VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of August 9, 2000, by and
between Lawrence D. Bain ("Bain") and International Bioscience Corporation, a
Florida corporation ("IBC").
WITNESSETH THAT:
WHEREAS, Empyrean Bioscience, Inc., a Wyoming corporation ("Empyrean"),
issued 5,000,000 shares (the "Shares") of its duly authorized, fully paid and
non-assessable common stock, no par value, to IBC pursuant to the terms and
provisions of that certain Joint Venture Agreement (the "Joint Venture
Agreement") dated as of August 9, 2000, between IBC and Empyrean and, in
addition, has entered into a Nonqualified Stock Option Agreement (the "Option
Agreement") dated as of August 9, 2000 with IBC, granting IBC an option to
purchase an additional 2,226,000 shares of Empyrean's common stock (if and when
exercised, the "Option Shares"); and
WHEREAS, IBC has agreed that it will be in its best interests and in the
best interest of Empyrean and Bain if Bain, as a holder of approximately
2,725,000 shares of common stock of Empyrean (together with any additional
shares of capital stock of Empyrean Bain directly or indirectly acquires in the
future, the "Bain Shares"), and IBC enter into this Agreement, subject to the
terms and conditions set out herein; and
WHEREAS, Empyrean would not have issued any of its common stock or entered
into the Joint Venture Agreement or the Option Agreement with IBC without this
Agreement being entered into.
NOW, THEREFORE, to induce Empyrean and IBC to enter into, and in
consideration of their entering into, the Joint Venture Agreement and the Option
Agreement, and in consideration of the promises and the representations,
warranties and agreements contained herein, the parties hereto agree as follows:
1. Representations and Warranties of IBC. IBC hereby represents and
warrants to Bain as of the date hereof as follows:
(a) AUTHORITY; NO CONFLICTS. IBC has the necessary legal capacity,
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by and on behalf
of IBC, and, assuming due authorization, execution and delivery by Bain,
constitutes a legal, valid and binding obligation of IBC, enforceable in
accordance with its terms. None of the execution and delivery of this Agreement
by and on behalf of IBC, the consummation of the transactions contemplated
hereby and compliance with the terms hereof by IBC will conflict with, or result
in any violation of, or default (with or without notice or lapse of
time or both) under any provision of, any trust agreement, loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to IBC or to
IBC's property or assets. (b) The Shares. IBC is the beneficial owner of the
Shares and has the sole right and power to vote and dispose of the Shares, and
none of the Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting or transfer (other than
the provisions of the Securities Act) of any of the Shares, except as
contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF BAIN. Bain represents and warrants
that this Agreement has been duly authorized, executed and delivered by him and,
assuming due authorization, execution and delivery by IBC, constitutes a legal,
valid and binding obligation of Bain enforceable in accordance with its terms.
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3. Covenants of IBC. Until the termination of this Agreement in accordance
with Section 4 hereof, IBC agrees as follows:
(a) VOTING OF SHARES AND OPTION SHARES. At any meeting of stockholders
of Empyrean or at any adjournment thereof or in any other circumstances upon
which IBC's vote, consent or other approval as a stockholder of Empyrean is
sought, IBC shall vote the Shares and Option Shares in accordance with and in
the same manner as Bain votes the Bain Shares.
(b) PROXIES. As security for the agreements of IBC provided for
herein, IBC hereby grants, contemporaneously with the execution of this
Agreement, to Bain a proxy, in the form attached hereto as Exhibit A, to vote
the Shares and Option Shares as indicated in Section 3(a) above. IBC agrees that
this proxy shall be irrevocable during the term of this Agreement and coupled
with an interest and IBC and Bain will take such further action or execute such
other instruments as may be necessary to effectuate the intent of this PROXY.
(c) NO TRANSFER RESTRICTIONS. IBC shall be free at any time to sell
any or all of the Shares or Option Shares to third parties, whether by public
resale pursuant to an effective registration statement or pursuant to any valid
exemption from the registration requirements under applicable federal and state
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securities laws. This Agreement shall immediately terminate with respect to any
such shares sold, devised, assigned or otherwise disposed of to such third
parties upon receipt by Bain of a legal opinion to the effect that such shares
were sold pursuant to a public resale on Form S-4 or on any other registration
statement as Empyrean shall be qualified to file with respect to such shares or
that such transfer is not required to be registered under the Securities Act of
1933, as amended; provided, however, that this Agremeent shall not terminate
with respect to those shares sold in a private sale of Shares or Option Shares
that, within a 90-day period, exceed the greater of (i) twenty percent (20%) of
the total shares of common stock then owned by IBC or (ii) a value of one
million dollars (US$1,000,000). In the event IBC acquires, directly or
indirectly, any additional shares of capital stock of Empyrean during the term
of this Agreement through the exercise of any options under the Option
Agreement, such shares shall immediately become subject to this agreement.
