SHAREHOLDER VOTING AGREEMENT
This
Agreement is made between Xxxxxxx Xxxxxxxxx (“Xxxxxxxxx”), Xxxxxxx Xxx (“Lax”)
and Xxxxxxx Xxxxxxxxx (“Xxxxxxxxx”) (collectively, Xxxxxxxxx, Lax and Xxxxxxxxx
referred to herein as the "Shareholders") dated March 6, 2006.
WHEREAS,
on March
3, 2006 Xxxxxxxxx and Lax purchased an aggregate of 3,160,000 shares of common
stock of Aprecia, Inc., a Delaware corporation (the “Corporation”);
WHEREAS,
on Xxxxx
0, 0000, Xxxxxxxxx and the Corporation entered into an Asset Purchase Agreement
whereby Xxxxxxxxx transferred the know-how related to the creation and issuance
of automated alerts for fraudulent xxxxxx placed at North American thoroughbred
races to the Corporation in consideration for 9,700,000 shares of common stock
of the Corporation;
WHEREAS,
the
Shareholders desire to enter into this Agreement to provide for the voting
of
their shares in connection with the election of directors of the Corporation
and
certain other matters; and
WHEREAS,
Xxxxxxxxx will own 960,000 of shares of common stock in the Corporation;
WHEREAS,
Lax will
own 2,200,000 of shares of common stock in the Corporation; and
WHEREAS,
Xxxxxxxxx will own 9,700,000 of shares of common stock in the
Corporation.
NOW
THEREFORE, IT IS AGREED AS FOLLOWS:
Section
1.
Election
of Directors.
In the
election of members of the board of directors, each Shareholder agrees to vote
all of such Shareholder's shares of common stock of the Corporation entitled
to
vote which may now or hereafter be owned or held of record by such Shareholder,
or as to which such Shareholder now or hereafter has voting power, for the
following candidates:
1.1
A
candidate designated by Xxxxxxxxx.
1.2
A
candidate designated by Lax.
1.3
Candidates
mutually agreeable to Xxxxxxxxx and Lax.
Each
Shareholder entitled to designate a candidate for the board of directors shall
notify the other Shareholders of such Shareholder's candidate within 10 days
of
receiving notice of any meeting of shareholders at which directors are to be
elected, if such meeting is one in which no specific notice is required, then
not later than 10 days before such meeting is scheduled to begin. If no
designation is received by a Shareholder from another Shareholder, such
Shareholder shall be entitled to presume that the incumbent director, if any,
designated by each such Shareholder shall continue to be the designee of such
Shareholder.
Section
2.
Removal
of Directors.
If at
any time any a Shareholder who has designated a candidate who has been elected
as a director notifies the other Shareholders of such Shareholder's desire
and
intention to remove or replace such Shareholder's designee or to fill a vacancy
caused by the resignation of such Shareholder's designee, all Shareholders
shall
cooperate in causing the requested removal and/or replacement by voting in
the
appropriate manner.
Section
3.
Intentionally
Left Blank.
Section
4.
Irrevocable
Proxies.
Each
Shareholder hereby grants to, and is deemed to have executed in favor of, all
of
the other Shareholders, an irrevocable proxy to vote, or to give written consent
with respect to, all the voting equity securities owned by the grantor of the
proxy for the election to the board of directors of such individuals as the
grantee of the proxy shall be entitled to designate pursuant to this
Agreement.
Section
5.
Lock-Up.
Xxxxxxxxx
and Lax
hereby agree that from the date hereof until the date that
Xxxxxxxxx
and
Lax
mutually
agree in writing to release the other party from the restrictions set forth
in
the Section 5
(the
“Restrictive Period”), each will not sell or otherwise dispose of any capital
stock of the Corporation, any rights to acquire capital stock of the Corporation
or any capital stock which either
party
has a
right to acquire. Further, until Lax is released by Xxxxxxxxx,
Xxxxxxxxx shall also not sell or otherwise dispose of any capital stock of
the
Corporation, any rights to acquire capital stock of the Corporation or any
capital stock which Xxxxxxxxx has a right to acquire during the Restrictive
Period. Xxxxxxxxx,
Lax
and
Harstein may sell or otherwise dispose of any capital stock of the Corporation,
any rights to acquire capital stock of the Corporation or any capital stock
which each party has a right to acquire (i) in connection with an offer made
to
all stockholders of the Corporation or any merger, consolidation or similar
transaction involving the Corporation, or (ii) with the prior written consent
of
the
other
two parties to this Agreement.
