Exhibit 99.5
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") is entered into effective as of
June 24, 2004, (the "Effective Date") by and among USED KAR PARTS, INC., a
Florida corporation (the "Company"), the parties listed in Exhibit A hereto
(collectively, the "Xenomics Shareholders"), the parties listed in Exhibit B
hereto (collectively, the "Original Shareholders"), the parties listed in
Exhibit C hereto (collectively, the "Investors") with reference to the facts and
circumstances set forth in the Recitals below:
RECITALS
A. The Original Shareholders are the holders of all of the outstanding
and unregistered shares of the Company's common stock
B. Company and the Xenomics Shareholders are parties to that certain
Securities Exchange Agreement ("Exchange Agreement") of even date herewith (to
which this Agreement is annexed as Exhibit F) pursuant to which Company will
acquire all of the issued and outstanding shares of Xenomics' capital stock from
the Xenomics Shareholders in exchange for issuance of shares of Company's common
stock to the Xenomics Shareholders. Following the closing of the transactions
contemplated under the Exchange Agreement, Xenomics will be UKP's wholly owned
subsidiary.
C. As of the Effective Date, the Investors have purchased shares of the
Company's common stock.
D. Section 6.12 of the Exchange Agreement provides that, as a condition
to the closing of the transactions contemplated under the Exchange Agreement,
the Company, the Original Shareholders, the Investors, and the Xenomics
Shareholders shall have entered into a voting agreement providing that the
Xenomics Shareholders shall have the right to elect at least 1/3 and not less
than 2 of the authorized members of the Company's Board of Directors.
E. The Company, the Original Shareholders, and the Investors now desire
to enter into this Voting Agreement with the Xenomics Shareholders and the
Original Shareholders and the Investors wish to agree with the Xenomics
Shareholders as to the composition of the Company's Board of Directors.
AGREEMENT
NOW, THEREFORE, in consideration of the Exchange Agreement, the above
Recitals, the mutual promises and covenants hereinafter set forth, and other
good and valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
1. Agreement to Vote.
1.1 Voting of Shares.During the term of this Voting Agreement,
the Original Shareholders and the Investors agree to vote all of the shares of
the Company's common stock now or hereafter owned by them, whether beneficially
or otherwise (collectively, hereinafter referred to as the "Voting Shares"), at
any regular or special meeting of shareholders of the Company, or, in lieu of
any such meeting, to give their written consent, or to vote their respective
Voting Shares in any other manner permitted by applicable law in the election or
removal of directors of the Company as provided in this Voting Agreement.
1.2 Designation of Xenomics Directors. The Original
Shareholders and the Investors hereby agree that, as long the Xenomics
Shareholders own the aggregate of 752,667 shares of the Company's capital stock,
a majority-in-interest of the Xenomics Shareholders shall have the right (a) (i)
if the number of directors then constituting the entire Company's Board of
Directors (the "Board") is more than 7, to designate one-third (1/3), of the
members of the Board (each, a "Xenomics Director," and, collectively, the
"Xenomics Directors"), it being understood that, in the event the number of
directors constituting the Board is not dividable by the number three (3), that
Xenomics shall have the right to designate the number of Xenomics Directors that
equals one-third (1/3) of the next lower number that is dividable by three (3),
(ii) if the number of directors constituting the entire board is between 5 and
7, to designate 2 Xenomics Directors, and (iii) if the number of directors
constituting the entire board is less than 5, one (1) Xenomics Director and 1
non-voting Board observer, who shall have equal rights to receive notices of and
attend meetings of the Board ("Xenomics Observer"); (b) to remove any Xenomics
Director or Xenomics Observer with or without cause and to designate one new
Xenomics Director in any removed Xenomics Director's place, and one new Xenomics
Observer in any removed Xenomics Observer's place; and (c) to appoint a
replacement in the event a Xenomics Director or Observer resigns. The members of
the Board, as of the effective date of this Agreement, are: L. Xxxxx Xxxxx,
Xxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxx, it being
recognized that Xx. Xxxxx and Xx. Xxxxxxx are the initial Xenomics Directors.
Xxxxxxx Xxxxxxx has been appointed director and co-chairman of the Board,
effective as of the date of his written acceptance of this appointment.
1.3 Additional Board Observer. For so long as Xxxx Xxxxxxx (a)
is not a member of the Board, and (b) holds shares of the Company's voting
stock, he shall have the right to be a non-voting observer, who shall have the
same right as a Board member to receive notices of and attend Board meetings.