(d) NO ADDITIONAL AGREEMENTS. IBC agrees not to enter into any voting
arrangement or understanding with respect to the Shares or Option Shares,
whether by proxy, voting agreement or otherwise, or take any action that would
reasonably be expected to make any of its representations or warranties
contained herein untrue or incorrect or could have the effect of preventing or
disabling IBC from performing any of its obligations hereunder.
4. Term and Termination.
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(a) In the event that Bain shall cease to act as a director on the
board of directors of Empyrean for any reason, including by reason of death,
incapacity or resignation, Bain shall, in his sole discretion, either (i) assign
all of his rights and obligations relating to this Voting Agreement and the
irrevocable proxy granted to Bain by IBC pursuant to Section 3(b) of this
Agreement and all voting rights in and a proxy with respect to the Bain Shares,
which shares shall be equal to or greater than the number of shares of capital
stock of Empyrean Bain holds as of the date hereof, to the then-current chairman
of the board of directors of Empyrean as Bain's successor-in-interest to this
Agreement or (ii) elect not to assign his rights and obligations under this
Agreement to such person, thereby resulting in the termination of this Agreement
and all of the rights and obligations of the parties hereunder. In the event the
number of shares Bain holds at the time he ceases to be a director shall be less
than the number of shares he holds as of the date hereof, this Voting Agreement
shall terminate at such time with respect to the Shares and the Option Shares
along with all the rights and obligations of the parties hereunder. The right of
Bain to assign the proxy to vote the Shares and Option Shares, as described in
Section 4(a)(i) above, shall be a personal right and may not be assigned by Bain
to any other person.
(b) Notwithstanding Section 4(a) above, this Agreement shall
terminate, and no party shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no further effect immediately
following such time as Empyrean becomes the full legal and beneficial owner of
100% of its issued and outstanding capital stock.
5. General Provisions.
(a) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. Wherever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
(b) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
each party need not sign the same counterpart.
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(c) GOVERNING LAW. (i) This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Wyoming regardless of the
laws that might otherwise govern under applicable principles of conflicts of law
thereof.
(ii) Except for actions brought for wrongful termination or to
seek termination of this Agreement, if any disagreement arises regarding the
interpretation of any points of the Agreement or any other point not covered
herein or any claims for damages or specific performance, the disagreement, upon
request of either party hereto delivered in writing to the other party, shall be
resolved by arbitration before a single arbitrator in accordance with the
commercial rules and procedures set forth by the American Arbitration
Association. The prevailing party in such action or arbitration shall be
entitled to receive from the other party a reasonable sum for it's attorneys'
fees and all other reasonable costs and expenses incurred in such action or
arbitration.
(iii) The venue of any arbitration between the parties arising
from or related to this Agreement shall be in either Miami-Dade County or Palm
Beach County, Florida. Any litigation arising from or related to this Agreement
shall be brought exclusively in an appropriate state or federal court in
Miami-Dade County or Palm Beach County, Florida, and the parties waive any right
to challenge such venue.
(d) COMPLETE AGREEMENT. This Agreement is the sole and complete
statement of the parties of their rights and obligations with respect to the
subject matter hereof. This Agreement is an integrated agreement and replaces
and supersedes any and all previous obligations and agreements between the
parties. The parties hereto recognize and agree that no representations or
warranties have been made except as set forth in this Agreement. Except as may
otherwise be expressly provided herein, by signing this Agreement the parties
expressly release each other from any and all existing obligations that pre-date
this Agreement as if such obligations have been fully performed and satisfied.
Any amendments to this Agreement shall be in writing and executed by both
parties hereto.
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IN WITNESS WHEREOF, the parties hereto do hereby sign, enter into and
acknowledge this Agreement on the date first written above.
