EXHIBIT 10.4
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of October 31, 2006,
is made by and among Natural Health Trends Corp., a Delaware corporation (the
"Company"), Terry L. LaCore ("LaCore") and Mark D. Woodburn ("Woodburn").
Capitalized terms used but not defined herein have the meanings ascribed to them
in the October 2006 Agreement (as defined below).
WHEREAS, concurrently herewith, the Company has entered into an
agreement of even date herewith (as the same may be amended from time to time,
the "October 2006 Agreement") providing for, the execution and delivery of this
Agreement; and
WHEREAS, each of LaCore and Woodburn, as of the date of this Agreement,
is the record owner and the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of the number of
outstanding shares of Company capital stock set forth opposite his name as
"Shares" on Schedule A attached hereto, and each of LaCore and Woodburn wishes
to enter into this Agreement with respect to all of such Shares and any
additional shares of capital stock of the Company that LaCore and Woodburn
hereafter acquires the right to vote, whether through contract, purchase,
exercise of an option or otherwise after the date of this Agreement ("Additional
Shares"); and
WHEREAS, in order to induce the Company to enter into the October 2006
Agreement, LaCore and Woodburn have agreed to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
VOTING AGREEMENT; IRREVOCABLE GRANT OF PROXY
Section 1.1. Voting Agreement. During the term of this
Agreement, each of LaCore and Woodburn hereby agrees to vote, and to cause each
L&W Affiliate to vote, all the Shares and any Additional Shares on all matters
presented to, or considered by, Company stockholders, as recommended by the
Company's Board of Directors, or such third party that is reasonably acceptable
to each the parties to this Agreement.
Section 1.2. Irrevocable Proxy. Each of LaCore and Woodburn
hereby revokes any and all previous proxies granted with respect to his Shares
and/or Additional Shares. Each of LaCore and Woodburn hereby grants a proxy
appointing the Company's Board of Directors (or such third party that is
reasonably acceptable to each of the parties to this Agreement) as his or its
attorney-in-fact and proxy, with full power of substitution, for and in his or
its name, to vote his or its Shares and/or Additional Shares. Simultaneously
with the execution and delivery of this Agreement, each of LaCore and Woodburn
is delivering, and is causing each L&W Affiliate to deliver, to the Company a
proxy in the Form of Annex A hereto. The proxy granted by each of LaCore and
Woodburn pursuant to this Section 1.2 is irrevocable to the extent permitted by
Annex A
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Delaware law, is coupled with an interest and is granted in consideration of the
Company's entering into this Agreement, the October 2006 Agreement and the other
Transaction Documents. The proxy granted by each of LaCore and Woodburn shall
terminate on the third (3rd) anniversary of the date hereof (the "Termination
Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF LACORE AND WOODBURN
Each of LaCore and Woodburn severally represents and warrants to the
Company that:
Section 2.1. Valid Title. He is the lawful record and
beneficial owner of his Shares, free and clear of any lien, charge, encumbrance
or claim of whatever nature (other than the pledge of such Shares pursuant to
that certain Non-Recourse Secured Promissory Note dated as of the date hereof
issued to the Company in the aggregate principal amount of $2,500,000). None of
the Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares.
Section 2.2. Non-Contravention. The execution, delivery and
performance by each of LaCore and Woodburn of this Agreement and the
consummation of the transactions contemplated hereby (i) have been duly
authorized by all necessary action, and no other actions on his part are
necessary to authorize the Agreement or to consummate the transactions
contemplated hereby, and (ii) does not and will not (A) violate, contravene or
constitute a default under, (B) give rise to a right of termination,
cancellation or acceleration of any right or obligation of each of LaCore and
Woodburn under, any statute, rule or regulation applicable to each of LaCore and
Woodburn or injunction, order or decree binding on him or (C) result in the
imposition of any lien on any Shares or Additional Shares.
Section 2.3. Binding Effect. This Agreement has been duly
executed and delivered by each of LaCore and Woodburn and is the valid and
binding agreement of each of LaCore and Woodburn, enforceable against each of
them in accordance with its terms, except: (i) as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought. If this Agreement is being executed in a representative or
fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform this Agreement.
Section 2.4. Shares. As of the date hereof, (i) each of
LaCore and Woodburn is the legal and beneficial owner of the number of Shares
set forth opposite his or its name on Schedule A hereto, which Shares represent
the only shares of capital stock of the Company legally or beneficially owned by
each of them, and (ii) except as set forth on Schedule A, neither LaCore nor
Woodburn owns options or warrants to purchase or other rights to subscribe for
or otherwise acquire any securities of the Company.
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Annex A
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Section 2.5. Accuracy of Representations. The representations
and warranties contained in this Agreement are accurate in all respects as of
the date of this Agreement, will be accurate in all respects at all times
through the Termination Date.
