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EXHIBIT (C)(2)
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of __________, 1998, ("Agreement") is
made by and among INTREPID CAPITAL CORPORATION, a Delaware corporation
("Corporation"), certain STOCKHOLDERS of Enviroq Corporation, a Delaware
Corporation ("Enviroq") set forth on Schedule A hereto ("Principal Enviroq
Stockholders") and certain SHAREHOLDERS of Institutional Asset Management, Inc.,
a Florida Corporation ("IAM") and Capital Research Corporation, a Florida
Corporation ("CRC") set forth on Schedule B hereto ("Principal IAM/CRC
Shareholders").
R E C I T A L S :
WHEREAS, this Agreement is being delivered pursuant to Sections 8.8,
9.9 and 10.9 of that certain Agreement and Plan of Reorganization, dated as of
April 22, 1998, among Enviroq, CRC, IAM and certain other entities ("Merger
Agreement");
WHEREAS, this Agreement is being executed and delivered by the
Principal Enviroq Stockholders and the Principal IAM/CRC Shareholders prior to
the Effective Time (as that term is defined in the Merger Agreement) and shall
govern the actions of such parties in their capacity as stockholders of the
Corporation after the Effective Time;
WHEREAS, prior to the Effective Time, the Principal Enviroq
Stockholders own an aggregate of 552,875 shares of common stock, par value $0.01
per share, of Enviroq ("Enviroq Common Stock"), representing approximately
54.77% of the issued and outstanding Enviroq Common Stock;
WHEREAS, prior to the Effective Time, the Principal IAM/CRC
Shareholders own an aggregate of 500 shares of common stock, par value $0.01, of
IAM ("IAM Common Stock"), representing all of the issued and outstanding IAM
Common Stock and 500 shares of common stock, par value $25.00 per share, of CRC
("CRC Common Stock"), representing all of the issued and outstanding CRC Common
Stock;
WHEREAS, subject to the terms and conditions of the Merger Agreement,
upon completion of and by virtue of the Redemption and the Mergers (as these
terms are defined in the Merger Agreement), the Enviroq Principal Stockholders
will receive a certain amount of cash (as a result of the Redemption or the
Mergers, in the event such stockholder chooses not to participate in the
Redemption) and 552,875 shares of the common stock, par value $0.01 per share,
of the Corporation ("Stock"), in consideration for their shares of Enviroq
Stock; the 500 shares of IAM Common Stock owned by the IAM/CRC Principal
Shareholders will be converted into 603,074 shares of Stock; and the 500 shares
of CRC Common Stock owned by the Principal IAM/CRC Shareholders will be
converted into 603,074 shares of Stock.
WHEREAS, the parties hereto desire to provide for certain transfer
restrictions and voting agreements among the stockholders of the Corporation who
are parties hereto and to provide for certain other rights to such stockholders;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises set forth herein, and other good and valuable consideration, the
parties hereto hereby agree as follows:
Section A. DEFINITIONS; CONSTRUCTION: For purposes of this Agreement,
the following terms shall have the following meanings:
A. "Affiliate" shall mean, with respect to a Person, any
Person which controls, is controlled by or is under common control with such
Person and any officer, director, shareholder or employee of such Person and any
member of the Immediate Family of any natural person.
B. "Board" shall mean the Board of directors of the
Corporation.
C. "Director" shall mean a member of the Board.
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D. "Corporation" shall mean Freedom Capital Corporation, a
corporation organized and existing under the laws of Delaware, and any
corporation that shall succeed to the business and assets of the Corporation in
a transaction (such as a merger, consolidation, or reorganization) in which the
Stock of the Corporation is converted into capital stock of such successor
corporation.
E. "Immediate Family" shall mean, with respect to any natural
person, such natural person's spouse, lineal descendants, grandparent or
grandparents, parent or parents, brother or brothers, and sister or sisters, in
every case including, as appropriate, adoptive relationships.