INTERNATIONAL BIOSCIENCE CORPORATION
By:_____________________________________
Title:__________________________________
----------------------------------------
Lawrence D. Bain
Exhibit A
Power of Attorney and Irrevocable Proxy
Reference is hereby made to that certain Voting Agreement (the "Voting
Agreement"), dated as of the date hereof, between the undersigned, IBC (the
"Granting Stockholder"), and Lawrence D. Bain (the "Proxyholder"), with respect
to certain shares of common stock of Empyrean Bioscience, Inc. owned by IBC, of
which this Power of Attorney and Irrevocable Proxy (this "Irrevocable Proxy")
forms a part. Capitalized terms used but not defined in this Irrevocable Proxy
have the respective meanings ascribed to such terms in the Voting Agreement.
This Irrevocable Proxy is being delivered by the Granting Stockholder pursuant
to Section 3(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints the
Proxyholder as the Granting Stockholder's attorney-in-fact and proxy pursuant to
the provisions of Section 17-16-722 of the Wyoming Business Corporation Act,
with full power of substitution, in the Granting Stockholder's name, place and
stead, to vote and otherwise act (by written consent or otherwise) with respect
to all Shares and Option Shares, now or hereafter owned, of record or
beneficially, by the Granting Stockholder, which the Granting Stockholder is
entitled to vote at any meeting of the stockholders of Empyrean (whether annual
or special and whether or not an adjourned or postponed meeting) or consent in
lieu of any such meeting or otherwise. A copy of the executed Voting Agreement
is attached hereto and is made a part of and incorporated into this Proxy.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST, SUCH INTEREST BEING THE VOTING AGREEMENT. The Granting
Stockholder hereby revokes all other proxies and powers of attorney with respect
to the Shares and Option Shares that the Granting Stockholder may have
heretofore granted, and no subsequent proxy or power of attorney shall be given
or written consent executed (and if given or executed, shall not be effective)
by the Granting Stockholder with respect thereto. In the event the Granting
Stockholder acquires, directly or indirectly, any additional shares of capital
stock of Empyrean during the term of the Voting Agreement as described in
Section 3(c) thereof, such shares shall immediately become subject to this
irrevocable proxy.
This Irrevocable Proxy shall be valid and irrevocable until terminated in
accordance with the conditions set forth below:
(a) In the event that the Proxyholder shall cease to act as a director on
the board of directors of Empyrean for any reason, including by reason of death,
incapacity or resignation, the Proxyholder shall, in his sole discretion, either
(i) assign all of his rights and obligations relating to the Voting Agreement
and the irrevocable proxy granted to the Proxyholder by the Granting Stockholder
pursuant to Section 3(b) of the Voting Agreement and all voting rights in and a
proxy with respect to the Bain Shares, which shares shall be equal to or greater
than the number of shares of capital stock of Empyrean the Proxyholder holds as
of the date hereof, to the then-current chairman of the board of directors of
Empyrean as the Proxyholder's successor-in-interest to the Voting Agreement or
(ii) elect not to assign his rights and obligations under the Voting Agreement
to such person, thereby resulting in the termination of the Voting Agreement and
all of the rights and obligations of the parties hereunder. In the event the
number of shares the Proxyholder holds at the time he ceases to be a director
shall be less than the number of shares he holds as of the date hereof, the
Voting Agreement shall terminate at such time with respect to the Shares and the
Option Shares along with all the rights and obligations of the parties
hereunder. The right of the Proxyholder to assign the proxy to vote the Shares
and Option Shares, as described in Section 4(a)(i) above, shall be a personal
right and may not be assigned by Proxyholder to any other person.
(b) Notwithstanding paragraph (a) above, the Voting Agreement shall
terminate, and no party shall have any rights or obligations hereunder and the
Voting Agreement shall become null and void and have no further effect
immediately following such time as Empyrean becomes the full legal and
beneficial owner of 100% of its issued and outstanding capital stock.
(c) The Voting Agreement shall immediately terminate with respect to any
such Shares or Option Shares sold, devised, assigned or otherwise disposed of by
the Granting Stockholder to a third party upon receipt by the Proxyholder of a
legal opinion to the effect that such shares were sold pursuant to a public
resale on Form S-4 or on any other registration statement as Empyrean shall be
qualified to file with respect to such shares or that such transfer is not
required to be registered under the Securities Act of 1933, as amended;
provided, however, that the Voting Agremeent shall not terminate with respect to
those Shares or Option Shares sold in a private sale of such Shares or Option
Shares that, within a 90-day period, exceed the greater of (i) twenty percent
(20%) of the total shares of common stock then owned by the Granting Stockholder
or (ii) a value of one million dollars (US$1,000,000).
Dated as of August 9, 2000
INTERNATIONAL BIOSCIENCE CORPORATION
By:______________________________
Name:__________________________________
Title:_________________________________