Exhibit 2.16
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of March 31, 1999 (the
"Effective Date"), is by and among CenterPoint Advisors, Inc., a Delaware
corporation ("CenterPoint"), and the individuals listed on the signature pages
hereof (each, a "Member" and collectively, the "Members").
PREAMBLE
A. Concurrently herewith, CenterPoint, Berry, Dunn, XxXxxx & Xxxxxx,
Chartered (the "Company"), Xxxxx Xxxx Mergersub Inc., a Delaware corporation and
a direct wholly-owned subsidiary of CenterPoint ("Mergersub"), BDM&P Holdings,
L.L.C., a Maine limited liability company ("Seller"), and certain members of
Seller are entering into a Merger Agreement (as amended from time to time, the
"Merger Agreement"; capitalized terms used but not otherwise defined herein have
the meanings assigned in the Merger Agreement) pursuant to which Mergersub will
be merged with and into the Company, with the Company continuing as the
surviving corporation and as a direct wholly-owned subsidiary of CenterPoint
(the "Merger").
B. Each Member owns the number of shares of the Company's common stock, no
par value per share ("Company Common Stock"), set forth opposite such Member's
name and signature on the signature pages hereof (the "Shares").
C. Each Member owns the equity interest and percentage of Seller's total
outstanding equity interests set forth opposite such Member's name and signature
on the signature pages hereof (each, an "Interest").
D. Pursuant to the terms of the Merger Agreement, each of the Members will
contribute the Shares held by such Member to Seller.
E. As an inducement and a condition to entering into the Merger Agreement,
CenterPoint has required that the Members agree, and the Members have agreed, to
enter into this Agreement.
STATEMENT OF AGREEMENT
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
CenterPoint and the Members agree as follows:
1. Provisions Concerning the Shares and the Interests. Each Member
hereby agrees that during the period commencing on the Effective Date and
continuing until the first to occur of (a) the Effective Time or (b) the
termination of the Merger Agreement in accordance with its terms, at any meeting
of the holders of Company Common Stock or the members of Seller, however called,
or in connection with any written consent of the holders of Company Common Stock
or the members of Seller, such Member shall vote (or cause to be voted) the
Shares or Interest, as applicable, held of record or Beneficially Owned (as
defined below) by such Member,
whether heretofore owned or hereafter acquired, including without limitation by
voting such Interest in favor of Seller voting its shares of capital stock of
the Company, as follows: (i) in favor of approval of the Merger, the Merger
Agreement, the transactions contemplated by the Merger Agreement and any actions
required in furtherance hereof and thereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company, Seller or any
Member under the Merger Agreement. Such Member shall not enter into any
agreement or understanding with any Person the effect of which would be
inconsistent or violative of the provisions and agreements contained in Section
1 or 2 of this Agreement. For purposes of this Agreement, "Beneficially Own",
"Beneficially Owned" or "Beneficial Ownership" (or any other derivative of such
terms) with respect to any securities shall mean having "beneficial ownership"
of such securities as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including, without
limitation, pursuant to any agreement, arrangement or understanding, whether or
not in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would constitute a
"group" within the meaning of Section 13(d)(3) of the Exchange Act. Without
limiting the covenants in this Section 1, in the event of a stock dividend or
distribution, or any change in the Company's outstanding capital stock or the
outstanding interests of Seller for any reason, including without limitation any
split-up, recapitalization, combination, or exchange of equity interests, the
terms "Shares" and "Interest" shall be deemed to refer to and include the Shares
and Interest, as applicable, as well as all such shares of capital stock or
other equity interests into which or for which any or all of the Shares or the
Interest may be changed or exchanged.
2. Other Covenants, Representations and Warranties. Each Member
severally hereby represents and warrants to CenterPoint as follows:
(a) Ownership of Shares and Interests. Such Member is the record and
Beneficial Owner of the number of Shares and the Interest as set forth
opposite such Member's name and signature on the signature pages hereof.
Such Shares and Interest, together with the Shares and Interests set forth
opposite each other Member's name and signature on the signature pages
hereof, represent the requisite number of shares of the Company's capital
stock and percentage of Seller's membership interests required to approve
and/or cause Seller to approve the Merger, the Merger Agreement, the
transactions contemplated by the Merger Agreement and any actions required
in furtherance hereof and thereof, and otherwise to act and cause Seller
and the Company to act as provided in Section 1 above. On the Effective
Date, the number of Shares and the Interest set forth opposite such
Member's name and signature on the signature pages hereof constitute all of
the shares of the Company's capital stock and the entire membership
interest in Seller owned of record or Beneficially Owned by such Member or
as to which such Member has voting power by proxy, voting agreement, voting
trust or other similar instrument. Such Member has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Section 1 of this Agreement, sole power of disposition, sole power of
conversion, sole power to demand dissenters' rights and sole power to agree
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to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares and the entire Interest as set forth opposite
such Member's name and signature on the signature pages hereof.
(b) Power; Binding Agreement. Such Member has the legal capacity,
power and authority to enter into and perform all of such Member's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Member will not violate any other agreement to
which such Member is a party including, without limitation, any voting
agreement, stockholders agreement, operating agreements, voting trust,
trust or similar agreement. This Agreement has been duly and validly
executed and delivered by such Member and constitutes a valid and binding
agreement of such Member, enforceable against such Member in accordance
with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and
(ii) general equitable principles. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which such
Member is trustee whose consent is required for the execution and delivery
of this Agreement or the consummation by such Member of the transactions
contemplated hereby. If such Member is married and such Member's Shares
and Interest constitutes community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Member's spouse, enforceable against such person in
accordance with its terms.