ARTICLE III
COVENANTS OF LACORE AND WOODBURN
Each of LaCore and Woodburn hereby covenants and agrees that:
Section 3.1. No Proxies for, or Encumbrances on Shares or
Additional Shares. Except as provided in this Agreement, each of LaCore and
Woodburn shall not, during the term of this Agreement, without the prior written
consent of the Company, directly or indirectly, (i) grant any proxies or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any Shares or Additional Shares to any person other than the Company,
or (ii) take any other action that would in any way restrict, limit or interfere
with the performance of his obligations hereunder or the transactions
contemplated hereby.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Further Assurances. Each of LaCore and Woodburn
will, at the request of the Company, execute and deliver or cause to be executed
and delivered all further documents and instruments and use their respective
reasonable best efforts to secure such consents and take all such further action
reasonably necessary for the purpose of carrying out and furthering the intent
of this Agreement.
Section 4.2. Specific Performance. The parties hereto agree
and each of LaCore and Woodburn expressly acknowledges that the Company may be
irreparably damaged if for any reason either LaCore and Woodburn fails to
perform any of its obligations under this Agreement, and that the Company would
not have any adequate remedy at law for money damages in such event.
Accordingly, each of LaCore and Woodburn agrees that in the case of the failure
of his to perform, the Company shall be entitled to specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement, and further agrees that any such specific performance and injunctive
and/or other equitable relief, in addition to remedies at law or damages, is the
appropriate remedy for any such failure to perform, and further agrees that each
of LaCore and Woodburn will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with the Company's seeking or
obtaining such equitable relief. This provision is without prejudice to any
other rights that the Company may have against each of LaCore and Woodburn for
any failure to perform its obligations under this Agreement.
Section 4.3. Term of Agreement. The term of this Agreement
shall commence on the date hereof, and such term, this Agreement and the
proxy(ies) granted in and pursuant to Section 1.2 hereof shall terminate at the
close of business on the Termination Date. Upon such termination, no party shall
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Annex A
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have any further obligations or liabilities hereunder; provided, that such
termination shall not relieve any party from liability for any breach of this
Agreement prior to such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Voting
Agreement to be duly executed as of the day and year first above written.
NATURAL HEALTH TRENDS CORP.
By: /s/ STEPHANIE S. HAYANO
-------------------------------------
Name: Stephanie S. Hayano
Title: President and Chief Executive
Officer
Address: 2050 Diplomat Drive
Dallas, TX 75234
/s/ TERRY L. LACORE
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Terry L. LaCore
c/o Curran Tomko Tarski LLP
1700 Pacific Avenue, Suite 4545
Dallas, Texas 75201
Attn: Edwin J. Tomko
/s/ MARK D. WOODBURN
-----------------------------------------
Mark D. Woodburn
809 Dominion Drive
Southlake, Texas 76092
With copy to:
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
Attn: Chris Kirkpatrick
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Annex A
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Schedule A
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Number
of Shares
of
Name Common Stock
---------------------------------------------- --------------------
Terry L. LaCore [540,533] + 244,998
Mark D. Woodburn 540,533
Annex A
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Irrevocable Proxy
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KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, a registered
holder of shares of common stock, par value $.001 per share (the "Common
Stock"), of NATURAL HEALTH TRENDS CORP., a Delaware corporation (the "Company"),
hereby makes, constitutes and appoints the Board of Directors of the Company as
the true and lawful proxy, agent and attorney-in-fact of the undersigned, in the
name, place and stead of the undersigned, to attend any and all meetings of
stockholders of the Company, whether annual or special, and any adjournment or
adjournments thereof, and to vote all shares of Common Stock registered in the
name of the undersigned on any matters, proposals and questions that may be
lawfully presented and considered at any such meeting and at any adjournment or
adjournments thereof, and to execute and deliver any written consent of
stockholders in lieu of any such meeting in respect of any such matters,
proposals and questions, as fully and with the same number of votes in respect
of the above described shares of Common Stock, and with the same effect, as the
undersigned could do if personally present at any such meeting, or at any
adjournment or adjournments thereof, or if executing and delivering any such
written consent.
The undersigned hereby ratifies all that said proxy, agent and
attorney-in-fact, or its substitute or substitutes, may or shall lawfully do in
voting at any such meeting, or at such written consent, in respect of all
matters, proposals and questions that may properly come before the stockholders
of the Company for considerations and action.
This Proxy is irrevocable, is coupled with an interest in the above
described shares of Common Stock and shall survive the incapacity, dissolution
or bankruptcy of the undersigned; provided however, that his Proxy shall
automatically terminate and be revoked as of the close of business on the third
anniversary of the date hereof.
Any proxy or proxies heretofore given by the undersigned with respect
to the above described shares of Common Stock are hereby revoked.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as of this
31st day of October, 2006.
By /s/ TERRY L. LACORE
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Name: Terry L. LaCore
By /s/ MARK D. WOODBURN
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Name: Mark D. Woodburn