EXHIBIT 9.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of April 1, 1998, is
among Elgin E^2, Inc., a Delaware corporation (the "Corporation"), Xxxxx Xxxxx
Holdings, Inc., a New York corporation (the "Xxxxx"), Xxxxxx X. Xxxxxxxx, Xx.
("Xxxxxxxx"), Xxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxx Xxxxxx ("Xxxxxx"), (Mason,
Ardinger, Xxxxxxx and Xxxxxx are sometimes collectively referred to as
"Shareholders" and individually referred to as "Shareholder"), and the spouses
of the individual Shareholders.
RECITALS:
The authorized capital stock of the Corporation consists of 60,000,000
shares of Common Stock, $.000833 par value per share ("Common Stock"), of which
18,999,737 shares of Common Stock are issued and outstanding or issuable
pursuant to outstanding securities on the date hereof. (The shares of Common
Stock issued and outstanding or issuable pursuant to securities issued and
outstanding on the date hereof are all described on Exhibit A attached hereto
and are collectively referred to as the "Stock"). The Shareholders believe it is
in their best interests to provide for certain agreements with respect to the
future voting of the Stock and desire to set forth their agreements with respect
to voting the Stock.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
ARTICLE I - VOTING; BOARD APPROVAL
1.1 Nomination and Election of Directors. On and after the date hereof,
at any meeting of the shareholders or by written consent in lieu of a meeting,
Xxxxxxxx shall have the right to nominate one (1) member of the Corporation's
Board of Directors (the "Board"), for each seven (7) members then serving on the
Board, rounded to the nearest whole number, so that Xxxxxxxx will continue to
control at least one-seventh (1/7) of the seats on the Board. The Shareholders
shall vote all of their respective shares of the Stock which they currently own
or may hereafter acquire (collectively, the "Shares") in favor of the election
of the person or persons so nominated by Xxxxxxxx.
1.2 Removal of Directors. No Shareholder shall vote his or its Shares in
favor of the removal of a director elected hereunder; provided, however, that
upon the request of Xxxxxxxx to remove a director nominated by Xxxxxxxx, the
Shareholders shall vote all of their Shares in favor or of the removal of such
director.
1.3 Vacancies in the Board. If any vacancy occurs in the Board because of
the death, disability, resignation, retirement, or removal of a director
nominated by Xxxxxxxx, Xxxxxxxx shall nominate a successor, and all Shareholders
shall vote their Shares in favor of the election of such successor to the Board.
Any such vacancy that occurs shall be filled as promptly as possible upon the
request of Xxxxxxxx.
1.4 Proxies. Neither the Corporation nor any Shareholder shall give any
proxy or power of attorney to any person or entity that permits the holder
thereof to vote in his or its discretion on any matter that may be submitted to
the Corporation's shareholders for their consideration and approval, unless such
proxy or power of attorney is made expressly subject to and is exercised in
conformity with the provisions of this Agreement.
1.5 General Voting. Each Shareholder hereby agrees to vote his or its
Shares in such a manner as to carry out and enforce this Agreement.
ARTICLE II - DISPOSITION OF SHARES
2.1 Restrictions on Disposition. So long as this Agreement is in effect,
no Shareholder shall sell, assign, transfer, give, encumber, pledge, or in any
other way dispose of his or its Shares, except as otherwise provided in or
permitted by that certain letter agreement dated March 5, 1998, among Xxxxxxxx,
the Corporation, and Xxxxx.
ARTICLE III - MISCELLANEOUS
3.1 Endorsement on Certificates. Upon execution of this Agreement, the
stock certificates representing the Shares shall contain substantially the
following legend, in addition to any other legends deemed appropriate or
necessary by the Corporation:
This certificate is transferable only upon compliance with and subject to,
and the securities evidenced by this certificate must be voted in
compliance with and subject to, the provisions of the Voting Agreement,
dated as of March 27, 1998, among the Corporation, certain shareholders of
the Corporation and their respective spouses, a copy of which is on file
in the office of the Secretary of the Corporation at its principal place
of business. The Corporation will furnish a copy of such Voting Agreement
to the record holder of this certificate, without charge, upon written
request to the Corporation at its principal place of business.
