Exhibit 99.1
VOTING AGREEMENT
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This Voting Agreement (this "Agreement") is made as of May 30, 2000 by and
among Cypress Financial Services, Inc., a Nevada corporation (the "Company"),
FBR Financial Fund II, L.P., a Delaware limited partnership ("FBR"), and Pacific
Life Insurance Company, a _________ corporation ("Pacific Life").
RECITALS
A. FBR desires to purchase from the Company 15,000,000 shares (the
"Shares") of the Company's common stock, par value $.001 per share (the "Common
Stock"), and the Company desires to sell such Shares to FBR;
B. Pacific Life currently owns shares of the Company's Common Stock;
C. The parties desire that Pacific Life be given the right to designate
one (1) nominee to serve on the Board of Directors (the "Board") of the Company
(the "Pacific Life Director");
D. The parties desire that FBR be given the right to designate the
remaining nominees (the "Remaining Directors") to serve on the Board in the
manner described below; and
E. FBR, Pacific Life and the Company acknowledge that they are entering
into this Agreement in consideration of the purchase of the Shares by FBR,
pursuant to that certain Common Stock Purchase Agreement dated as of the date
hereof.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Size of Board. During the term of this Agreement and so long as (a)
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FBR and its affiliates ("Affiliates") (as defined in Rule 405 promulgated under
the Securities Act of 1933, as amended) hold at least Seven Million Five Hundred
Thousand (7,500,000) shares of the Common Stock (on a fully diluted, as-
converted basis and subject to adjustment for any stock split, dividend,
combination or other recapitalization) and (b) Pacific Life and its Affiliates
hold at least One Million One Hundred Fifty Thousand (1,150,000) shares of the
Common Stock (on a fully diluted, as-converted basis and subject to adjustment
for any stock split, dividend, combination or other recapitalization), each of
FBR and Pacific Life covenant and agree that it will vote its shares of Common
Stock so as to provide, and the Company will use its best efforts to cause, the
Board to consist of at least three (3) members.
2. Pacific Life Nominee. During the term of this Agreement and so long
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as Pacific Life and its Affiliates hold at least One Million One Hundred Fifty
Thousand (1,150,000) shares of the Common Stock (on a fully diluted, as-
converted basis and subject to adjustment for any stock split, dividend,
combination or other recapitalization), each of FBR and Pacific Life agree to
vote all of its shares of Common Stock now or hereafter owned by it as follows:
(a) (i) to elect the nominee of Pacific Life ("Pacific Life Nominee") as
the Pacific Life Director and (ii) if requested by Pacific Life, to remove the
incumbent Pacific Life Director and elect a new Pacific Life Nominee as the
Pacific Life Director or to fill a vacancy created by the death of such Pacific
Life Director or otherwise.
(b) Pacific Life shall designate the Pacific Life Nominee in writing to
the Company prior to each election of Directors of the Company. The Company
shall promptly notify FBR of the nomination of the Pacific Life Nominee by
Pacific Life. Any vacancy occurring because of the death, resignation, removal
or disqualification of the Pacific Life Nominee shall be filled according to
this Section 2.
3. Remaining Directors. During the term of this Agreement and so long
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as FBR and its Affiliates hold at least Seven Million Five Hundred Thousand
(7,500,000) shares of the Common Stock (on a fully diluted, as-converted basis
and subject to adjustment for any stock split, dividend, combination or other
recapitalization), each of FBR and Pacific Life agrees as follows:
(a) FBR shall have the right to nominate all other directors of the Board;
provided that FBR will give Pacific Life the opportunity to discuss any
questions or concerns Pacific Life may have in respect of any FBR nominee for
seats one (1) through four (4) of the Board.
(b) Pacific Life agree to vote all of its shares of Common Stock now or
hereafter owned by it to elect the nominee of FBR for one of Board seats one (1)
through four (4) (the "FBR Nominee") and (ii) if requested by FBR, to remove the
incumbent FBR director and elect a new FBR Nominee as the a director or to fill
a vacancy created by the death of such FBR director or otherwise.
(c) FBR shall designate its director nominees in writing to the Company
prior to each election of directors of the Company. The Company shall promptly
notify Pacific Life of the nominations of the directors by FBR. Any vacancy
occurring because of the death, resignation, removal or disqualification of any
director other than the Pacific Life Director shall be filled according to this
Section 3.
4. Directors upon Closing. Upon the consummation of the closing of the
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sale of the Shares, Xxxxx Xxxxx, Xxxxxx X. Xxxxxxx and Xxxxxx X. XxXxxx Xx.
shall fill three (3) of the five (5) Board seats and the remaining two (2) seats
shall be vacant.