F. "Person" means an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or association, a limited liability company, a
limited liability partnership, or a government entity (or any department,
agency, or political subdivision thereof);
G. "Principal Enviroq Stockholders" means those stockholders
set forth on Schedule A hereto and any Person who hereafter acquires Stock from
a Principal Enviroq Stockholder and becomes a party hereto;
H. "Principal IAM/CRC Shareholders" means those stockholders
set forth on Schedule B hereto and any Person who hereafter acquires Stock from
a Principal IAM/CRC Shareholder and becomes a party hereto;
I. "Stock" shall mean the authorized shares of the
Corporation's common stock, par value $0.01 per share, and any other authorized
shares of capital stock of the Corporation (of whatever kind, class or
designation), whether now or hereafter authorized, if such shares generally have
the right to elect Directors.
J. "Stockholder" shall mean the any of the Principal Enviroq
Stockholders, any of the Principal IAM/CRC Shareholders or any Person who
hereafter acquires Stock and becomes a party hereto; and the term "Stockholders"
refers collectively to those Persons who, as of any particular time, constitute
all the holders of Stock who are then parties to this Agreement.
Throughout this Agreement, the words "own", "owns" or "ownership" shall include
the ownership of all shares by such Person, whether beneficially, as defined in
Rule 13d-3 promulgated pursuant to the Securities Exchange Act of 1934, as
amended, or of record.
Section 2. GENERAL PROHIBITION AGAINST TRANSFERS. No Stockholder shall
sell, assign, pledge, dispose of, hypothecate, or otherwise transfer (whether by
operation of law or otherwise), or encumber any interest in its Stock ("Proposed
Transfer"), except in accordance with the terms of this Agreement.
Section 3. PERMITTED TRANSFERS. No Stockholder shall consummate any
Proposed Transfer, and no Proposed Transfer shall be deemed effective, unless
and until either (I) with respect to any transfer to a Person that is not an
Affiliate of the Stockholder, the Stockholder shall have provided notice to the
Corporation of the nature of the Proposed Transfer, the name of the Person that
is to be the proposed transferee with respect to such Proposed Transfer and a
statement to the effect that such Person is not an Affiliate of such Stockholder
or (ii) with respect to any Proposed Transfer by operation of law or Proposed
Transfer to an Affiliate of a Stockholder, the Person that is to be the proposed
transferee with respect to the Proposed Transfer shall become a party to this
Agreement, as such may be amended from time to time, by executing a counterpart
of this Agreement in respect of the Stockholder's Stock to be transferred
pursuant to such Proposed Transfer.
Section 4. BOARD COMPOSITION; ELECTION OF DIRECTORS.
(a) As soon as practicable after the Mergers, the Stockholders
shall take all such actions with respect to the voting of their shares of Stock
to cause there to be elected as Directors the seven persons named in Section 2.6
of the Merger Agreement and to establish the maximum number of Directors at
seven persons.
(b) After the election of the initial Board, during any period
where the Stockholders own fifty percent (50%) or more of the issued and
outstanding shares of Stock, the Stockholders shall take all such actions with
respect to the voting of their shares of Stock to keep the maximum number of
Directors at seven persons and,
(i) in the case where the Principal IAM/CRC
Shareholders own the same or greater number of shares of Stock
in comparison to that owned by the Principal Enviroq
Stockholders, to cause there to be on the Board at least four
persons designated as Directors by the Principal IAM/CRC
Shareholders and one person designated as a Director for each
ten percent (10%) or fraction thereof
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of the total issued and outstanding shares of Stock that is
owned as a group by the Principal Enviroq Stockholders (that
is, three Directors if the Principal Enviroq Stockholders own
over 20% of the issued and outstanding shares of Stock; two
Directors if they own over 10% but not more than 20% of the
shares of Stock; and one Director if they own 10% or less of
the shares of Stock); provided, however, (A) if the Principal
Enviroq Stockholders as group are entitled to designate fewer
than three Directors, then the Principal IAM/CRC Shareholders
shall be entitled to designate additional Directors until such
point as the total number of Directors to be designated by
this provision equals seven and (B) the maximum number of
Directors that the Principal Enviroq Stockholders shall be
entitled to designate pursuant to this Section 4(b)(I) is
three; or
(ii) in the case where the Principal Enviroq
Stockholders own a greater number of shares of Stock than the
Principal IAM/CRC Shareholders, to cause there to be on the
Board four persons designated as Directors by the Principal
Enviroq Stockholders and one person designated as a Director
for each ten percent (10%) or fraction thereof of the total
issued and outstanding shares of Stock that is owned as a
group by the Principal IAM/CRC Shareholders (that is, three
Directors if the Principal IAM/CRC Shareholders own over 20%
of the issued and outstanding shares of Stock; two Directors
if they own over 10% but not more than 20% of the shares of
Stock; and one Director if they own 10% or less of the shares
of Stock); provided, however, (A) if the Principal IAM/CRC
Shareholders as a group are entitled to designate fewer than
three Directors, then the Principal Enviroq Stockholders shall
be entitled to designate additional Directors until such point
as the total number of Directors to be designated by this
provision equals seven and (B) the maximum number of Directors
that the Principal IAM/CRC Shareholders shall be entitled to
designate pursuant to this Section 4(b)(ii) is three.
