EXHIBIT 10.15
EXECUTION COPY
VOTING AGREEMENT
THIS AGREEMENT (the "Agreement") dated as of October 8, 1999, by and
among XXXX XXXXX ("Xxxxx") and XXXXXXXXX XXXXX, both residing at 0000 Xxxxxxx
Xxxxx, Xxxxx xxx Xxx, Xxxxxxxxxx 00000 (collectively, the "Irwins"), and R.
XXXXXXX XXXXXX ("Xxxxxx") in his capacity as a shareholder and Chairman of the
Board of Directors of Omni Nutraceuticals, Inc. a Utah corporation having its
principal place of business at 00000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, XX
00000 ("Omni").
W I T N E S S E T H:
WHEREAS, the Irwins are the registered owners of 15,468,355 shares of
common stock, par value $.01 per share (the "Common Stock") of Omni,
constituting approximately 54.92% of all the issued and outstanding shares of
Common Stock of Omni; and
WHEREAS, the Irwins have this day entered into a Settlement Agreement
with Omni dated of even date hereof (the "Settlement Agreement") in connection
with the settlement of certain claims which Xxxxx and Omni have asserted against
each other; and
WHEREAS, in order to implement the terms of the settlement set forth in
the Settlement Agreement, the parties hereto desire, among other things, to
provide for stable and independent management of Omni and to enter into a voting
agreement in compliance with the provisions of Section 16-10a-731 of the Utah
Business Corporation Act ("UBCA").
NOW THEREFORE, the parties hereto agree as follows:
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1. CERTAIN DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, all capitalized terms used in this Agreement shall
have the meanings ascribed to such terms in the Settlement Agreement.
As used herein, the following terms shall have the following meanings:
(a) "Shareholders" shall mean the Irwins and Xxxxxx.
(b) "Voting Securities" of Omni shall mean the shares of Common Stock
of Omni as well as any other securities of Omni entitled to vote generally for
the election of directors and any security convertible into or exchangeable or
exercisable for the purchase of common stock or other securities entitled to
vote for directors of Omni.
2. VOTING AND OTHER AGREEMENTS. (a) Until this Agreement terminates in
accordance with Section 2(i) hereof, all shares of Voting Securities owned by
the Shareholders, or by any transferee of such securities, shall be voted in all
elections of directors as follows:
(i) as for Xxxxxx'x shares; to be voted as a unit for the
candidates for Class I and Class II directors of Omni named by Xxxxx in a
written notice delivered to Xxxxxx no less than five (5) days before
definitive proxy materials are sent to shareholders of Omni in connection
with a regular election and no less than forty-eight (48) hours before
any other election of directors; and
(ii) as for the Irwins' shares; to be voted as a unit for the
candidates as for Class I and Class II directors to be named by Xxxxxx in
a written notice delivered to Xxxxx no less than five (5) days before
definitive proxy materials are sent to shareholders of Omni in connection
with a regular election and no less than forty-eight (48) hours before
any other election of directors; and
(iii) as for the Shareholders' shares; to be voted as a unit for
the candidate for Class III director to be named by the two Class II
directors in a written notice delivered to the Shareholders no less than
five (5) days before definitive proxy materials are sent to shareholders
of Omni in connection with a regular election and no less than
forty-eight (48) hours before any other election of directors.
In the event that there is a shareholder vote held to remove a director,
the Shareholders each agree (i) to vote their shares against any removal of any
Class II director unless such removal is due to such director's embezzlement of
funds of Omni or his conviction of a felony or as a result of any governmental
investigation or
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proceeding which may result in such director being barred from holding office
in a public company, (ii) to vote their shares as set forth above with
respect to the election of Class I directors as directed by such other party
(Xxxxxx or Xxxxx, as the case may be) whose director is the subject of such
vote to remove and (iii) to vote their shares as set forth above with respect
to the election of a Class III director as directed by the Class II directors
as set forth above with respect to the election of Class III directors.
In the event that there is a vacancy created in the board of
directors, whether by removal, resignation or otherwise, the Shareholders
each agree to vote their shares as set forth above in favor of the candidate
for replacement named by such other party (Xxxxx or Xxxxxx, as the case may
be), or the Class II directors, whose director's absence creates such vacancy.