3.2 Specific Performance. The parties hereto recognize that it is to the
benefit of the Corporation and the Shareholders that this Agreement be carried
out; and for that and other reasons, the parties hereto would be irreparably
damaged if this Agreement is not specifically enforced in the event of a breach
hereof. If this Agreement is breached, then the parties hereto hereby agree that
remedies at law might be inadequate and that, therefore, such rights and
obligations, and this Agreement, shall be enforceable by specific performance.
The remedy of specific performance shall not be an exclusive remedy, but shall
be cumulative of all other rights and remedies of the parties hereto at law, in
equity, or under this Agreement.
3.3 Transferee and Future Shareholders. The Corporation and the
Shareholders shall cause any transferee of any Shares, and such transferee's
spouse, to execute a consent, in the form attached hereto as Exhibit B, to be
bound by the terms of this Agreement.
3.4 Notices. Any notice or other communication required or permitted to be
given under this Agreement must be in writing and given by (a) deposit in the
United Stares mail, addressed to the party to be notified, postage prepaid and
registered certified with return receipt requested, (b) delivery in person, by
courier service, or by overnight delivery service, or (c) transmission by
telecopy. Each notice or communication that is mailed, delivered, or transmitted
in the manner described above shall be deemed sufficiently given, served, sent,
and received, in the case of mailed notices, on the third business day following
the date on which it is mailed and, in the case of notices delivered by hand,
courier service, overnight delivery service, or telecopy, at such time as it is
delivered to the addressee (with the delivery receipt or the affidavit of the
courier service or overnight delivery service being proof of delivery) or at
such time as delivery is refused by the addressee upon presentation. For
purposes of notice, the addresses of the
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parties shall be the addresses set forth beside the signatures of the parties
hereto. Any party may change its address for notice by written notice given to
the other parties hereto.
3.5 Binding Effect. This Agreement shall be binding upon and enforceable
by the parties hereto and their respective executors, administrators,
successors, personal representatives, heirs, and assigns.
3.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF. The parties agree that any litigation directly or indirectly
relating to this Agreement must be brought before and determined by a court of
competent jurisdiction within Dallas County, Texas, and the parties hereby agree
to waive any rights to object to, and hereby agree to submit to, the
jurisdiction of such courts.
3.7 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal.
invalid, or unenforceable provision or by its severance herefrom. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar in its
terms to such illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
3.8 Entire Agreement. This Agreement and the Exhibits hereto constitute
the entire agreement and understanding between the parties relating to the
subject matter hereof and thereof and supersede all prior representations.
endorsements, premises, agreements, memoranda, communications, negotiations,
discussions, understandings, and arrangements, whether oral, written, or
inferred, between the parties relating to the subject matter hereof.
3.9 Counterparts. This Agreement may be executed 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. The parties intend that
faxed signature pages to this Agreement will be enforceable without presentation
of the manually executed signature pages.
3.10 Amendments. This Agreement may not be modified, amended, rescinded,
canceled, altered, or supplemented, in whole or in part, except upon the
execution and delivery of a written instrument executed by Xxxxxxxx.
3.11 Headings. The headings of the Articles and Sections of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict or otherwise modify any of the terms or provisions hereof or affect in
any way the meaning or interpretation of this Agreement.
3.12 Waiver. The waiver of any breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
3.13 No Third Party Beneficiaries. Except to the extent a third party is
expressly given rights herein, any agreement contained, expressed, or implied in
this Agreement shall be only for the benefit of the
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parties hereto and their respective executors, administrators, successors,
personal representatives, heirs, and assigns and such agreements shall not inure
to the benefit of the obligees of any indebtedness of any party hereto, it being
the intention of the parties hereto that no person or entity shall be deemed a
third party beneficiary of this Agreement except to the extent a third party is
expressly given rights herein.