(c) After the election of the initial Board, during any period
where the Stockholders own less than fifty percent (50%) of the issued and
outstanding shares of Stock, the Stockholders shall take all such actions with
respect to the voting of their shares of Stock:
(i) in the case where the Principal IAM/CRC
Shareholders own the same or greater number of shares of Stock
in comparison to that owned by the Principal Enviroq
Stockholders, to cause there to be on the Board at least that
number of persons designated as Directors by the Principal
IAM/CRC Shareholders which constitutes a majority of the Board
("IAM Majority");
provided, however, (A) if the Stockholders
do not have sufficient votes to cause there to be on the Board
an IAM Majority, then the Stockholders shall use their best
efforts to designate and elect the maximum possible number of
Directors (that is, without increasing the number of Director
seats then authorized by the Corporation's constituent
documents), all of whom shall be designated by the Principal
IAM/CRC Shareholders; (B) in the event that the Stockholders
have a sufficient number of shares of Stock to cause there to
be on the Board an IAM Majority, then the Stockholders shall
use their best efforts to cause there to be on the Board a
maximum number of additional Directors (that is, without
increasing the number of Director seats then authorized by the
Corporation's constituent documents), who are to be designated
by the Principal Enviroq Stockholders and/or the Principal
IAM/CRC Shareholders, as the case may be, so that the total
number of Directors designated by the Stockholders is
proportional to number of shares of Stock owned by the
Principal Enviroq Stockholders in comparison to the number of
shares of Stock owned by the Principal IAM/CRC Shareholders;
(C) in the event that proviso (B) of this Section 4(c)(I) is
applicable and subject to proviso (E) of this Section 4(c)(I),
the Principal Enviroq Stockholders shall be entitled to
designate at least one Director; (D) subject to proviso (E) of
this Section (4)(c)(I), when determining the number of
Directors to be designated by the Principal Enviroq
Stockholders pursuant to proviso (B) of this Section 4(c)(I),
such number shall be rounded up to the next higher number if
the proportional analysis would result in the Principal
Enviroq Stockholders being entitled to designate a fractional
directorship; and (E) neither proviso (C) nor (D) of this
Section 4(c)(I) shall be interpreted to permit the Principal
Enviroq Stockholders to designate additional Directors if
there would no longer be an IAM Majority on the Board as a
result of such action; or
(ii) in the case where the Principal Enviroq
Stockholders own a greater number of shares of Stock than the
principal IAM/CRC Shareholders, to cause there to be on the
Board at least that number of persons designated as Directors
by the Principal Enviroq Stockholders which constitutes a
majority of the Board ("Enviroq Majority");
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provided, however, (A) if the Stockholders
do not have sufficient votes to cause there to be on the Board
an Enviroq Majority, then the Stockholders shall use their
best efforts to designate and elect the maximum possible
number of Directors (that is, without increasing the number of
Director seats then authorized by the Corporation's
constituent documents), all of whom shall be designated by the
Principal Enviroq Stockholders; (B) in the event that the
Stockholders have a sufficient number of shares of Stock to
cause there to be on the Board an Enviroq Majority, then the
Stockholders shall use their best efforts to cause there to be
on the Board a maximum number of additional Directors (that
is, without increasing the number of Director seats then
authorized by the Corporation's constituent documents), who
are to be designated by the Principal Enviroq Stockholders
