VOTING AGREEMENT
This VOTING AGREEMENT, dated as of this 29th day of April, 2005
("Agreement"), is by and among Xxxxxxx Reverse Merger Fund, LLC, a Delaware
limited liability company ("KRM Fund"), Xxxx Xxxx ("Guez") and each of the other
persons whose signature appears under the caption "Shareholders" on the
signature page hereof. For purposes of this Agreement, KRM Fund, Guez and each
person whose signature appears on the signature page hereof shall be referred to
herein individually as "Shareholder" and collectively as the "Shareholders".
WHEREAS, as of the date hereof, each Shareholder owns beneficially
of record or has the power to vote, or direct the vote of, shares of common
stock, par value $0.001 per share ("Common Stock") or shares of Series A
Convertible Preferred Stock, par value $0.001 per share ("Preferred Stock"), of
Marine Jet Technology Corp. ("Marine"), a Nevada corporation, as set forth
opposite such Shareholder's name on Exhibit A hereto (all such shares of Common
Stock and Preferred Stock and any shares of which ownership of record or the
power to vote is hereafter acquired by the Shareholders, whether by purchase,
conversion or exercise, prior to the termination of this Agreement being
referred to herein as the "Shares");
WHEREAS, Marine, Antik Denim, LLC ("Antik"), and the Shareholders
have entered into an Exchange Agreement, dated April 14, 2005 (as the same may
be amended from time to time) (the "Exchange Agreement") which provides, upon
the terms and subject to the conditions thereof, for the exchange of all of the
Interests of Antik for Marine's Preferred Shares (the "Exchange");
WHEREAS, Marine's Preferred Shares are convertible into the
Conversion Shares pursuant to the Certificate of Designations;
WHEREAS, as a condition to the consummation of the Exchange
Agreement, Guez has requested that the Shareholders agree, and the Shareholders
have agreed, severally, to enter into this Agreement; and
WHEREAS, the capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the Exchange Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Exchange Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR DIRECTORS
SECTION 1.01 Vote in Favor of the Directors. During the period
commencing on the date hereof and terminating one year thereafter, each
Shareholder, in its capacity as a Shareholder of Marine (or successor), agrees
to vote (or cause to be voted) all Shares directly or indirectly owned by the
Shareholder or over which the Shareholder has the beneficial ownership or the
right to vote and all Shares which such Shareholder acquires directly or
indirectly or has the beneficial ownership or right to vote in the future, at
any meeting of the Shareholders of Marine, and in any action by written consent
of the Shareholders of Marine, in favor of the election of the Director
Designees, as defined herein, to the Board of Directors of Marine and will not
vote (or cause to be voted) for the removal of the Director Designees from the
Board of Directors. Any Director Designee may be removed from the Board of
Directors in the manner allowed by law and Marine's governing documents, but
with respect to the Director Designee nominated by KRM Fund pursuant to Section
1.03 (b), in the event such Director Designee is removed as a director of the
Company, KRM Fund shall have the right to designate and nominate such removed
director's replacement.
SECTION 1.02 Size of Board of Directors. The Shareholders agree that
the Board of Directors of Marine shall consist of three to five persons during
the term hereof, with the actual number to be determined by resolution of the
Board of Directors and to initially equal three (3) members effective as of the
Closing, and the Shareholders will take all such action to set the number of
directors consistent with this section 1.02.
SECTION 1.03 Director Designees. The Director Designees will be as
follows:
(a) so long as Guez is employed by or a shareholder of Marine,
for Guez and for one person (if the number of directors is three), two persons
(if the number of directors is four), and three persons (if the number of
directors is five), each designated by Guez, provided, however, that if Guez
elects, he may designate an additional director in substitution for himself; and
(b) for one person designated by KRM Fund.
Neither the Shareholders, nor any of the officers, directors,
shareholders, members, managers, partners, employees or agents of any
Shareholder, makes any representation or warranty as to the fitness or
competence of any Director Designee to serve on the Board of Directors by virtue
of such party's execution of this Agreement or by the act of such party in
designating or voting for such Director Designee pursuant to this Agreement.