5. Successors in Interest. The rights of FBR and Pacific Life under
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Sections 1 through 4 above are not assignable other than to one of their
respective Affiliates; however, the provisions of this Agreement shall be
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binding upon the successors in interest to any of the shares of Common Stock.
The Company shall not permit the transfer of any shares of the Common Shares on
its books or issue new certificates representing any shares of such securities
unless and until the person(s) to whom such shares are to be transferred shall
have executed a written agreement, substantially in the form of this Agreement,
pursuant to which such person becomes a party to this Agreement, and agrees to
be bound by all the provisions hereof as if such person was a party hereunder.
6. Legend. Each certificate representing any of the shares of Common
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Stock held by FBR or Pacific Life shall bear a legend reading as follows:
"The shares evidenced hereby are subject to the terms of a Voting
Agreement (a copy of which may be obtained without charge from the
issuer), and by accepting any interest in such shares the person
accepting
such interest shall be deemed to agree to and shall become bound by
all the provisions of such Voting Agreement."
7. Voting Agreement; Proxy to Vote Shares. This Agreement is intended to
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be a "voting agreement" for purposes of Section 706 of the California
Corporations Code. Without limitation, if either FBR or Pacific Life shall fail
to vote their shares of Common Stock so as to achieve the structure of the Board
and/or representation on the Board as set forth in this Agreement, such party
shall be deemed immediately upon the existence of such a breach to have granted
to a designee of the other party a proxy on the shares then held by such
defaulting party as shall be necessary to obtain from such defaulting party the
minimum requisite voting power to ensure such appropriate structure of the Board
and/or such representation on the Board. Each of parties acknowledges that each
proxy granted hereby, including successive proxies if need be, is given to
secure the performance of a duty and shall be irrevocable until the duty is
performed.
8. Termination. This Agreement shall terminate on the tenth (10th)
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anniversary hereof.
9. Amendments and Waivers. Any term hereof may be amended and the
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observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company, FBR and Pacific Life. Any amendment or waiver so
effected shall be binding upon the Company, FBR, Pacific Life and their assigns
subject to the terms of this Agreement, whether or not such party, assignee, or
other stockholder entered into or approved such amendment or waiver.
10. Stock Splits, Stock Dividends, etc. In the event of any stock split,
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stock dividend, recapitalization, reorganization, or the like, any securities
issued with respect to the Common Stock held by FBR or Pacific Life shall become
subject to this Agreement and shall be endorsed with the legend set forth in
Section 6 hereof.
11. Enforceability/Severability. The parties hereto agree that each
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provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of this Agreement
shall nevertheless be held to be prohibited by or invalid under applicable law,
such provision shall be effective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement, so as to make effective and enforceable
the intent of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of California as applied to contracts among California
residents entered into and to be performed entirely within California.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Notices. All notices, requests and other communications to any party
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hereunder shall be in writing, shall refer specifically to this Agreement and
shall be personally delivered or sent by facsimile transmission, overnight
delivery with a nationally recognized overnight delivery service or by
registered or certified mail, return receipt requested, postage prepaid, in
each case to the respective address specified on the signature page hereto. Any
notice or communication given in conformity with this Section 14 shall be deemed
to be effective when received by the addressee, if delivered by hand or
facsimile transmission, one (1) business day after deposit with a nationally
recognized overnight delivery service and three (3) days after mailing by first
class U.S. Mail.
15. Equitable Remedies. The Company, FBR and Pacific Life acknowledge and
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agree that the legal remedies available to the Company, FBR and Pacific Life in
the event any party violates the covenants and agreements made in this Agreement
would be inadequate and that the Company, FBR and Pacific Life shall be
entitled, without posting any bond or other security, to temporary, preliminary
and permanent injunctive relief, specific performance and other equitable
remedies in the event of such a violation, in addition to any other remedies
which the Company, FBR or Pacific Life may have at law or in equity.
16. Further Assurances. Each of the parties hereto shall execute and
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deliver all additional documents and instruments and shall do any and all acts
and things reasonably requested in connection with the performance of the
obligations undertaken in this Agreement and/or otherwise to effectuate in good
faith the intent of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year hereinabove first written.
THE COMPANY:
CYPRESS FINANCIAL SERVICES, INC.
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
Address: 0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
FBR FINANCIAL FUND II, L.P.
By: FBR Financial Fund Management, L.L.C.,
Title: General Partner
By: Friedman, Billings, Xxxxxx
Investment Management, Inc.
Title: Managing Member
By:____________________________
Name:__________________________
Title: ________________________
Address: 0000 00/xx/ Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
PACIFIC LIFE INSURANCE COMPANY
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Address: _____________________________________
_____________________________________
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