and/or the Principal IAM/CRC Shareholders, as the case may be,
so that the total number of Directors designated by the
Stockholders is proportional to number of shares of Stock
owned by the Principal IAM/CRC Shareholders in comparison to
the number of shares of Stock owned by the Principal Enviroq
Stockholders; (C) in the event that proviso (B) of this
Section 4(c)(ii) is applicable and subject to proviso (E) of
this Section 4(c)(ii), the Principal IAM/CRC Shareholders
shall be entitled to designate at least one Director; (D)
subject to proviso (E) of this Section 4(c)(ii), when
determining the number of Directors to be designated by the
Principal IAM/CRC Shareholders pursuant to proviso (B) of this
Section 4(c)(ii), such number shall be rounded up to the next
higher number if the proportional analysis would result in the
Principal IAM/CRC Shareholders being entitled to designate a
fractional directorship; and (E) neither proviso (C) nor (D)
of this Section 4(c)(ii) shall be interpreted to permit the
Principal IAM/CRC Shareholders to designate additional
Directors if there would no longer be an Enviroq Majority on
the Board as a result of such action.
Section 5. NOTIFICATION OF DESIGNEES; DIRECTOR RESIGNATION, ETC.;
FURTHER ACTIONS.
(a) A letter executed by the holder(s) of a majority of the
shares of Stock owned by the Principal Enviroq Stockholders and delivered to the
Principal IAM/CRC Shareholders at the address (as may be amended from time to
time) and in the manner set forth in Section 11 hereof shall be deemed to give
notice as to the Principal Enviroq Stockholders' preferred Board designees and
other matters.
(b) A letter executed by the holder(s) of a majority of the
shares of Stock owned by the Principal IAM/CRC Shareholders and delivered to the
Principal Enviroq Stockholders at the address (as may be amended from time to
time) and in the manner set forth in Section 11 hereof shall be deemed to give
notice as to the Principal IAM/CRC Shareholders' preferred Board designees and
other matters.
(c) In the event that a Director resigns, dies or otherwise
ceases to be a Director before the expiration of such Director's term as a
Director, the group which was entitled to designate such Director (either the
Principal IAM/CRC Shareholders or the Principal Enviroq Stockholders, as the
case may be) shall be entitled to designate the person to replace such Director
for the remainder of his or her unexpired term. In the event that Directors
shall be entitled to fill a vacancy on the Board, the Stockholders agree to
cause their respective representative Directors to vote to fill such vacancy in
accordance with the immediately preceding sentence.
(d) The Stockholders agree to work together and take all
actions necessary or advisable to carry out the intent of this Agreement and to
give maximum effect to the provisions hereof, including, without limitation, the
calling of special meetings of the stockholders of the Corporation and the
amendment of the constituent documents of the Corporation, as may be necessary
or advisable.
(e) Whenever there is a change in ownership of the shares of
Stock owned by either the Principal IAM/CRC Shareholders or the Principal
Enviroq Stockholders or other event (such as the issuance of additional shares
of Stock which has a dilutive effect on some of the Stockholders), the effect of
which would result in a change in the number of the Directors that the Principal
IAM/CRC Shareholders and the Principal Enviroq Stockholders, respectively, are
entitled to designate pursuant to Section 3 hereof, it shall be incumbent on the
adversely affected party to notify the other party, as set forth in Section 5(a)
or 5(b), of the action it requests, and, as soon as practicable after such
notification, the Stockholders shall take all such actions necessary or
advisable to adjust the respective number of Directors designated by each party
in accordance with Section 3 hereof.
