EXHIBIT 3.5
VOTING AGREEMENT
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THIS VOTING AGREEMENT (the "AGREEMENT"), dated as of November __,
2003, is by and between the stockholders of Utix Group, Inc. listed on EXHIBIT A
attached hereto (each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS")and
Utix Group, Inc. (fka Chantal Skin Care Corporation), a Delaware corporation
(the "COMPANY"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Share Exchange Agreement (as defined below).
RECITALS
WHEREAS, the Company, Corporate Sports Incentives, Inc., a New
Hampshire corporation ("CSI"), Xxxx Xxxxxxx, an individual (the "Utix Principal
Stockholder"), and the stockholders of CSI (the "CSI Stockholders") propose to
enter into a Share Exchange Agreement, dated ________ __, 2003 (as such
agreement may be modified or amended from time to time, the "SHARE EXCHANGE
AGREEMENT"), whereby (i) the CSI Stockholders will exchange their shares of CSI
common stock (the "Exchange") for shares of common stock of the Company (the
"Exchange Shares") and (ii) CSI will become a wholly-owned subsidiary of the
Company, upon the terms and subject to the conditions set forth in the Share
Exchange Agreement;
WHEREAS, each Stockholder owns certain shares of common stock of the
Company (the "COMMON STOCK"); and
WHEREAS, pursuant to a condition precedent in the Share Exchange
Agreement, the Company has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, in consideration of the promises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each of
the Stockholders represents and warrants to the Company that (a) such
Stockholder owns beneficially (as defined below) the number of shares of Common
Stock set forth opposite such Stockholder's name on EXHIBIT A attached hereto
(such shares of Common Stock, the "SUBJECT SHARES"), free and clear of all Liens
or Restrictions and, except for this Agreement and the Share Exchange Agreement,
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character to which such Stockholder is a party relating to
the pledge, disposition or Voting (as defined in Section 2) of such Subject
Shares and there are no Voting trusts or Voting agreements with respect to such
Subject Shares, (b) such Stockholder has not appointed or granted any proxy,
which appointment or grant is still effective with respect to the Subject
Shares, (c) such Stockholder has the capacity to enter into this Agreement, (d)
such Stockholder has full power and authority to enter into, execute and deliver
this Agreement and to perform fully such Stockholder's obligations hereunder,
and this Agreement has been duly executed and delivered and constitutes the
legal, valid and binding obligation of such Stockholder enforceable against such
Stockholder in accordance with its terms (except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, or by principles governing
the availability of
equitable remedies), (e) no notices, reports or other filings are required to be
made by such Stockholder with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by such Stockholder from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement by such Stockholder, and (f) the execution, delivery and performance
of this Agreement by such Stockholder does not, and the consummation by such
Stockholder of the transactions contemplated hereby will not, (i) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation,
modification or acceleration) (whether after the giving of notice or the passage
of time or both) under any Contract to which such Stockholder is a party or by
which any of its assets are bound, (ii) result in the creation of any Lien on
any of the assets of such Stockholder or (iii) result in a violation of, under
or pursuant to any law, rule, regulation, order, judgment or decree applicable
to such Stockholder or by which any of its assets are bound. For the purposes of
this Agreement, a Person "beneficially" owns a security if such Person, directly
or indirectly, through any contract, arrangement, understanding or otherwise has
(A) the power to vote, or direct the vote of such security and (B) the power to
dispose, or direct the disposition of such security.
2. AGREEMENT TO DELIVER PROXY. Each of the Stockholders severally
agrees to deliver to the Company on the date hereof an irrevocable proxy
substantially in the form attached hereto as EXHIBIT B to Vote such
Stockholder's Subject Shares (a) in favor of approval and adoption of the stock
option plan attached hereto as EXHIBIT C (the "Plan") at any meeting of the
stockholders of the Company at which such Plan is considered and at every
adjournment or postponement thereof and (b) against any action, approval or
agreement that would compete with or materially impede, interfere with,
adversely affect or tend to discourage the Plan or inhibit the timely adoption
of the Plan, including, without limitation, any alternative plan, in each case,
to the same extent and with the same effect as such Stockholder might or could
do under applicable law, rules and regulations. The proxy delivered by such
Stockholder pursuant to this Section 2 shall be irrevocable during the term of
this Agreement to the extent permitted under New York law. For purposes of this
Agreement, "VOTE" shall include voting in person or by proxy in favor of or
against any action, otherwise consenting or withholding consent in respect of
any action (including, without limitation, consenting in accordance with Section
228 of the Delaware General Corporation Law) or taking other action in favor of
or against any action. "VOTING" shall have a correlative meaning. Each of the
Stockholders hereby revokes any and all previous proxies granted with respect to
any of the Subject Shares and shall not hereafter, unless and until this
Agreement terminates pursuant to Section 9 hereof, purport to grant any other
proxy or power of attorney with respect to any of the Subject Shares or enter
into any agreement (other than this Agreement), arrangement or understanding
with any Person, directly or indirectly, to vote, grant any proxy or give
instructions with respect to the voting of any of the Subject Shares. Each
Stockholder also severally agrees to use his reasonable best efforts to take, or
cause to be taken, all action, and do, or cause to be done, all things necessary
or advisable in order to consummate and make effective the transactions
contemplated by this Agreement. Each of the Stockholders acknowledges receipt
and review of a copy of the Share Exchange Agreement.
3. NO PROXY SOLICITATIONS. Each of the Stockholders severally
agrees that such Stockholder will not, nor will such Stockholder permit any
entity or person under such Stockholder's control, (a) to solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended) in
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opposition to or in competition with the adoption of the Plan or otherwise
encourage or assist any party in taking or planning any action which would
compete with or materially impede, interfere with, adversely effect or tend to
discourage the Plan or inhibit the timely adoption of the Plan, (b) to directly
or indirectly encourage, initiate or cooperate in a stockholders' Vote or action
by consent of the Company's stockholders in opposition to or in competition with
the adoption of the Plan or (c) to become a member of a "group" (as such term is
used in Section 13(d) of the Securities Exchange Act of 1934, as amended) with
respect to any voting securities of the Company for the purpose of opposing or
competing with the adoption of the Plan.
4. FIDUCIARY DUTIES. Notwithstanding anything to the contrary in
this Agreement, none of the agreements of the Stockholders contained herein
shall restrict any Stockholder who is a director or an officer of the Company
from taking any action, in his or her capacity, respectively, (a) as a director,
if such director believes such action is necessary to satisfy such director's
fiduciary duties to the stockholders of the Company, or (b) as an officer, if
such officer is acting at the direction of the board of directors of the Company
and in accordance with the terms and provisions of the Share Exchange Agreement.
5. NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Subject Shares. All rights,
ownership and economic benefits of and relating to the Subject Shares shall
remain vested in and belong to such Stockholder.
6. TRANSFER AND ENCUMBRANCE. On or after the date hereof and
during the term of this Agreement, such Stockholder agrees not to transfer,
sell, offer, exchange, pledge or otherwise dispose of or encumber any of such
Stockholder's Subject Shares except as pursuant to the terms of this Agreement.
7. NO VOTING TRUSTS. Each of the Stockholders severally agrees
that such Stockholder will not, nor will such Stockholder permit any Person
under such Stockholder's control to, deposit any of such Stockholder's Subject
Shares in a Voting trust or subject any of such Stockholder's Subject Shares to
any arrangement with respect to the Voting of the Subject Shares inconsistent
with this Agreement.
8. SPECIFIC PERFORMANCE. Each party hereto acknowledges that it
will be impossible to measure in money the damage to the other party if a party
hereto fails to comply with any of the obligations imposed by this Agreement,
that every such obligation is material and that, in the event of any such
failure, the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or damages, is the appropriate remedy for
any such failure and will not oppose the granting of such relief on the basis
that the other party has an adequate remedy at law. Each party hereto severally
agrees that it will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with any other party's seeking or
obtaining equitable relief.
9. TERM AND TERMINATION. Subject to Section 13(i), the term of
this Agreement shall commence on the date hereof, and such term and this
Agreement shall terminate upon the earliest to occur of (i) one (1) year from
the date of approval of the Plan by the Board of
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Directors of the Company or (ii) the date on which the Share Exchange Agreement
is terminated in accordance with its terms.
10. CERTAIN EVENTS; LEGEND ON STOCK CERTIFICATES. Each of the
Stockholders severally agrees that this Agreement and the obligations hereunder
shall attach to such Stockholder's Subject Shares and shall be binding upon any
entity or person to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or otherwise, including such
Stockholder's heirs, guardians, administrators or successors. Each certificate
representing the Subject Shares shall bear a legend substantially in the
following form:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, ENCUMBRANCE OR OTHER
SIMILAR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
AND THE RIGHTS OF THE HOLDER OF SUCH SECURITIES ARE SUBJECT TO A
VOTING AGREEMENT DATED NOVEMBER __, 2003 AMONG THE COMPANY AND A
CERTAIN HOLDER OF ITS OUTSTANDING CAPITAL STOCK. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE
HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
COMPANY."
11. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement (including
the Exhibit and the other documents and instruments referred to herein)
constitutes the entire agreement and supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified, and
no provisions hereof may be modified or waived, except by an instrument in
writing signed by each of the parties hereto. No waiver of any provisions hereof
by any party shall be deemed a waiver of any other provisions hereof by any such
party, nor shall any such waiver be deemed a continuing waiver of any provision
hereof by such party.
12. NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
(by courier service or otherwise) or mailed, certified or registered mail with
postage prepaid, or sent by confirmed telecopier, as follows:
(a) If to the Company:
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxxxx, Savage, Kaplowitz, Wolf & Marcus, LLP
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
0
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to a Stockholder, at the address on record with the Company
for that Stockholder,
or to such other Person or address as any party shall specify by notice in
writing to the other party. Any such notice shall be deemed to have been given
(i) upon actual delivery, if delivered by hand, (ii) on the third (3rd) business
day following deposit of such notice, properly addressed with postage prepaid,
with the United States Postal Service if mailed by registered or certified mail,
return receipt requested, or (iii) upon sending such notice, if sent via
facsimile, with confirmation of receipt, except that any notice of change of
address shall be effective only upon actual receipt thereof.
13. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN
AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
(b) VENUE; WAIVER OF JURY TRIAL. The parties hereby irrevocably
submit to the jurisdiction of the courts of the State of New York and the
Federal courts of the United States of America located in the State of New York
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents referred to in this Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a New York State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 12 of this Agreement or in such
other manner as may be permitted by law shall be valid and sufficient service
thereof.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
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CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 13(b).
(c) SEVERABILITY. In the event that any provision of the Agreement
is held to be illegal, invalid or unenforceable in a final, unappealable order
or judgment (each such provision, an "invalid provision"), then such provision
shall be severed from this Agreement and the remaining provisions of this
Agreement shall remain binding on the parties hereto. Without limiting the
generality of the foregoing sentence, in the event a change in any applicable
law, rule or regulation makes it unlawful for a party to comply with any of its
obligations hereunder, the parties shall negotiate in good faith a modification
to such obligation to the extent necessary to comply with such law, rule or
regulation that is as similar in terms to the original obligation as may be
possible while preserving the original intentions and economic positions of the
parties as set forth herein to the maximum extent feasible.
(d) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
(e) FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(f) HEADINGS. All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(g) THIRD PARTY BENEFICIARIES. NOTHING IN THIS AGREEMENT, EXPRESS
OR IMPLIED, IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF
ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
(h) ASSIGNMENT. Neither any Stockholder nor the Company may assign
any of his, her or its rights or obligations under this Agreement without the
prior written consent of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
(i) EFFECTIVENESS. The obligations of the Stockholder set forth in
this Agreement shall not be effective or binding upon the Stockholder until
after such time as the Share Exchange Agreement is executed and delivered by the
Company, CSI, the Utix Principal Stockholder, and the CSI Stockholders.
