Exhibit 2.17
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated March 31, 1999 (the
"Effective Date"), is by and among CenterPoint Advisors, Inc., a Delaware
corporation ("CenterPoint"), and the individuals and entities listed on the
signature pages hereof (each, a "Stockholder" and collectively, the
"Stockholders").
PREAMBLE
A. Concurrently herewith, CenterPoint, Xxxxxx, Xxxx & Xxxxxx, P.C., a New
York professional corporation (together with its permitted successors and
assigns, the "Company"), Xxxxxx, Xxxx & Xxxxxx, P.C., a Massachusetts
professional corporation, UKW Management LLC, a Delaware limited liability
company ("Management"), and UKW Mergersub Inc., a Delaware corporation and a
direct wholly-owned subsidiary of CenterPoint ("Mergersub"), 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 Stockholder owns shares, par value $0.01 per share, of common
stock of the Company (the "Shares" or "Company Common Stock") in the amounts set
forth opposite such Stockholder's name and signature on the signature pages
hereof.
C. In anticipation of the transactions contemplated by the Merger
Agreement, Management will acquire all of the issued and outstanding Company
Common Stock in exchange (the "Exchange") for issuing the Stockholders
proportionate membership interests in Management (the "Interests").
D. As an inducement and a condition to entering into the Merger Agreement,
CenterPoint has required that the Stockholders agree, and the Stockholders 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 Stockholders agree as follows:
1. Provisions Concerning Company Common Stock and the Interests. Each
Stockholder 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 Interests, however called, or in connection with any written consent of
the holders of Company Common Stock or the Interests, such Stockholder shall
vote (or cause to be voted) the Shares or Interests held of record or
Beneficially Owned (as defined below) by such Stockholder, whether heretofore
owned or hereafter acquired: (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 Management, the Company, any
Company Subsidiary or any Stockholder under the Merger Agreement; and (iii)
except as otherwise agreed to in writing in advance by CenterPoint, against the
following actions (other than the Merger and the agreements and transactions
contemplated by the Merger Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving Management, the Company or any Company Subsidiary; (B) a sale, lease
or transfer of a material amount of assets of Management, the Company or any
Company Subsidiary, or a reorganization, recapitalization, dissolution or
liquidation of Management, the Company or any Company Subsidiary; (C) (1) any
change in a majority of the individuals who constitute the operating committee
or the board of directors of each of Management, the Company or any Company
Subsidiary; (2) any change in the present capitalization of Management, the
Company or any Company Subsidiary or any amendment of Organizational Documents
of Management, the Company or any Company Subsidiary; (3) any other material
change in Holding's, the Company's or any Company Subsidiary's corporate
structure or business; or (4) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or
materially and adversely affect the Merger and the transactions contemplated by
this Agreement and the Merger Agreement. Such Stockholder 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.
2. Other Covenants, Representations and Warranties. Each Stockholder
hereby represents and warrants to CenterPoint as follows:
(a) Ownership of Shares and Interests. Such Stockholder is the record
and Beneficial Owner of the number of Shares and Interests as set forth
opposite such Stockholder's name and signature on the signature pages
hereof. Such Shares and Interests, together with the number of Shares and
Interests set forth opposite each other Stockholder's name and signature on
the signature pages hereof, represent the requisite number of shares and
percentage of membership interests required to approve the Merger, the
Merger Agreement, the transactions contemplated by the Merger Agreement and
any
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actions required in furtherance hereof and thereof. On the Effective
Date, the Shares set forth opposite such Stockholder's name and signature
on the signature pages hereof constitute all of the Shares owned of record
or Beneficially Owned by such Stockholder or as to which such Stockholder
has voting power by proxy, voting agreement, voting trust or other similar
instrument and the Interests set forth opposite such Stockholder's name and
signature on the signature pages hereof constitute all of the Interests to
be Beneficially Owned by such Stockholder upon completion of the Exchange.
Such Stockholder 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
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Shares and
Interests as set forth opposite such Stockholder's name and signature on
the signature pages hereof, with no limitations, qualifications or
restrictions on such rights.
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not violate any
other agreement to which such Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement, voting trust,
trust or similar agreement. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder
in accordance with its terms. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which such
Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby. If such Stockholder is married and such
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such Stockholder'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 Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby
and (B) none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated by this Agreement or compliance by such Stockholder 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 Stockholder is a
party or by which such Stockholder or any of such Stockholder's properties
or assets may be bound, or (2) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder
or any
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of such Stockholder's properties or assets (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 Stockholders identified as an
"accredited investor" on the signature pages hereof, represents and
warrants to Mergersub and CenterPoint that such Stockholder (i) is an
"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 experience in financial and business matters that such
Stockholder 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
Stockholder 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 Stockholder's Shares or
Interests or any interest therein; (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any Shares or
Interests into a voting trust or enter into a voting agreement with respect
to any Shares or Interests; or (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Stockholder
from performing such Stockholder's obligations under this Agreement.