SECTION 1.04 Term of Agreement. The obligations of the Shareholders
pursuant to this Article I shall terminate on the first anniversary of the date
of this Agreement.
ARTICLE II
VOTING FOR CORPORATE ACTIONS
SECTION 2.01 Vote in Favor of Corporate Matters. During the term of
this Agreement, each Shareholder hereby agrees and covenants to vote or cause to
be voted all of his Shares then owned by him, or over which he has voting power,
and all Shares which such Shareholder acquires directly or indirectly or has the
beneficial ownership or right to vote in the future, at any regular or special
meeting of shareholders, or, in lieu of any such meeting, to give his written
consent in any action by written consent of the shareholders, in favor of each
of the following items ("Actions"):
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(a) To approve a 1 for 29 reverse stock split with special
treatment for certain of Marine's stockholders to preserve round lot
stockholders ("Reverse Split");
(b) To approve the change of the name of Marine to a name
selected by Guez;
(c) To approve the increase in the number of authorized shares
of common stock of Marine from 45,000,000 to 75,000,000;
(d) To approve the adoption of a stock incentive plan ("Stock
Plan"); and
(e) All such other actions as shall be necessary or desirable
in connection with or related to the foregoing actions in (a) through (d) above
including, without limitation, any amendment to the articles of incorporation of
Marine to effect the foregoing.
SECTION 2.02 Grant of Proxy; Further Assurance. In the event that,
in connection with any regular or special meeting of shareholders, or, in lieu
of any such meeting, with a written consent in any action by written consent of
the shareholders, within five (5) days following a written request thereof by
Guez (or a representative thereof), a Shareholder fails to vote or cause to be
voted all of his Shares in favor of the Actions in accordance with the
instructions set forth in such written request, or to execute a written consent
in connection therewith, each Shareholder, by this Agreement, with respect to
all Shares over which it has voting authority and any Shares hereinafter
acquired by such Shareholder over which it may have voting authority, does
hereby irrevocably constitute and appoint Guez, or any nominee, with full power
of substitution, as his or its true and lawful attorney and proxy, for and in
his or its name, place and stead, to vote each of such Shares as such
Shareholder's proxy, at every annual, special or adjourned meeting of the
shareholders of Marine (including the right to sign his or its name (as
Shareholder) to any consent, certificate or other document relating to Marine
that may be permitted or required by applicable law) in favor of the adoption
and approval of each of the Actions. This proxy extends to no other matter,
except for the Actions as enumerated above. Each Shareholder shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Marine the power to carry out the provisions
of this Agreement
SECTION 2.03 Termination. The obligations of each Shareholder
pursuant to this Article II shall terminate upon the adoption and approval of
the Actions by the shareholders of Marine.
SECTION 2.04 Obligations as Director and/or Officer. If a
Shareholder or any of its affiliates or nominees is a member of the board of
directors of Marine (a "Director") or an officer of Marine (an "Officer"),
nothing in this Agreement shall be deemed to limit or restrict the Director or
Officer acting in his or her capacity as a Director or Officer of Marine, as the
case may be, and exercising his or her fiduciary duties and responsibilities, it
being agreed and understood that this Agreement shall apply to Shareholder
solely in his or her capacity as a shareholder of Marine and shall not apply to
his or her actions, judgments or decisions as a Director or Officer of Marine.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby severally represents warrants and covenants
to the other Shareholders as follows:
SECTION 3.01 Authorization. Such Shareholder has full legal capacity
and authority to enter into this Agreement and to carry out such person's
obligations hereunder. This Agreement has been duly executed and delivered by
such Shareholder, and (assuming due authorization, execution and delivery by the
other Shareholders) this Agreement constitutes a legal, valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
SECTION 3.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
will not, (i) conflict with or violate any Legal Requirement applicable to such
Shareholder or by which any property or asset of such Shareholder is bound or
affected, or (ii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of any encumbrance on any property or asset of
such Shareholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The execution and delivery of this Agreement by such
Shareholder does not, and the performance of this Agreement by such Shareholder
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority, domestic or
foreign, except (i) for applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay the
performance by such Shareholder of such Shareholder's obligations under this
Agreement.