(b) IRREVOCABLE PROXIES. The Irwins and Xxxxxx each agree to give
the other (Xxxxxx or Xxxxx, as the case may be) by their execution of this
Agreement and the Irrevocable Proxy in the forms attached hereto as Exhibit
A-1 and A-2, respectively, in order to secure the rights set forth above, an
irrevocable proxy (the "Irrevocable Proxy") of such shareholder, with full
power of substitution, to vote all of their shares of Voting Securities (i)
at all meetings of the shareholders of Omni for the election of directors of
Omni, whenever and wherever the same are held, or at any adjournment thereof,
specifically on the question of, and limited to the election of directors as
set forth above, if such other party (Xxxxxx or the Irwins, as the case may
be) does not vote as set forth above; and (ii) by means of a Written Consent
of Shareholders specifically on the question of, and limited to the election
of directors as set forth above, if such other party (Xxxxxx or the Irwins,
as the case may be) does not vote as set forth above. In addition, the Irwins
hereby agree to give Xxxxxx by their execution of this Agreement and the
Irrevocable Proxy in the form attached hereto as Exhibit A-1 their
irrevocable proxy, with full power of substitution, to vote all of their
shares of Voting Securities at the next annual meeting of shareholders (or
special meeting in lieu of annual meeting) or at any adjournment thereof,
whenever or wherever held, specifically limited to the approval of the matter
set forth in Section 2(d)(iii) below.
(c) AMENDMENTS TO CERTIFICATE OF INCORPORATION AND BY-LAWS. Until
this Agreement terminates in accordance with Section 6 hereof, all shares of
Voting Securities held by the Shareholders, or any transferee of such
securities, shall be voted against any proposed amendment to the Articles of
Incorporation or to the By-Laws of Omni, unless the parties hereto agree to
vote in favor of such amendment, such agreement to be memorialized no later
than five (5) days before definitive proxy materials are sent to Omni
shareholders in connection with any meeting of the shareholders; or no later
than the five (5) days before the Record Date of a solicitation of written
consents of shareholders.
(d) COVENANTS. (i) Until this Agreement terminates in accordance
with Section 2(i) hereof, the Irwins shall not, individually or as a member
of any group
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(as defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), and the rules and regulations promulgated
thereunder), directly or indirectly, seek to (A) effect or participate in a
"Change in Control" of the Company as defined in Section 4(e) of the
Employment Agreement (as defined in the Settlement Agreement), which
definition is hereby incorporated by reference herein as if set forth in
full, including, without limitation, voting any shares of Voting Securities
which they beneficially own individually or as a member of a group (x) to
approve any merger or consolidation involving the Company or sale of all or
substantially all of the assets of the Company, or (y) to transfer beneficial
ownership of any of their shares of Common Stock in one or more transactions
(other than for any transfers of Voting Securities to transferees who have
acquired such Securities in ordinary unsolicited brokers' transactions
effected through the facilities of a securities exchange on which the Common
Stock is then listed or in the over-the-counter market pursuant to the
provisions of Rule 144 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), or in a widely-distributed public offering of
such Securities registered under the Securities Act, or in a transaction
approved by the Board of Directors of Omni, or in a private transaction where
the transferee agrees to become bound by the provisions hereof, or in one or
more private transactions which do not exceed in any 12 month period
commencing the date hereof, individually or in the aggregate, 1,000,000
shares), in connection with any such Change in Control, and (B) affect
management of the Company (except in Xxxxx'x capacity as a director while
participating in Board of Directors' meetings). As used in this Agreement
the term "beneficial ownership" or any variation thereof shall have the
meaning provided for in Rule 13d-3 promulgated under the Exchange Act, as the
same may be in effect from time to time.
(ii) For so long as Xxxxx serves as a director of Omni he hereby
agrees that he will not and will cause his wife not (A) to amend or terminate
Xxxxxx'x Employment Agreement (and Xxxxx agrees to vote in favor of renewing
such Agreement upon terms acceptable to a majority of the Board of Directors of
the Company) or (B) without Xxxxxx'x consent, to amend or terminate Xxxxx
Xxxxxxx'x Employment Agreement.
(iii) The Irwins agree to vote all of their shares of Voting
Securities as a unit at the next meeting of shareholders of Omni in favor of
increasing the maximum number of shares of Common Stock that may be issued
pursuant to stock options or other stock awards granted pursuant to Omni's Long
Term Stock Incentive Plan to four million five hundred thousand (4,500,000)
shares.
(iv) Xxxxxx agrees, in his capacity as a director of Omni, to
approve the Settlement Agreement, and in his capacity as a shareholder of Omni,
agrees not to initiate any legal proceeding against the Irwins in respect of any
matters for which Omni has released Xxxxx pursuant to the provisions of Section
5 of the Settlement Agreement. Nothing in the foregoing, however, shall limit
any rights Xxxxxx may have in the event that the Irwins, or either of them,
breaches the terms and conditions of the Settlement Agreement or any other
agreement or undertaking to which they, or either
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of them, is a party or by which they, or either of them, is bound, related
thereto or delivered in connection therewith, including, without limitation,
the provisions hereof.