Section 6. TERMINATION. This Agreement shall terminate upon the
occurrence of any of the following events:
(a) the Corporation shall have (I) applied for or consented to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its assets;
(ii) made
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a general assignment for the benefit of its creditors, (iii) commenced a
voluntary case under the Federal Bankruptcy Code of 1978 ("Code"); (iv) filed a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or readjustment of debts,
(v) failed to controvert within 60 days or in a timely and appropriate manner,
or acquiesced in writing to, any petition filed against it in an involuntary
case under the Code, or (vi) taken any corporate action for the purpose of
effecting the foregoing;
(b) the written consent of all the Stockholders.
(c) the Stockholders own less than twenty percent (20%) of the
issued and outstanding shares of Stock.
(d) either the Principal Enviroq Stockholders or the Principal
IAM/CRC Shareholders own less than ten percent (10%) of the issued and
outstanding shares of Stock.
(e) the date that is twenty-one years after the date of death
of any natural Person who is a party to this Agreement on the date first written
above.
Upon the termination of this Agreement, each Stockholder may surrender to the
Corporation the certificates representing its Stock, and the Corporation shall
issue to it in lieu thereof new certificates for an equal number of shares
without the endorsement set forth in Section 10 hereof.
Section 7. CORPORATION ACTIONS. The Corporation agrees that it will not
make any transfer of shares of Stock on the Corporation's stock transfer books
except in accordance with, and otherwise will not take any action with respect
to the issuance of certificates representing shares of Stock to any proposed
transferee that violates, the terms of this Agreement. The Corporation agrees to
so instruct its transfer agent as to the requirements of this provision and to
issue shares of Stock with the legend set forth in Section 11 hereof, as
appropriate.
Section 8. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors, assigns, heirs and legal representatives.
Section 9. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware
without regard to application of the conflicts of laws principles of such
jurisdiction. The respective obligations of the parties hereunder shall be
subject to compliance with all applicable laws and regulations including,
without limitation, the DGCL.
Section 10. COUNTERPARTS. This Agreement may be executed in any number
of counterparts all of which together shall constitute one Agreement.
Section 11. LEGENDS. Each certificate representing shares of Stock
shall have, in addition to any other legends which may be required or
appropriate, endorsed thereon legends in substantially the following forms:
"These securities are subject to the provisions of that
certain Voting Agreement among the corporation, the holder named on this
certificate and certain other stockholders of the corporation, as the same shall
be amended from time to time, and no transfer hereof may be made in violation
thereof. A copy of said Agreement is available for inspection at the offices of
the corporation."
Section 12. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
(a) If to the Corporation:
c/o Enviroq Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Post Office Box 130062
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
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Facsimile: (000)000-0000
with a copy to:
Xxxxxxx Xxxxx Rose & White LLP
0000 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telephone (000) 000-0000
Facsimile (000) 000-0000
(b) If to the Principal IAM/CRC Shareholders:
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone (000) 000-0000
Facsimile (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx, Esq.
Telephone (000) 000-0000
Facsimile (000) 000-0000
(c) If to the Principal Enviroq Stockholders:
c/o Enviroq Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Post Office Box 130062
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
with a copy to:
Xxxxxxx Xxxxx Rose & White LLP
0000 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Telephone (000) 000-0000
Facsimile (000) 000-0000
Section 13. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
Section 14. AMENDMENT. This Agreement may be amended from time to time
in writing by the consent of all parties to this Agreement at the time of such
amendment. This Agreement will be deemed to be amended each and every time a new
Person (that is, other than the original Stockholders party to this Agreement as
of the date first written above) becomes a party to this Agreement by executing
and delivering a counterpart copy of this Agreement (as may be amended from time
to time).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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INTREPID CAPITAL CORPORATION
By:/s/
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Name:
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Title:
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XXXXXXX X. XXXX
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XXXXXXXXX SECURITIES ASSOCIATES
By:/s/
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Name:
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Title:
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XXXXXXX XXXXXX
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XXXX X. XXXXXX
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SCHEDULE A
Xxxxxxx X. Xxxx
Xxxxxxxxx Securities Associates
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SCHEDULE B
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxx
