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Exhibit 10
Voting Agreement
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EXHIBIT 10
VOTING AGREEMENT
AGREEMENT (this "Agreement") dated as of the 13th day of March, 2000,
between LEG PARTNERS III SBIC, L.P. ("LEG"), XXXXX XXXXXX ("Sharma") and XXXXXXX
X. XXXXXXXX ("Xxxxxxxx").
PRELIMINARY STATEMENT. On the date hereof, LEG is purchasing 500,000
shares of common stock, par value $.001 per share (the "Common Stock"), of TBM
Holdings, Inc., a Florida corporation (the "Company"), pursuant to that certain
Subscription and Investment Representation Agreement, dated February 23, 2000
(the "Subscription Agreement"). Pursuant to the terms of the Subscription
Agreement, LEG desires to give Sharma or, in the event of the death or
incapacity of Sharma, Schwartz, with full power of substitution, the right to
vote, or to execute and deliver written consents or otherwise act in respect of,
such 500,000 shares of Common Stock and any other shares of Common Stock or
capital stock of the Company which may be issued to or acquired by LEG from time
to time in respect of such 500,000 shares of Common Stock, whether by exchange,
conversion of securities, stock split, dividend, combination of shares or any
similar capital adjustment, or through any corporate reorganization or
otherwise, so long as such shares remain subject to this Agreement (the
"Shares"), all in accordance with the terms and conditions set forth in this
Agreement. Sharma or, in the event of the death or incapacity of Sharma,
Xxxxxxxx is sometimes referred to herein as the "Proxyholder."
In consideration of the foregoing premises and the mutual covenants and
agreements set forth herein, LEG, Sharma and Xxxxxxxx hereby agree as follows:
1. Voting Agreement. On and after the date hereof, LEG agrees to vote
the Shares at all meetings of the shareholders of the Company, to execute and
deliver written consents as permitted pursuant to the Florida Business
Corporation Act, or the comparable laws of any state to which the Company
changes its state of incorporation, or to otherwise act with respect to the
Shares in the same manner as the Proxyholder is required pursuant to Section 3
below to vote the Shares, give his written consent or otherwise act with respect
to the Shares from time to time, including without limitation, refraining from
voting the Shares or giving a consent or otherwise acting in respect thereof.
2. Irrevocable Proxy. To ensure compliance with Section 1, LEG hereby
agrees to grant to the Proxyholder an irrevocable proxy in the form of Exhibit A
annexed hereto, pursuant to the provisions of Section 607.0722 of the Florida
Business Corporation Act (or, in the event the Company changes its state of
incorporation, pursuant to any comparable law of the Company's state of
incorporation), to vote, or to execute and deliver written consents or otherwise
act in respect of the Shares in the manner required by Section 3 below, as
fully, to the same extent and with the same effect as LEG might or could do
under applicable laws or regulations governing the rights and powers of
shareholders of a corporation incorporated under the laws of the Company's state
of incorporation. LEG hereby affirms that the proxy granted hereunder is given
as a condition of the voting agreement provided in Section 1 and as such is
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coupled with an interest and is irrevocable. LEG agrees from time to time to
take such further action and to execute and deliver such further agreements,
proxies and other instruments as may be necessary to carry out the intent of
this Agreement, including, without limitation, this Section 2.
3. Duties of the Proxyholder; Manner of Voting Shares. In consideration
of LEG's entering into this Agreement and granting the irrevocable proxy
provided under Section 2, the Proxyholder hereby covenants and agrees to vote
the Shares, execute and deliver written consents or otherwise act in the same
manner and in the same proportion (for or against or abstain with respect to any
proposition or not voted in respect of such proposition) that all shares of
Common Stock beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") by
Colt Capital, LLC, Colt Services, Inc., TBM Capital II, LLC, Sharma and Xxxxxxxx
(the "Voting Group") are voted for or against or abstain with respect to such
proposition or are not voted. By way of illustration, pursuant to this Section 3
the Shares will be voted in accordance with a fraction, (x) the numerator of
which is the number of shares of Common Stock beneficially owned by the Voting
Group that is voted for or against or that abstain with respect to or that do
not vote with respect to a proposition and (y) in each case, the denominator of
which is the total number of shares of Common Stock beneficially owned by the
Voting Group.
4. Termination. This Agreement shall terminate on the earlier to occur
of (a) the mutual agreement of the parties hereto to the Agreement's termination
or (b) the death or permanent disability of Sharma and Xxxxxxxx. This Agreement
and the irrevocable proxy provided under Section 2 shall also terminate as to
any Shares sold, transferred or assigned to any person who is not (i) an
affiliate (as defined in the Securities Act of 1933 and the rules and
regulations thereunder (the "Securities Act")) of LEG or (ii) after giving
effect to such sale, transfer or assignment, the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of ten percent or more
of the Common Stock.
5. Legend. As long as this Agreement shall remain in effect with
respect to any Shares, each and every certificate or other instrument
representing the Shares shall bear on the face or the reverse side thereof a
legend in substantially the following form, in addition to such other
restrictive legends as may be required by law or pursuant to any other
agreement:
The securities represented by this certificate are subject to
the terms and conditions of a Voting Agreement between the
registered owner hereof and certain holders of securities of
the Corporation, and to the irrevocable proxy granted
thereunder, a copy of which Agreement has been deposited with
the Corporation at its principal business office.