(e) AFTER-ACQUIRED VOTING SECURITIES. The terms and provisions of
this Agreement shall apply to all of the Voting Securities now owned or which
may be issued hereafter to the Shareholders or their transferees in consequence
of any additional issuance, purchase, conversion of other securities of Omni,
exchange or reclassification of shares, corporate reorganization or any other
form of recapitalization or consolidation or merger or share split-up or share
dividend or distribution or which are acquired by the Shareholders in any manner
whatsoever. Nothing in the foregoing shall apply to the securities of
XxxxxxXxxx.xxx.
(f) USE OF WRITTEN CONSENTS. The Irwins and Xxxxxx each agree that
they will not exercise their right to vote by means of a Written Consent of
Shareholder without the prior written agreement of the other party (Xxxxxx or
Xxxxx, as the case may be).
(g) ELECTION UPON WRITTEN CONSENT. Pursuant to Section 16-10a-704 of
the UBCA, upon execution of this Agreement, this Agreement shall constitute the
duly executed Written Consent of Shareholders of the Irwins and of Xxxxxx to the
election of the directors whose names are set forth on Exhibit B hereto.
(h) REMEDIES. Without regard to whether all of the foregoing matters
will be deemed material or important by any court or other tribunal of competent
jurisdiction, the undersigned stipulate that as between them, they will be
conclusively deemed to be material and important and to affect severely the
effective and successful conduct of the business of Omni, that money damages
would not be a sufficient remedy for any breach of this Agreement and that in
the event of a breach or threatened breach by any of the parties hereto of the
provisions of this Agreement, the other parties shall be entitled to specific
performance and injunctive relief as remedies for any such breach. Such
remedies shall not be deemed to be exclusive remedies for the breach of this
Agreement but shall be in addition to all other remedies available at law or in
equity.
(i) TERM. This Agreement shall terminate on the earlier of the fifth
(5th) anniversary hereof or the date on which the Irwins or Xxxxxx or their
successors cease to be the beneficial owners of at least 1,432,250 and 450,000
shares of Voting Securities, respectively. This Agreement may be amended or
terminated by written agreement between the undersigned.
3. MISCELLANEOUS.
(a) NOTICES. Except as otherwise expressly herein provided,
all notices under this Agreement shall be in writing and shall be deemed
received upon
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personal delivery against receipt therefor, or if sent by mail, three (3)
business days after deposit in the United States Postal Service, first class,
postage prepaid, registered or certified, return receipt requested. All
notices given hereunder shall be addressed:
In the case of the Irwins to: Mr. Xxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxx xxx Xxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx Xxxxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Or in the case of Xxxxxx to: R. Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
With a copy to: Xxxxxxxxx Xxxxxxxx
Xxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
or to such other address or to such other person as Omni or a party hereto shall
have last designated by notice to the other parties hereto.
(b) INTEGRATION AND MODIFICATION. This Agreement contains the
entire agreement among the parties hereto with respect to the transactions
contemplated hereby and there are no agreements, warranties or representations,
which are not set forth herein. All prior negotiations, agreements and
understandings are superseded hereby. This Agreement may not be modified or
amended except by an instrument in writing signed by or on behalf of the parties
hereto.
(c) GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Utah, without
giving effect to the principles of conflicts of laws thereof.
(d) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and the heirs and legal
representatives of the parties hereto and shall be binding upon all transferees
of the Voting Securities and their heirs,
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legal representatives, successors and assigns (other than for any transferees
of Voting Securities who have acquired such Securities in ordinary
unsolicited brokers' transactions effected through the facilities of a
securities exchange on which the Common Stock is then listed or in the
over-the-counter market pursuant to the provisions of Rule 144 promulgated
under the Securities Act, or in a widely distributed public offering of such
Securities registered under the Securities Act, or in a transaction approved
by the Board of Directors of Omni, or in one or more private transactions
effected by either the Irwins or Xxxxxx which do not exceed in any 12 month
period commencing the date hereof, individually or in the aggregate,
1,000,000 shares). Neither this Agreement nor any of the rights granted
hereunder may be assigned by any party hereto without the prior written
consent of the other parties.
(e) COUNTERPARTS. This Agreement may be executed
simultaneously 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.
(f) HEADINGS. The Section and Subsection headings in this
Agreement are for convenience of reference only and shall not be deemed to alter
or affect any provision hereof.
(g) WAIVER. No delay on the part of any party here to in
exercising any power or right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any power or right hereunder preclude
other or further exercise there of or the exercise of any other power or right.