(f) Reliance by CenterPoint. Such Stockholder understands and
acknowledges that CenterPoint is entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at Cornerstone's request and
without further consideration, each Stockholder 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. Stop Transfer. Each Stockholder agrees with, and covenants to,
CenterPoint that such Stockholder shall not request that the Company or
Management register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares or
Interests, unless such transfer is made in compliance with this Agreement.
Without limiting the covenants in Section 1, in the event of a stock dividend or
distribution, or any
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change in Company Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or other equity interests or
the like, the terms "Shares" and "Interests" shall be deemed to refer to and
include the Shares and Interests, as applicable, as well as all such stock
dividends and distributions and any shares or other equity interests into which
or for which any or all of the Shares or Interests may be changed or exchanged.
5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares and Interests shall
terminate upon the earlier of (a) the termination of the Merger Agreement in
accordance with its terms or (b) the Effective Time.
6. Miscellaneous.
(a) Entire Agreement. This Agreement, the Merger Agreement and the
other agreements contemplated herein or 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.
(b) Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and
Interests and shall be binding upon any person or entity to which legal or
Beneficial Ownership of any such Shares or Interests shall pass, whether by
operation of law or otherwise, including, without limitation, such
Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any such transfer of Shares or Interests, 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, provided that CenterPoint may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of CenterPoint, but no such assignment shall relieve CenterPoint
of its obligations hereunder if such assignee does not perform such
obligations.
(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 Stockholders, except upon the execution and
delivery of a written agreement executed by the parties hereto; provided,
--------
that, any stockholder of the Company or member of Management, 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 shall be treated as a "Stockholder" 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
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(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 Stockholder: At the address set forth
opposite such Stockholder's
name on the signature pages hereof
with a copy to:
Cooper, Erving, Xxxxxx, Xxxxx & Xxxxxx, LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxx Xxxxxx, Esq.
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
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
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
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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 New York, 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.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(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 Stockholders have caused this
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Agreement to be duly executed as of the Effective Date.
CENTERPOINT ADVISORS, INC.
By: /s/Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
NUMBER OR NUMBER OF
PERCENTAGE BENEFICIALLY
"STOCKHOLDERS" "ACCREDITED" ADDRESS OF INTERESTS OWNED
(Yes/No) TO BE OWNED SHARES
/s/Xxxxxxx Xxxxxxxx 00 Xxxxxx Xxxxxx 7.51%
--------------------- YES Xxxxxxx, XX 00000 1,415
Xxxxxxx Xxxxxxxx
/s/Xxxxxx Xxxxxxx 17069 Xxxxxxx St. 4.97%
--------------------- YES Xxxxxxxxxx, XX 00000 000
Xxxxxx Xxxxxxx
/s/Xxxx Xxxxxxx 00 Xxxxx Xxxx 6.9%
---------------------- YES Glens Falls, NY 1,300
Xxxx Xxxxxxx 12801
/s/Xxxx Xxxxxxxx 00 Xxxxxx Xxxx 7.78%
---------------------- YES Xxxxxxxx, XX 00000 1,465
Xxxx Xxxxxxxx
/s/Xxxxxx Xxxxxxx 00 Xxxxx Xxxx 7.97%
---------------------- YES Loudonville, NY 1,500
Xxxxxx Xxxxxxx 12211
/s/Xxxxxxx Xxxx 000 Xxxxxxxxxx Xxxxx 5.82%
---------------------- YES Guilderland, NY 1,095
Xxxxxxx Xxxx 12084
/s/Xxxxxxx Xxxxxx 00 Xxxxxxxxx Xxxxx 7.51%
----------------------- YES Slingerlands, NY 1,415
Xxxxxxx Xxxxxx 12159
NUMBER OR NUMBER OF
PERCENTAGE BENEFICIALLY
"STOCKHOLDERS" "ACCREDITED" ADDRESS OF INTERESTS OWNED
(Yes/No) TO BE OWNED SHARES
/s/Xxxxxx Xxxxxxx 0 Xxxxx Xxxxxxx Xx. 4.1144%
----------------------- NO Ballston Lake, NY 800
Xxxxxx Xxxxxxx 12019
/s/Xxxxxxx 00 Xxxxxxxxxx Xxxx 0.0000%
Xxxxxxxxxx YES Loudonville, NY 1,300
----------------------- 12211
Xxxxxxx Xxxxxxxxxx
/s/Xxxx Xxxxxxxx 00 Xxxxxxx Xxxxx 7.1147%
----------------------- YES Xxxxxxx, XX 00000 1,400
Xxxx Xxxxxxxx
