bring any such
action, suit or proceeding only in such courts. Each party further
agrees that service of process or notice in any such action, suit or proceeding
shall be effective if given in the manner set forth in Section 14 hereof.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
/s/ Xxxxxxx Xxxxx /s/ Xxx Xxxx
-------------------------------- -------------------------------
Xxxxxxx Xxxxx Xxx Xxxx
VACATION EMPORIUM CORPORATION SIGMA LIMITED, S.A.
By:/s/ Xxxxx XxXxxxxx By:/s/ Xxx Xxxx
-------------------------------- -------------------------------
Authorized Agent
CORPORATE COMMUNICATIONS NETWORK, INC.
By:/s/ Xxxxxx Xxxx
--------------------------------
Exhibit A
RESOLVED, that all funds of the Corporation shall be deposited into
an account or accounts at such bank or banks as the appropriate officers of the
Corporation shall deem desirable; and be it further
RESOLVED, that all checks drawn on the bank account or accounts of
the Corporation for less than $20,000 shall require the signature of any one
officer of the Corporation and for $20,000 or more shall require the signature
of two persons, one of whom shall have been designated by Xxxxxxx Xxxxx and the
other by Sigma Limited, S.A.