No waiver shall be enforceable against any party hereto unless in writing,
signed by the party against whom such waiver is claimed, and shall be limited
solely to the one event.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
/s/ Xxxx Xxxxx
----------------------------------
XXXX XXXXX
/s/ Xxxxxxxxx Xxxxx
----------------------------------
XXXXXXXXX XXXXX
/s/ R. Xxxxxxx Xxxxxx
----------------------------------
R. XXXXXXX XXXXXX
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EXHIBIT A-1
IRREVOCABLE PROXY FOR THE
VOTING AGREEMENT OF
XXXX AND XXXXXXXXX XXXXX AND R. XXXXXXX XXXXXX
By their execution hereof and in order to secure the obligations of the
undersigned set forth in the Voting Agreement ("Voting Agreement") dated October
__, 1999, by and among Xxxx Xxxxx, Xxxxxxxxx Xxxxx and R. Xxxxxxx Xxxxxx, each
of Xxxx Xxxxx and Xxxxxxxxx Xxxxx hereby irrevocably constitutes and appoints R.
Xxxxxxx Xxxxxx and his successors and assigns under the Voting Agreement as
their true and lawful attorney-in-fact, to: (1) vote, in accordance with the
Voting Agreement, all shares of common stock of Omni Nutraceuticals, Inc. (the
"Company") which the undersigned may be entitled (whether now owned or hereafter
acquired) to vote upon the election of directors at any annual or special
meeting of the shareholders of the Company; (2) vote, in accordance with the
Voting Agreement, by means of a Written Consent of Shareholders, all shares of
common stock of the Company which the undersigned may be entitled (whether now
owned or hereafter acquired) to vote upon the election of directors; (3) vote,
in accordance with the Voting Agreement, all shares of common stock of the
Company which the undersigned may be entitled (whether now owned or hereafter
acquired) to vote at any annual or special meeting of the shareholders of the
Company to approve an amendment to the Company's Long Term Stock Incentive Plan
to increase the number of shares of common stock that may be awarded pursuant to
stock options or other stock awards under such Plan to four million five hundred
thousand (4,500,000) shares and (4) execute, acknowledge, swear to and fill in
the undersigned's name, place, and stead any consent, approval, or other
documents to be executed by the shareholders in connection with such elections.
The Proxy granted hereby is irrevocable and shall be deemed coupled with an
interest in the Voting Agreement for the term stated therein and it shall
survive either of the undersigned's disability and insolvency.
IN WITNESS WHEREOF, Xxxx and Xxxxxxxxx Xxxxx have each executed this
Irrevocable Proxy this ____ day of October 1999.
/s/ Xxxx Xxxxx
-----------------------------------
XXXX XXXXX
/s/ Xxxxxxxxx Xxxxx
-----------------------------------
XXXXXXXXX XXXXX
15,468,355 Shares of Common Stock owned as Joint Tenants with Right of
Survivorship at time of execution
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EXHIBIT A-2
IRREVOCABLE PROXY FOR THE
VOTING AGREEMENT OF
XXXX AND XXXXXXXXX XXXXX AND R. XXXXXXX XXXXXX
By its execution hereof and in order to secure the obligations of the
undersigned set forth in the Voting Agreement ("Voting Agreement") dated
October __, 1999, by and among Xxxx Xxxxx, Xxxxxxxxx Xxxxx and R. Xxxxxxx
Xxxxxx, R. Xxxxxxx Xxxxxx hereby irrevocably constitutes and appoints Xxxx
Xxxxx as his true and lawful attorney-in-fact, to: (1) vote, in accordance
with the Voting Agreement, all shares of common stock of Omni Nutraceuticals,
Inc. (the "Company") which the undersigned may be entitled (whether now owned
or hereafter acquired) to vote upon the election of directors at any annual
or special meeting of the shareholders of the Company; (2) vote, in
accordance with the Voting Agreement, by means of a Written Consent of
Shareholders, all shares of common stock of the Company which the undersigned
may be entitled (whether now owned or hereafter acquired) to vote upon the
election of directors; and (3) execute, acknowledge, swear to and fill in the
undersigned's name, place, and stead any consent, approval, or other
documents to be executed by the shareholders in connection with such
elections. The Proxy granted hereby is irrevocable and shall be deemed
coupled with an interest in the Voting Agreement for the term stated therein
and it shall survive the undersigned's disability and insolvency.
IN WITNESS WHEREOF, R. Xxxxxxx Xxxxxx has executed this Irrevocable Proxy
this 8th day of October 1999.
/s/ R. Xxxxxxx Xxxxxx
-----------------------------------
R. XXXXXXX XXXXXX
5,589,653 Shares of Common Stock owned at time of execution
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EXHIBIT B
BOARD OF DIRECTORS
OF
OMNI NUTRACEUTICALS, INC.
R. Xxxxxxx Xxxxxx (Class I nominated by Xxxxxx)
Xxxx Xxxxx (Class I nominated by Xxxxx)
Xxxxxx Xxxxxx (Class II nominated by Xxxxx)
Xxxxxxxx Xxxxxxx (Class II nominated by Xxxxxx)
Class III director to be nominated by Messrs. Valero and Diamond within 30 days
after the date of the Voting Agreement.
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