Exhibit 99.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") entered into on this 3/rd/ day of
February 2003, among XXXXXX CORPORATION, a Delaware corporation ("Target"), and
each of the stockholders of XXXXX XXXXX INTERNATIONAL, INC., a Florida
corporation ("Parent"), signatory hereto (each, a "Stockholder" and,
collectively, the "Stockholders"). Capitalized terms used and not specifically
defined herein have the respective meanings ascribed to such terms in the Merger
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Parent and Target, concurrently with the execution and delivery of
this Agreement, are entering into that certain Agreement and Plan of Merger of
even date herewith (the "Merger Agreement"), pursuant to which, upon the terms
and subject to the conditions set forth therein, a wholly owned subsidiary of
Parent will be merged with and into Target (the "Merger"), and Target will be
the surviving corporation in the Merger; and
WHEREAS, each Stockholder is the record and/or beneficial owner of the
number of outstanding shares of Parent Common Stock set forth opposite each such
Stockholder's name on Schedule A hereto (with respect to each Stockholder, such
Stockholder's "Existing Shares" and, together with all shares of Parent Common
Stock which are acquired by such Stockholders after the date hereof, whether
upon the exercise of warrants, options, conversion of convertible securities or
otherwise, such Stockholder's "Shares").
NOW, THEREFORE, in consideration of the execution of the Merger Agreement
by the parties thereto and the respective representations, warranties, covenants
and agreements set forth in this Agreement, and intending to be legally bound
hereby and thereby, the parties hereto agree as follows:
ARTICLE I VOTING
1.1 Agreement to Vote. Each Stockholder hereby agrees, severally and not
jointly, that it shall, and shall cause the holder of record on any applicable
record date to, at the Parent Stockholders Meeting or at any adjournment or
postponement thereof, (a) appear at such meeting or otherwise cause its Shares
to be counted as present thereat for purposes of establishing a quorum, and (b)
vote or consent (or cause to be voted or consented), in person or by proxy, all
of its Shares in favor of (i) the proposal to approve the issuance of Parent
Common Stock pursuant to and upon the terms and subject to the conditions set
forth in the Merger Agreement and (ii) any other matter submitted to a vote of
the holders of Parent Common Stock at the Parent Stockholder Meeting necessary
to consummate the Merger.
1.2 No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Target any direct or indirect ownership (or incidence of
ownership), whether beneficial or otherwise, of or with respect to any Shares
(or any interest therein).
1.3 No Inconsistent Agreements. Each Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
the Stockholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time
while this Agreement remains in effect, a proxy or power of attorney with
respect to the Shares, in either case, which is inconsistent with such
Stockholder' s obligations pursuant to this Agreement.
1.4 Limitations on Transfers. To the extent that any Stockholder shall
directly or indirectly 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 the Shares or any interest therein, it shall be a condition
thereof that prior to any such offer, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition (i) such Stockholder shall have
given notice thereof to Target (whose consent shall not be required) and (ii)
the proposed transferee shall execute and deliver to Target an appropriate
instrument reasonably satisfactory to Target whereby such transferee agrees to
observe and comply with this Agreement and with all obligations and restrictions
imposed on Stockholders hereby.
ARTICLE II REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder hereby, severally and not jointly, represents and warrants
to Target as follows:
2.1 Authorization; Validity of Agreement; Necessary Action. Such
Stockholder has full power and authority to execute and deliver this Agreement
and to perform such Stockholder's obligations hereunder. The execution, delivery
and performance by such Stockholder of this Agreement and the consummation by it
of the transactions contemplated hereby have been duly and validly authorized by
such Stockholder and no other actions or proceedings on the part of such
Stockholder are necessary to authorize the execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Stockholder, and,
assuming this Agreement constitutes a valid and binding obligation of Target,
constitutes a valid and binding obligation of such Stockholder, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium and similar laws relating to or
affecting creditors generally or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
If such Stockholder is married and any of such Stockholder's Shares constitute
community property under applicable laws, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid and binding
agreement of, such Stockholder's
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spouse. If this Agreement is being executed in a representative or fiduciary
capacity, the individual or entity signing this Agreement has the full power and
authority to enter into and perform this Agreement
2.2 Non-Contravention. The execution, delivery and performance by such
Stockholder of this Agreement do not and will not result in any breach or
violation of or be in conflict with or constitute a default under any term of
any agreement, judgment, injunction, order, decree, law, regulation or
arrangement to which such Stockholder is a party or by which such Stockholder
(or any of its assets) is bound, except for any such breach, violation, conflict
or default which, individually or in the aggregate, would not impair or affect
such Stockholder's ability to perform such Stockholder's obligations hereunder.