1.4 Vote for Xenomics Director. The Original Shareholders and
the Investors hereby agree to vote that number of Voting Shares as to which they
have beneficial ownership sufficient to appoint, elect, remove, or replace, as
the case may be, any Xenomics Director to or from the Board as may be directed
by a majority-in-interest of the Xenomics Shareholders in accordance with
Section 2.2 above.
2. Grant of Proxy. Should the provisions of this Voting Agreement be
construed to constitute the granting of proxies, such proxies shall be deemed
coupled with an interest and, to the extend permitted by law, are irrevocable
for the term of this Voting Agreement.
3. Financial Management. (a)The financial affairs of the Company and
Xenomics shall be supervised by an audit committee consisting solely of
non-management members of the Board which shall review and approve an operating
budget and material variances therefrom.
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(b) The treasurer of the Company shall have the authority to
appoint a non-officer signatory as a signatory for the Company and Xenomics bank
accounts, provided payments in excess of $25,000 or a series of payments totally
$75,000 or more during a six month period if less than $25,000 individually,
shall require the signatures of both, the treasurer of the Company and such
non-officer signatory.
(c) The selection and approval of a treasurer of the Company,
and its chief financial and chief accounting officers shall be made by the Board
by an affirmative vote of not less than the majority of the entire Board.
4. Specific Enforcement. (a) It is agreed and understood that monetary
damages would not adequately compensate the Xenomics Shareholders for the breach
of this Voting Agreement by the Original Shareholders or the Investors, that the
Voting Agreement shall be specifically enforceable, and that any breach or
threatened breach of this Voting Agreement by the Original Shareholders or the
Investors shall be the proper subject of a temporary or permanent injunction or
straining order. Further, each of the Original Shareholders and the Investors
waives any claim or defense that there is an adequate remedy at law for such
breach or threatened breach.
(b) It is agreed and understood that monetary damages would
not adequately compensate the Original Shareholders and Investors for the breach
of this Voting Agreement by the Company or Xenomics Shareholders, that the
Voting Agreement shall be specifically enforceable, and that any breach or
threatened breach of this Voting Agreement by the Company or Xenomics
Shareholders shall be the proper subject of a temporary or permanent injunction
or straining order. Further, each of the Xenomics Shareholders and the Company
waives any claim or defense that there is an adequate remedy at law for such
breach or threatened breach.
5. Notices. Any notices required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery or one business day after deposit with a nationally recognized
overnight delivery service. Notices to the Company shall be addressed to the
Company at
Used Kar Parts, Inc.
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: President
with a required copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
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Notices to an Original Shareholder, an Investor, or a Xenomics Shareholder shall
be delivered to the address listed for such stockholder on the respective
Exhibit attached hereto or at such other address as any party may designate by
ten (10) days advance written notice to the other parties.
6. Termination. This Voting Agreement shall automatically terminate
upon the earlier of (a) the adjudication by a court of competent jurisdiction
that the Company is bankrupt or insolvent, (b) the filing of a certificate of
dissolution by the Company, (c) upon the written consent of the Company and a
majority of the Xenomics Shareholders, (d) upon the listing of shares of the
Company's common stock on Nasdaq or a national securities exchange, or (e) on
June 15, 2007.
7. Amendments and Waivers. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in particular
instance and either retroactively or prospectively) only with the written
consent of the Company, a majority in interest of the Xenomics Shareholders, a
majority in interest of the Original Shareholders, and a majority in interest of
the Investors. Any amendment or waiver so effected shall be binding upon all the
parties hereto.
8. Severability. Any invalidity, illegality or unenforceability of any
provision of this Agreement in any jurisdiction shall not invalidate or render
illegal or unenforceable the remaining provisions hereof in such jurisdiction,
provided that the remaining provisions continue to reflect the intent of the
parties hereto, and shall not invalidate or render illegal or unenforceable such
provision in any other jurisdiction.
9. Governing Law This Agreement shall be governed by and construed
under the laws of Florida, unless the Company shall redomesticate in another
jurisdiction, in which case the substantive corporate laws of such jurisdiction
shall govern.
10. Counterparts. This Voting Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A signature on a copy of
this Agreement received by either Party by facsimile is binding upon the other
Party as an original. Both Parties agree that a photocopy of such facsimile may
also be treated by the Parties as a duplicate original.