During
the Restrictive Period, Xxxxxxxxx,
Lax
and
Harstein may each sell shares of common stock during each quarter equal to
1% of
the total outstanding shares of common stock of the Corporation provided that
such sales are lawfully permitted to be sold. To the extent that Xxxxxxxxx,
Lax
and
Harstein do not sell their respective allotted shares during any such quarter,
Xxxxxxxxx,
Lax
and
Harstein may sell their respective balance thereof in any subsequent quarter.
Xxxxxxxxx,
Lax
and
Harstein further agree that the Corporation is authorized to place "stop orders"
on its books and a legend on each of the certificates representing the shares
held by Xxxxxxxxx,
Lax
and
Harstein to prevent any transfer of shares of capital stock or other securities
by Xxxxxxxxx,
Lax
and
Harstein in violation of this Agreement.
2
Section
6.
Remedies.
The
parties acknowledge that any violation of this Agreement will cause irreparable
harm to the parties hereto. As a consequence, the parties agree that if any
party fails to abide by the terms of this Agreement, any other party will be
entitled to specific performance, including the immediate issuance of a
temporary restraining order or preliminary injunction enforcing this Agreement,
and to judgment for damages caused by such breach, and to any other remedies
provided by applicable law.
Section
7.
Term.
This
Agreement shall terminate upon the voluntary written agreement of all parties
who are then bound by the terms of this Agreement, but in any event, this
Agreement shall terminate two years after the date hereof.
Section
8.Miscellaneous
8.1 Waivers
and Amendments.
(a) This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the parties hereto. The provisions of this Agreement may be waived
only by an instrument in writing executed by the party granting the waiver.
No
action taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other
or
subsequent breach.
(b) No
failure on the part of any party to exercise, and no delay in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
8.2 Notices.
All
notices, requests, demands and other communications that are required or may
be
given under this Agreement shall be in writing and shall be deemed to have
been
duly given or made: if by hand, immediately upon delivery; if by telex,
telecopier, telegram or similar electronic device, immediately upon sending,
provided it is sent on a business day, but if not, then immediately upon the
beginning of the first business day after being sent; if by Federal Express,
Express Mail or any other overnight delivery service, on the first business
day
after dispatch; if by registered or certified mail, return receipt requested,
upon receipt by the addressee. All notices, requests and demands are to be
given
or made to the parties at the following addresses (or to such other address
as
either party may designate by notice in accordance with the provisions of this
paragraph):
3
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If
to Xxxxxxxxx:
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Xxxxxxx
Xxxxxxxxx
|
|
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0000
Xxxx Xxxxx Xxxx
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Xxxxxxxx,
XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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With
a copy to:
|
Xxxxxx
X. Xxxxxx, Esq.
|
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Law
Offices of Xxxxxx X. Xxxxxx
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000
Xxxxxxxxx Xxxx
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Xxxxxxxxx,
XX 00000-0000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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If
to Lax:
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Xxxxxxx
Xxx
|
|
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0000
Xxxx Xxxxxxx Xxxxxx
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Xxxxxxxxx,
XX 00000
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Telephone:
(000) 000-0000
|
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Facsimile:
(000) 000-0000
|
||
|
If
to Xxxxxxxxx:
|
Xxxxxxx
Xxxxxxxxx
|
|
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0
Xxxxxx Xxxx
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Xxxxxx,
Xxx Xxxx 00000
|
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Telephone:
(000) 000-0000
|
||
|
Facsimile:
( ) -
|
8.3 Entire
Agreement.
This
Agreement set forth the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersede any prior
negotiations, agreements, understandings or arrangements between the parties
hereto with respect to the subject matter hereof.
8.4 Binding
Effect, Benefits, Construction.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto,
or
their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
8.5 Intentionally
Left Blank.
8.6 Applicable
Law, Venue, Jurisdiction.
All
questions concerning the construction, validity, enforcement and interpretation
of the Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits
to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in
any
suit, action or proceeding, any claim that it is not personally subject to
the
jurisdiction of any such court, that such suit, action or proceeding is improper
or inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. The parties hereby waive all
rights to a trial by jury. If either party shall commence an action or
proceeding to enforce any provisions of the Agreement, then the prevailing
party
in such action or proceeding shall be reimbursed by the other party for its
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding
4
8.7 Section
and Other Headings.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
8.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF,
the
Shareholders have signed this Agreement as of the date first written
above.
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/s/Xxxxxxx
Xxxxxxxxx
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/s/Xxxxxxx
Xxx
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Xxxxxxx
Xxxxxxxxx
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Xxxxxxx
Xxx
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/s/Xxxxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxxxxx
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