VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made and entered into as of the
13th day of March, 2000, by and between Xxxxx X. Xxxxx ("Xxxxx") and Xxxxxxx X.
Xxxxx ("Xxxxx" and collectively with Xxxxx, the "Shareholders"), each of whom is
a shareholder of Empire Financial Holding Company, a Florida corporation (the
"Company").
Recitals
X. Xxxxx and Xxxxx each is the owner of record of 4,000,000 shares of
voting common stock, par value $.01 per share, of the Company ("Common Stock").
B. This Agreement is made and entered into pursuant to Section 607.0731
of the Florida Business Corporation Act.
C. The Shareholders desire to establish certain rights and obligations
regarding their beneficial ownership of Common Stock and are willing to enter
into this Agreement to govern all shares of Common Stock presently beneficially
owned by any one of the Shareholders and any and all shares of Common Stock of
the Company acquired by them hereafter, whether by gift, devise, purchase,
exercise of a warrant or option, receipt of stock dividend or otherwise (all
shares of Common Stock presently beneficially owned or acquired hereafter by
Shareholders are hereinafter sometimes referred to in the aggregate as the
"Shares"). As used in this Agreement, a Shareholder shall be a beneficial owner
of all Shares in which the Shareholder, directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise (other than
pursuant to the terms of this Agreement) has or shares (1) voting power which
includes the power to vote, or direct the voting of, such Shares; and/or (2)
investment power which includes the power to dispose, or to direct the
disposition of such Shares.
D. The Shareholders deem it to be in their best interests to enter into
this Agreement.
Agreement
NOW, THEREFORE, in consideration of the recitals set forth above and
the mutual covenants and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
hereby, each of the parties hereto, intending legally to be bound, hereby agrees
as follows:
1. Incorporation of Recitals. The parties to this Agreement hereby
agree and acknowledge that all of the recitals set forth above are true,
complete and correct in every respect and hereby incorporate said recitals into
this Agreement by this reference.
2. Representations of Shareholder. The Shareholders hereby severally
represent and warrant to each other that, each Shareholder: (a) owns and has the
right to vote the number of Shares set forth above, (b) has full power to enter
into this Agreement and has not, prior to the date of this Agreement, executed
or delivered any proxy or entered into any other voting
agreement or similar arrangement with respect to the Shares and (c) will not
take any action inconsistent with the purposes and provisions of this Agreement.
3. Scope of Agreement. This Agreement shall govern the voting of the
Shares by the Shareholders with respect to any and all matters voted upon by
shareholders of the Company, whether at a meeting or pursuant to written consent
or otherwise, including, but not limited to:
(i) any change in the authorized capital stock or capital
structure of the Company, including the creation of any additional
class of shares;
(ii) any amendment of the Company's Articles of Incorporation;
(iii) any merger of the Company;
(iv) the election of any director to the Company's Board of
Directors;
(v) any change in the number of directors fixed to serve on
the Company's Board of Directors; and
(vi) the adoption of any stock option plan.
Unless terminated as hereinafter provided, this Agreement shall remain in effect
without regard to any action taken by the shareholders of the Company.
4. Changes in Common Stock; Dispositions. In the event that subsequent
to the date of this Agreement any shares of Common Stock or other securities of
the Company or another corporation are issued on, or in exchange for, any of the
Shares by reason of any stock dividend, stock split, consolidation of shares,
reclassification, exchange, merger or consolidation or otherwise involving the
Company, such shares of Common Stock or other securities shall be deemed to be
Shares for purposes of this Agreement. Any Shares that are no longer
beneficially owned by a Shareholder as a result of a sale, disposition or other
transfer shall not be deemed to be Shares for purposes of this Agreement.
5. Voting of Shares. The Shareholders agree and covenant that at any
meeting of shareholders of the Company and/or in connection with any corporate
action by the shareholders of the Company pursuant to written consent or
otherwise, all of the Shares shall be voted with respect to any matter presented
to the shareholders of the Company in the manner and to the effect unanimously
determined by the Shareholders, in each of his sole and absolute discretion. In
the event that the Shareholders are not able to make such unanimous
determination with respect to any matter to be presented to the shareholders of
the Company, then the Shareholders agree that the Shares shall not be voted by
the Shareholders with respect to such matter, but shall be voted by the
Shareholders with respect to such matter in the manner and to the effect of
placing that matter as the last subject to be presented to the shareholders of
the Company for discussion during such shareholders meeting. In the event that
the Shareholders are not able to make a unanimous determination with respect to
such matter during the shareholder meeting,
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then the Shareholders shall vote their Shares in favor of the adjournment of the
meeting to a future date mutually acceptable to the Shareholders. Accordingly,
during the term of this Agreement, neither Shareholder shall vote or attempt to
vote any Shares or otherwise exercise or attempt to exercise any voting or other
approval rights of any Shares without the concurrence of all of the other
Shareholders, and any such prohibited exercise by such Shareholder of voting or
other approval rights shall be void and of no force or effect. In addition, each
Shareholder agrees that all Shares owned by such Shareholder shall be present,
in person or by proxy, at any meeting of shareholders of the Company.
6. Termination. This Agreement shall terminate only upon the earlier to
occur of the occurrence of any one of the following events:
(A) either of the Shareholders becomes the beneficial owner of
less than ten percent of the aggregate voting rights of all of the then issued
and outstanding capital stock of the Company; or
(B) the death of either Shareholder or incapacity of either
Shareholder to act hereunder; or
(C) the termination of this Agreement by written agreement of
the Shareholders, which written agreement must be signed by each of the
Shareholders.
7. Legend. The Shareholders will imprint all certificates for the
Shares with notice of this Agreement.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to rules
regarding choice of law. Any proceedings of whatever nature brought to enforce
the provisions of this Agreement shall be brought and heard in Seminole County,
Florida, and the parties hereto consent to personal jurisdiction and venue in
such forum.
9. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors, assigns and transferees.
10. Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto, notwithstanding that all the parties are not signatories to
the original or same counterpart.
11. Amendment or Modification. This Agreement may be altered, modified
or amended only by the unanimous consent, in writing, of the parties subject
hereto, either now or hereafter. Any such modification must be signed by each
party to this Agreement and each signature must be acknowledged and notarized in
order for the modification to take effect.
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12. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, both oral and
written, among the parties hereto with respect to such subject matter.
13. Enforceability. The Shareholders expressly agree that this
Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against each of the parties hereto. If
any provision of this Agreement shall be declared void or unenforceable by any
court or administrative board of competent jurisdiction, such provision shall be
deemed to have been severed from the remainder of this Agreement and this
Agreement shall continue in all respects to be valid and enforceable and shall
be construed so as to best give effect to the purposes and intents hereof.
14. References. Whenever required by the context, and is used in this
Agreement, the singular number shall include the plural and pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identification the person may require.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
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