(c) No Conflicts. (A) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Member and the
consummation by such Member of the transactions contemplated hereby and (B)
none of the execution and delivery of this Agreement by such Member, the
consummation by such Member of the transactions contemplated by this
Agreement or compliance by such Member with any of the provisions of this
Agreement shall (1) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such Member is a party or by which such Member or any of such
Member's properties or assets may be bound, or (2) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to such Member or any of such Member's Shares or Interests (other than to
the extent any of the foregoing relates to regulating, licensing or
permitting the practice of public accountancy).
(d) Accredited Investor. Each of the Members identified as an
"accredited investor" on the signature pages hereof, represents and
warrants to Mergersub and CenterPoint that such Member (i) is an "1
accredited investor" as defined in Regulation D promulgated under the
Securities Act, (ii) is able to bear the economic risk of an investment in
the CenterPoint Common Stock acquired pursuant to the Merger Agreement and
can afford to sustain a total loss of such investment, (iii) has such
knowledge and
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experience in financial and business matters that such Member is capable of
evaluating the merits and risks of the proposed investment in the
CenterPoint Common Stock and (iv) has had an adequate opportunity to ask
questions and receive answers from the officers of CenterPoint concerning
all matters relating to the transactions contemplated herein and in the
Merger Agreement including, without limitation, the background and
experience of the current and proposed officers and directors of
CenterPoint, and the plans for the business and operation of CenterPoint.
(e) Restriction on Transfer, Proxies and Non-Interference. Such
Member shall not, directly or indirectly: (i) except as contemplated by the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Member's Shares or Interest or any
interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any of such Shares or part of such
Interest into a voting trust or enter into a voting agreement with respect
to any of such Shares or part of such Interest; or (iii) take any action
that would make any representation or warranty of such Member contained
herein untrue or incorrect or have the effect of preventing or disabling
such Member from performing such Member's obligations under this Agreement.
(f) Reliance by CenterPoint. Such Member understands and acknowledges
that CenterPoint is entering into the Merger Agreement in reliance upon
such Member's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at CenterPoint's request and
without further consideration, each Member shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
4. [Reserved]
5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares and the Interest shall
terminate upon the earlier of (a) termination of the Merger Agreement in
accordance with its terms or (b) the Effective Time.
6. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
(including the documents and instruments referred to therein) constitute
the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter of this Agreement.
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(b) Certain Events. Each Member agrees that this Agreement and the
obligations hereunder shall attach to such Member's Shares and Interest and
shall be binding upon any person or entity to which legal or Beneficial
Ownership of any such Shares or Interest shall pass, whether by operation
of law or otherwise, including, without limitation, such Member's heirs,
guardians, administrators or successors. Notwithstanding any such transfer
of Shares or Interest, the transferor shall remain liable for the
performance of all obligations of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Members, except upon the execution and delivery
of a written agreement executed by the parties hereto; provided, that any
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stockholder of the Company or member of Seller who agrees to be bound by
the terms of this Agreement may become a signatory hereto without the
agreement of any other party hereto, and thereafter such added stockholder
or member shall be treated as a "Member" for all purposes of this
Agreement.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by
nationally recognized expedited delivery service providing proof of
delivery or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by notice given in accordance
with this Section):
If to a Member: At the address set forth
opposite such Member's
name on the signature pages hereof
with a copy to:
Xxxxxx Xxxxx Gardner& Xxxxx
00 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxx
If to CenterPoint or Mergersub, to:
CenterPoint Advisors, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
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with a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision of this Agreement in
such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any of
such rights, powers or remedies by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(j) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Maine, without giving effect to
the principles of conflicts of law thereof.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT.
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(l) [Reserved].
(m) Counterparts. This Agreement may be executed in counterparts via
facsimile or otherwise, each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same
agreement.
(n) Recovery of Attorney's Fees. In the event of any litigation
between the parties relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorney's fees and costs
(including court costs) from the non-prevailing party, provided that if
both parties prevail in part, the reasonable attorney's fees and costs
shall be awarded by the court in such manner as it deems equitable to
reflect the relative amounts and merits of the parties' claims.
* * *
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IN WITNESS WHEREOF, CenterPoint and the Members have caused this
Agreement to be duly executed as of the Effective Date.
CENTERPOINT ADVISORS, INC.
By: /S/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
PERCENTAGE
EQUITY AND NUMBER OF
VOTING INTEREST BENEFICIALLY
MEMBERS: "ACCREDITED" ADDRESS BENEFICIALLY OWNED
(Yes/No) OWNED SHARES
/S/ Xxxxxx X. Xxxxxxxx,
--------------------------
Xxxxxx X. Xxxxxxxx, Xx. YES
/S/ J. Xxxxxxx X. Xxxxxx
--------------------------
J. Xxxxxxx X. Xxxxxx YES
/S/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx YES
/S/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxxxx YES
/S/ Xxx X. Chick
--------------------------
Xxx X. Chick YES
/S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx YES
/S/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx YES
/S/ Xxxxxx X. Irish
--------------------------
Xxxxxx X. Irish YES
/S/ Xxxx X. Xxxxxxx, Xx.
--------------------------
Xxxx X. Xxxxxxx, Xx. YES
/S/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx YES
/S/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx YES
/S/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx YES
/S/ Xxxxxxx X. XxXxxx
--------------------------
Xxxxxxx X. XxXxxx YES
/S/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx YES
/S/ Xxxxxxxx X. Xxxxxx, Xx.
---------------------------
Xxxxxxxx X. Xxxxxx, Xx. YES
/S/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx YES
/S/ Xxxx X. Xxxxxxx
---------------------------
Xxxx X. Xxxxxxx YES
/S/ Xxxxxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxxxxx X. Xxxxx YES
/S/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx YES
/S/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx YES
/S/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx NO