3.14 Gender; Number. The use of terms denoting masculine, feminine, or
neuter gender shall include each other gender. The use of singular or plural
references shall include the other where appropriate.
3.15 Time is of the Essence. Time is of the essence with respect to all
time periods and dates referenced in this Agreement.
3.16 Termination of this Agreement. This Agreement shall continue until,
and shall terminate immediately and automatically upon (a) execution of a
written agreement of termination by Xxxxxxxx, (b) the merger of the Corporation,
other than with a wholly-owned subsidiary, pursuant to which the Shareholders do
not own at least 50.1% of the equity of the surviving corporation, or (c) the
dissolution and complete liquidation of the Corporation.
3.17 Spouses. By executing this Agreement, each spouse of each individual
Shareholder agrees to be bound in all respects by the terms of this Agreement to
the same extent as the Shareholders. Each spouse further agrees that should such
spouse predecease the Shareholder to whom such Shareholder is married or should
she become divorced from such Shareholder, any of the Shares which such spouse
may own or in which she may have any interest shall remain subject to all of the
restrictions and to all of the rights of the Shareholders contained in this
Agreement.
3.18 Arbitration. (a) In the event of a dispute arising out of or relating
to this Agreement, then, upon notice by any party to the other parties (an
"Arbitration Notice") and to the American Arbitration Association (the "AAA"),
the dispute shall be submitted to a sole arbitrator who is independent and
impartial, for binding arbitration in Dallas, Texas, in accordance with the
AAA's Commercial Arbitration Rules (the"Rules") as modified or supplemented by
this Agreement. The parties agree that they will faithfully observe this
Agreement and the Rules and that they will abide by and perform any award
rendered by the arbitrator. The arbitration shall be governed by the Federal
Arbitration Act (or by the same principles enunciated by such Act in the event
it may not be technically applicable). The award or judgment of the arbitrator
shall be final and binding on all parties and the judgment upon the award or
judgment of the arbitrator may be entered and enforced by any court having
jurisdiction. If any party becomes the subject of a bankruptcy, receivership, or
similar proceeding under the laws of the United States of America, any state or
commonwealth or any other nation or political subdivision thereof, then, to the
extent permitted or not prohibited by applicable law, any factual or substantive
legal issues arising in or during the pendency of any such proceeding shall be
subject to all of the foregoing mandatory arbitration provisions and shall be
resolved in accordance therewith. The agreements contained herein have been
given for valuable consideration, are coupled with an interest and are not
intended to be executory contracts. The fees and expenses of the arbitrator will
be shared equitably (as determined by the arbitrator) by all parties engaged in
the dispute.
(b) Promptly after the Arbitration Notice is given, the AAA will select
five (5) possible arbitrators, to whom the AAA will give the identities of the
parties and the general nature of the controversy. If any of those arbitrators
disqualified himself or declines to serve, the AAA shall continue to designate
potential arbitrators until the parties have a panel of five (5) arbitrators to
select from. After the panel of five
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(5) potential arbitrators has been completed, a two-page summary of the
background of each potential arbitrator will be given to each of the parties,
and the parties will have a period of ten (10) days after receiving the
summaries in which to attempt to agree upon the arbitrator to conduct the
arbitration. If the parties are unable to agree upon an arbitrator, then one (1)
of the parties shall notify the AAA and the other party, and the AAA will notify
each party that it has five (5) days from the AAA's notice to strike two (2)
names from the list and advise the AAA of the two (2) names stricken. After
expiration of the strike period, if all but one (1) candidate of the panel has
been stricken, the remaining one (1) person will be the arbitrator. If two (2)
or more have not been stricken, then the AAA shall select the arbitrator from
one of those not stricken. The decision of the AAA with respect to the selection
of the arbitrator will be final and binding in such case. For purposes of
selecting arbitrators, Xxxxxxxx will be one party and the Corporation and the
other Shareholders will be deemed to be one party.