Upon the written request of LEG, the Company shall promptly cause the removal of
the foregoing legend on any certificate representing any shares of Common Stock
as to which this
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Agreement and the irrevocable proxy provided under Section 2 are no longer
applicable in accordance with the terms of this Agreement.
6. Miscellaneous Provisions.
(a) Entire Agreement; Termination. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
unless terminated as provided herein, shall be irrevocable and specifically
enforceable in accordance with its terms as between the parties hereto and their
transferees.
(b) Notices and Communications. All notices and other communications to
be given to a party under this Agreement shall either be hand delivered, sent by
facsimile transmission or by overnight national delivery service or by certified
or registered mail to the following:
in the case of LEG: c/x Xxxxx Associates Incorporated
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
in the case of Sharma: c/o TBM Holdings, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
in the case of Xxxxxxxx: c/o TBM Holdings, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
or to such other address as may be designated by either party hereto in a
writing delivered to the other party in the manner set forth in this Section.
Notices sent by certified or registered mail shall be deemed received three
business days after being mailed; all other notices shall be deemed received on
the date delivered.
(c) Binding Effect. This Agreement and the irrevocable proxy provided
under Section 2 shall be binding upon and enforceable by each of the parties
hereto and their respective heirs, executors, administrators or other legal
representatives and assigns, and shall be binding upon all transferees of LEG;
provided, however, that this Agreement and the irrevocable proxy provided under
Section 2 shall not apply as to any Shares sold, transferred or assigned to any
person who is not (i) an affiliate (as defined in the Securities Act) of LEG or
(ii) after giving
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effect to such sale, transfer or assignment, the beneficial owner (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of ten percent or more
of the Common Stock.
(d) Governing Law. This Agreement and the irrevocable proxy provided
under Section 2 shall be governed by, and interpreted and enforced in accordance
with, the laws of the Company's state of incorporation. LEG agrees to execute
any amendment or supplement to this Agreement or the irrevocable proxy provided
under Section 2 necessary to conform the terms of this Agreement to the laws of
any state to which the Company changes its state of incorporation.
(e) Severability. If any provision of this Agreement is declared void
by a court, governmental agency or other entity of competent jurisdiction, the
remaining provisions of this Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, LEG, Sharma and Xxxxxxxx have executed this
Agreement as of the date first above written.
LEG PARTNERS III SBIC, L.P.
By: Xxxxx XX-XX, LLC
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx, Manager
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
The Company hereby agrees to the last sentence in Section 5 of this Agreement.
TBM HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned, as holder of 500,000 shares of common stock, par value
$.001 per share (the "Common Stock"), of TBM Holdings, Inc., a Florida
corporation (the "Company"), hereby grants to Xxxxx Xxxxxx or, in the event of
his death or incapacity, Xxxxxxx X. Xxxxxxxx, or any substitute appointed by
such proxy to act in his place, an irrevocable proxy pursuant to the provisions
of Section 607.0722 of the Florida Business Corporation Act to vote, or to
execute and deliver written consents or otherwise act in respect of, such
500,000 shares of Common Stock and any other shares of Common Stock or capital
stock of the Company which may be issued to or acquired by it from time to time
in respect of such 500,000 shares of Common Stock, whether by exchange,
conversion of securities, stock split, dividend, combination of shares or any
similar capital adjustment, or through any corporate reorganization or
otherwise, so long as such shares remain subject to the Voting Agreement
referred to below (the "Shares"), in the same manner and in the same proportion
(for or against any proposition or not voted in respect of such proposition)
that all shares of Common Stock beneficially owned (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended) by Colt
Capital, LLC, Colt Services, Inc., TBM Capital II, LLC, Xxxxx Xxxxxx and Xxxxxxx
X. Xxxxxxxx are voted for or against such proposition or are not voted, in
accordance with Section 3 of the Voting Agreement referred to below, as fully,
to the same extent and with the same effect as the undersigned might or could do
under any applicable laws or regulations governing the rights and powers of
shareholders of a Florida corporation. Without limiting the generality of the
foregoing, this irrevocable proxy authorizes the proxyholder to vote or
otherwise act in accordance with the preceding sentence on all matters that may
be submitted for a vote to the shareholders of the Company at any meeting of the
shareholders of the Company, and any adjournment thereof, to the fullest extent
permitted under the Florida Business Corporation Act, as amended from time to
time, and with all powers the undersigned would possess as shareholder
thereunder.
The undersigned hereby affirms that this irrevocable proxy is given
pursuant to that certain Voting Agreement, dated as of March 13, 2000, among the
undersigned, Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxxxx (the "Voting Agreement"), and
as such is irrevocable and coupled with an interest. This proxy may be exercised
by the undersigned for the period beginning on the date hereof and shall remain
in full force and effect with respect to Shares until terminated in accordance
with the provisions of the Voting Agreement.
The undersigned hereby consents to and waives notice of the time and
place of any meeting of shareholders, and any adjournment thereof, and hereby
ratifies and confirms all that this proxy may do and cause to be done by virtue
hereof in accordance with the provisions hereof and of the Voting Agreement.
This proxy shall remain in full force and effect and shall be
enforceable against any
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transferee, assignee or donee of Shares that is (i) an affiliate (as defined in
the Securities Act of 1933 and the rules and regulations thereunder) of the
undersigned or (ii) after giving effect to such sale, transfer or assignment,
the beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended) of ten percent or more of the
Common Stock.
Dated this 13th day of March, 2000.
LEG Partners III SBIC, L.P.
By: Xxxxx XX-XX, LLC
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Xxxxxxxx X. Xxxxx, Manager
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