11. Successors and Assigns. Except as otherwise expressly provided in
the voting Agreement, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors and assigns of the parties hereto. In addition
to other legends that are required, either by agreement or by federal or state
securities laws, each certificate representing any of the Voting Shares shall be
marked by the Company with legend reading as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY
OF WHICH MAY BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO
AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
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12. Addition of Common Shareholders. Unless otherwise approved by the
Board, prior to any sale of unregistered shares of the Company's common stock,
or issuance of any new shares of the Company's common stock to any person, the
Company shall require the recipient of such shares to enter into this Agreement
by executing a counterpart signature page and the Company shall xxxx the
certificate representing such shares with the legend set forth in Section 5
hereof.
13. Liability of Xenomics Shareholders. No Xenomics Shareholder shall,
by reason of his, her or its ability to designate and cause the election of any
member of the Board hereunder, or otherwise, be subject to any liability or
obligation whatsoever with respect to the management and affairs of the Company
or otherwise be or become responsible for any of the debts, liabilities or
obligations of the Company.
14. Director Indemnification. In the event that any director designated
under this Agreement shall be made or threatened to be made a party to any
action, suit or proceeding with respect to which he may be entitled to
indemnification by the Company pursuant to its corporate charter, by-laws or
otherwise, such director shall be entitled to be represented in such action,
suit or proceeding by counsel of such director's choice and the expenses of such
representation shall be reimbursed by the Company to the extent provided in or
authorized by said corporate charter, by-laws or other provision and permitted
by applicable law. The Company and the other parties hereto agree not to take
any action to amend any provision of the corporate charter or by-laws of the
Company to delete or weaken any provision relating to indemnification or
directors, as presently in effect, without the prior written consent of a
majority of the Xenomics Shareholders, for so long as the Xenomics Shareholders
retain the right to designate directors as provided herein.
15. Exculpation; Rights of Xenomics Shareholders. The Xenomics
Shareholders shall have the absolute right to exercise or refrain from
exercising any rights that Xenomics Shareholders may have by reason of this
Agreement and no Xenomics Shareholder shall incur any liability to any other
holder of shares of the Company as a result of such Xenomics Shareholder's
exercising or refraining from exercising any such right.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as
of the date first above written.
COMPANY: Used Kar Parts, Inc.
a Florida corporation
/s/ Xxxxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: President
ORIGINAL SHAREHOLDERS: Xxxxxxx Partners Ltd.,
a ___________________
/s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: President
Etruscan Xxxxxxx Investments, Ltd.,
a ___________________
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
Hawkeye Incubator Ltd.,
a ___________________
Name: Natalia Patsalidou
Title: Authorized Signatory
Lazio Bioventure Ltd.,
a ___________________
Name: Xxxxxx Xxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
SIGNATURE PAGE TO VOTING AGREEMENT CONTINUES
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XENOMICS SHAREHOLDERS: /s/ L. Xxxxx Xxxxx
----------------------------
L. Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
----------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
SIGNATURE PAGE TO VOTING AGREEMENT CONTINUES
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INVESTORS: Individual Investor:
/s/ Signatories listed below
Fimi SPA
Blenton Management
Roffredo Xxxxxxx
Xxxxxx Xxxxxxx
R. Xxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxx
Fossil Ventures LLC
Investor that is an Entity:
___________________________________
(Name of Entity)
By: ________________________________
Name: __________________________
Title: _________________________
SIGNATURE PAGE TO VOTING AGREEMENT
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EXHIBIT A
SCHEDULE OF XENOMICS SHAREHOLDERS
Xenomics Shareholder's Shares of Company's Common Stock Held by Xenomics
Name and Address Shareholder as of Effective Date
--------------------------------------------------------------------------------
L. Xxxxx Xxxxx 938,360
Xxxxxx Xxxxxxx 885,809
Xxxxxx X. Xxxxxxxxx 348,803
Xxxxxxx X. Xxxxxxxxxxxx 66,689
Xxxxxxx X. Xxxxx 18,340
---------
Total Xenomics Shareholders 2,258,001
=========
EXHIBIT B
SCHEDULE OF ORIGINAL SHAREHOLDERS
Original Shareholder's Shares of Company's Common Stock Held by Original
Name and Address Shareholder as of Effective Date
---------------- --------------------------------
Xxxxxxx Partners Ltd. 918,858
Etruscan Xxxxxxx Investments Ltd. 749,916
Hawkeye Incubator Ltd. 744,588
Lazio Bioventure Ltd 724,164
---------
Total Original Shareholders 3,137,526
=========
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EXHIBIT C
SCHEDULE OF INVESTORS
Investor's Shares of Company's Common Stock Held by Original
Name and Address Shareholder as of Effective Date
---------------- --------------------------------
Total Common Shares
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