SECTION 3.03 Litigation. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of such Shareholder
or any of such Shareholder's affiliates, threatened against such Shareholder or
any of such Shareholder's affiliates or any of their respective properties or
any of their respective officers or directors, in the case of a corporate entity
(in their capacities as such) that, individually or in the aggregate, would
reasonably be expected to materially delay or impair such Shareholder's ability
to consummate the actions contemplated by this Agreement. There is no judgment,
decree or order against such Shareholder or any of such Shareholder's
affiliates, or, to the knowledge of such Shareholder of any of such
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Shareholder's affiliates, any of their respective directors or officers, in the
case of a corporate entity (in their capacities as such), that would prevent,
enjoin, alter or materially delay any of the actions contemplated by this
Agreement, or that would reasonably be expected to have a material adverse
effect on such Shareholder's ability to consummate the actions contemplated by
this Agreement.
SECTION 3.04 Title to Shares. Such Shareholder is the legal and
beneficial owner of its Shares free and clear of all Liens.
SECTION 3.05 Absence of Claims. Each Shareholder has no knowledge of
any causes of action or other claims that could have been or in the future might
be asserted by the Shareholder against Marine or any of its predecessors,
successors, assigns, directors, employees, agents or representatives arising out
of facts or circumstances occurring at any time on or prior to the date hereof
and in any way relating to any duty or obligation of Marine or any Shareholder.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by overnight
courier service, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 4.01):
(a) If to any Shareholder (other than KRM Fund):
Xxxx Xxxx c/o Antik Denim, LLC 0000 X.
Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxx 00000
000-000-0000 telephone 000-000-0000 telecopy
with a mandatory copy to
Xxxxxx Xxxxxxxx & Markiles, LLP
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
(000) 000-0000 telephone
(000) 000-0000 telecopy
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(b) If to KRM Fund:
Xxxxxxx Reverse Exchange Fund, LLC
Xx. Xxxxxxx X. Xxxxxxx, Manager
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, XX XXX 00000-0000
SECTION 4.02 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.03 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 4.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 4.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.06 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado applicable to
contracts executed in and to be performed in that State.
SECTION 4.07 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court in Colorado.
SECTION 4.08 No Waiver. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 4.09 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
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each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 4.10 Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives all right to trial by jury in any action,
proceeding or counterclaim (whether based in contract, tort or otherwise)
arising out of or relating to this Agreement or the Actions of the parties
hereto in the negotiation, administration, performance and enforcement thereof.
SECTION 4.11 Exchange Agreement. All references to the Exchange
Agreement herein shall be to such agreement as may be amended by the parties
thereto from time to time.
[Signature page(s) follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
SHAREHOLDERS:
XXXXXXX REVERSE MERGER FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx, Manager
/s/ Xxxx Xxxx
---------------------------------------
Xxxx Xxxx, Individually
/s/ Meyer Abbou
---------------------------------------
Meyer Abbou, Individually
/s/ Xxxxxxxx Xxxxxx
---------------------------------------
Xxxxxxxx Xxxxxx, Individually
/s/ Alex Caugant
---------------------------------------
Alex Caugant, Individually
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EXHIBIT A
SHAREHOLDERS
Number of Shares Owned Number of
Name of Shareholder Beneficially and of Record (1) Options/Warrants
------------------- ------------------------------ ----------------
Xxxxxxx Reverse Merger Fund LLC 20,306,500 Common Stock 0
Xxxx Xxxx 635,643 Series A Preferred (2) 0
Meyer Abbou 69,129 Series A Preferred (2) 0
Xxxxxxxx Xxxxxx 69,129 Series A Preferred (2) 0
Alex Caugant 69,129 Series A Preferred (2) 0
(1) Prior to giving effect to the Reverse Split
(2) Each share of Series A Preferred Stock is convertible into 841 shares of
Marine's common stock, with preferred stockholders voting with common
stockholders on an as converted basis.