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(j) JOINT PARTICIPATION IN DRAFTING THIS AGREEMENT. The parties
acknowledge and confirm that each of their respective attorneys have
participated jointly in the drafting, review and revision of this Agreement and
that it has not been written solely by counsel for one party and that each party
has had the benefit of its independent legal counsel's advice with respect to
the terms and provisions hereof and its rights and obligations hereunder. Each
party hereto, therefore, stipulates and agrees that the rule of construction to
the effect that any ambiguities are to be or may be resolved against the
drafting party shall not be employed in the interpretation of this Agreement to
favor any party against another and that no party shall have the benefit of any
legal presumption or the detriment of any burden of proof by reason of any
ambiguity or uncertain meaning contained in this Agreement.
(k) EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby will be paid by the
party incurring such cost or expense.
(l) PUBLIC ANNOUNCEMENTS. Without the prior written consent of the
Company, none of the Stockholders shall not issue any press release or make any
public statements with respect to this Agreement or the Share Exchange
Agreement, except as may be required by applicable law or court process.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first written above.
UTIX GROUP, INC. (fka Chantal Skin Care
Corporation)
By:
------------------------------------
Name:
Title:
THE STOCKHOLDERS:
----------------------------------------
Name: Xxxxxxxx Xxxxx
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Name: Xxxx Xxxxxxxxx
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Name: Xxxxxx Xxxx
Xxxx Financial Group
By:
------------------------------------
Name:
Title:
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Name: Xxxxxx Xxxxxx
XXXXX FAMILY IRREVOCABLE STOCK TRUST
By:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
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Name: Xxxx Xxxxxxx
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Name: Xxx Xxxxx
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EXHIBIT A
--------------------------------- -----------------------------------
STOCKHOLDER SUBJECT SHARES
--------------------------------- -----------------------------------
Xxxxxxxx Xxxxx 5,710,882
--------------------------------- -----------------------------------
Xxxx Xxxxxxxxx 2,323,071
--------------------------------- -----------------------------------
Xxxxxx Xxxx 1,209,933
--------------------------------- -----------------------------------
Xxxx Financial Group 1,451,919
--------------------------------- -----------------------------------
Xxxxxx Xxxxxx 96,795
--------------------------------- -----------------------------------
Xxxxx Family 1,875,000
Irrevocable Stock Trust
--------------------------------- -----------------------------------
Xxxx Xxxxxxx 645,000
--------------------------------- -----------------------------------
Xxx Xxxxx 1,875,000
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EXHIBIT B
FORM OF IRREVOCABLE PROXY
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The undersigned, for consideration received, hereby constitutes and
appoints Xxxxxxx X. Xxxx or Xxxxxxx Xxxxxx or another representative of Utix
Group Inc. (fka Chantal Skin Care Corporation), a company incorporated under the
laws of the State of Delaware (the "COMPANY"), designated by it and each of them
as my true and lawful attorneys and proxies, with full power of substitution and
resubstitution, and hereby authorizes each, for and in its name, place and
stead, to the same extent and with the same effect as the undersigned might or
could do under applicable law, rules or regulations, (i) to vote all shares of
Common Stock of the Company owned by the undersigned (the "SUBJECT SHARES") as
of the date hereof at any meetings of stockholders of the Company after the date
hereof and at any adjournment or postponement thereof (each, a "COMPANY
MEETING") FOR approval and adoption of the stock option plan attached hereto as
EXHIBIT C (the "Plan") and AGAINST any action, approval or agreement that would
compete with or materially impede, interfere with, adversely affect or tend to
discourage the Plan or inhibit the timely adoption of the Plan, including,
without limitation, any alternative plan, and (ii) to withhold consents with
respect to such Subject Shares for any action, approval or agreement that would
compete with or materially impede, interfere with, adversely affect or tend to
discourage the Plan or inhibit the timely adoption of the Plan, including,
without limitation, any alternative plan. This proxy is coupled with an
interest, revokes all prior proxies granted by the undersigned and is
irrevocable until such time as the Voting Agreement, dated as of November __,
2003, by and among certain stockholders of the company, including the
undersigned, and the Company terminates in accordance with its terms, at which
time this proxy shall expire.
Dated: November __, 2003
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(Signature of Stockholder)
EXHIBIT C
THE PLAN
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