(c) No litigation or other proceeding may ever be instituted at any time
in any court or before an administrative agency or body for the purpose of
adjudicating, interpreting, or enforcing any of the rights or obligations of the
parties hereto or any rights or obligations relating to the subject matter
hereof, whether or not covered by the express terms of this Agreement, or for
the purpose of adjudicating a breach or determination of the validity of this
Agreement, or for the purpose of having the award or judgment of an arbitrator,
except a proceeding instituted (i) for the purpose of having the award or
judgment of an arbitrator entered and enforced or (ii) to seek an injunction or
restraining order (but not damages in connection therewith) in circumstances
where such relief is available.
(d) Within 10 days after the selection of the arbitrator, the parties and
their counsel will appear before the arbitrator at a place in Dallas, Texas and
time designated by the arbitrator for the purpose of each party making a one
hour or less presentation and summary of the case. Thereafter, the arbitrator
will set dates and times for additional hearings in accordance with the Rules
until the proceeding is concluded. The desire and goal of the parties is, and
the arbitrator will be advised that his goal should be, to conduct and conclude
the arbitration proceeding as expeditiously as possible. If any party or his
counsel fails to appear at any hearing, the arbitrator shall be entitled to
reach a decision based on the evidence which has been presented to him by the
parties who did appear.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first written above.
ELGIN E^2, INC., a Delaware corporation
Address:
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By: /s/ [ILLEGIBLE]
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Its: President, CEO
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XXXXX XXXXX HOLDINGS, INC.,
a New York corporation
Address:
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By: /s/ [ILLEGIBLE]
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Its: INV. BANK [ILLEGIBLE]
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Address:
0000 Xxxxxxxx'x Xxx /s/ Xxxxxx X. Xxxxxxxx, Xx.
P.O. Box 569360 ---------------------------------------
Xxxxxx, XX 00000-0000 Xxxxxx X. Xxxxxxxx, Xx.
Address:
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Xxxxx Xxxxxxx
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Address:
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/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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XXXXX XXXXX HOLDINGS, INC.,
a New York corporation
Address:
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By:
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Its:
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Address:
0000 Xxxxxxxx'x Xxx
P.O. Box 569360 ---------------------------------------
Xxxxxx, XX 00000-0000 Xxxxxx X. Xxxxxxxx, Xx.
Address:
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/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Address:
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Xxxxx Xxxxxx
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Spouse's Signatures
Each of the undersigned, being the spouse of an individual Shareholder,
hereby acknowledges that he or she has read and understood the foregoing Voting
Agreement, and agrees to be bound by the terms thereof, including but not
limited to, Section 3.17 thereof.
/s/ [ILLEGIBLE]
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EXHIBIT A TO VOTING AGREEMENT
Stock Ownership
Ownership of
Name Common Stock
---- ------------
Xxxxxx X. Xxxxxxxx, Xx. 3,083,333
Xxxxx Xxxxxx 2,500,000
Xxxxx Xxxxxxx _________
Xxxxx Xxxxx Holdings, Inc. _________
Exhibit A - Stock Ownership
EXHIBIT B TO VOTING AGREEMENT
Consent
The undersigned, having purchased shares of Common Stock and/or securities
convertible and/or exchangeable into shares of Common Stock of Elgin E^2, Inc.,
a Delaware corporation (the "Corporation"), hereby agrees to be bound by the
terms and conditions of the Voting Agreement of the Corporation, the form of
which is attached hereto and agrees that the undersigned will hereafter be
deemed a "Shareholder" as defined in and described in the Voting Agreement.
Name ______________________________________
Signature ______________________________________
Address ______________________________________
______________________________________
______________________________________
Telecopy No. ______________________________________
No. of Shares
Common: ______________________________________
Preferred: ______________________________________
Date ______________________________________
I, the undersigned, being the spouse of the above-named Shareholder,
hereby acknowledge that I have read and understand the Voting Agreement, and I
agree to be bound by the terms thereof, including, but not limited to, Section
3.17 thereof.
Name _______________________________________________
Signature _______________________________________________