2.3 Shares. Such Stockholder's Existing Shares are, and all of its Shares
from the date hereof through and on the date of the Parent Stockholders Meeting
will be, owned beneficially by such Stockholder. As of the date hereof, such
Stockholder's Existing Shares constitute all of the shares of Parent Common
Stock owned of record or beneficially by such Stockholder. Such Stockholder has
or will have the voting power, power of disposition, power to issue instructions
with respect to the matter set forth in Section 1.1 hereof, and power to agree
to all of the matters set forth in this Agreement, in each case with respect to
all of such Stockholder's Existing Shares and with respect to all of such
Stockholder's Shares on the date of the Parent Stockholder Meeting, with no
limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
ARTICLE III REPRESENTATIONS AND WARRANTIES OF TARGET
Target represents and warrants to each Stockholder as follows:
3.1 Corporate Authorization. The execution, delivery and performance by
Target of the transactions contemplated hereby are within the corporate powers
of Target and have been duly authorized by all necessary corporate action.
3.2 Binding Obligation. This Agreement has been duly executed and
delivered by Target, and, assuming this Agreement constitutes a valid and
binding obligation of each Stockholder, constitutes a valid and binding
obligation of Target, enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium and similar laws relating to or affecting creditors generally or by
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.3 Non-Contravention. The execution, delivery and performance by Target
of this Agreement do not and will not result in any breach or violation of or be
in conflict with or constitute a default under any term of any agreement,
judgment, injunction, order, decree, law, regulation or arrangement to which
Target is a party or by which Target (or any of its assets) is bound, except for
any such breach, violation, conflict or default
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which, individually or in the aggregate, would not impair or affect Target's
ability to perform its obligations hereunder.
ARTICLE IV GENERAL PROVISIONS
4.1 Termination. This Agreement shall terminate and no party shall have
any rights or duties hereunder upon the earlier to occur of (a) the Effective
Time or (b) termination of the Merger Agreement pursuant to Section 7.1 thereof.
Nothing in this Section 4.1 shall relieve or otherwise limit any party of
liability for breach of this Agreement.
4.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered
personally, or by telecopy or facsimile, upon confirmation of receipt, or (b) on
the first Business Day following the date of dispatch if delivered by a
recognized next-day courier service. All notices hereunder shall be delivered as
set forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
if to TARGET to:
Xxxxxx Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chief Executive Officer
with a copy (which shall not constitute notice hereunder) to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxxx@xxxxxxxxxxxx.xxx
Attention: Xxxxx Xxxxxxx, Esq.
If to the Stockholders party hereto:
to the address set forth next to the name of such
Stockholders on the signature pages hereof
with a copy (which shall not constitute notice hereunder) to:
Xxxxxxxxx Xxxxxxx, LLP
The MetLife Building
000 Xxxx Xxxxxx
0
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
e-mail: xxxxxxxx@xxxxx.xxx
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
4.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart. Signatures transmitted by facsimile
or other comparable means shall be deemed an original.
4.4 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida (without giving effect to
choice of law principles thereof).
4.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
4.6 Assignment. Except as expressly provided in Section 1.4 hereof,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto, in whole or in part (whether by
operation of law or otherwise), without the prior written consent of all of the
parties hereto. Any assignment in violation of the preceding sentence shall be
void. Subject to the preceding two sentences, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns (including, in the case of an individual, any
executors, administrators, estates or legal representatives of such individual).
4.7 Consent to Jurisdiction. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any Federal court located in the
State of Florida or any Florida state court in the event any dispute arises out
of this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
Federal court sitting in the State of Florida or a Florida state court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or any of
the transactions
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contemplated by this Agreement in any Federal court located in the State of
Florida or any Florida state court, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
4.8 Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
4.9 Amendments. This Agreement may not be modified or amended, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
4.10 Certain Definitions. For purposes of this Agreement, (i) the term
"beneficial ownership" (or any similar term) shall have the meaning set forth in
Rule 13d-3 under the Securities Exchange Act of 1934, and (ii) the term "Merger
Agreement" shall include the Merger Agreement as amended from time to time.
4.11 Action in Stockholder Capacity Only. Each representation, warranty,
covenant and agreement made by a Stockholder hereunder is made in such
Stockholder's capacity as a stockholder only, not as an officer or director of
Parent. Nothing herein shall limit or affect any Stockholder's ability to take
any action in his or her capacity as an officer or director of Parent.
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IN WITNESS WHEREOF, each of the parties hereto has signed this Agreement or
caused this Agreement to be signed by its respective officers thereunto duly
authorized, all as of the date first written above.
Target:
XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive
Officer
Stockholders:
/s/Xxxxxx Xxxxxxxxxxx
---------------------------------------
XXXXXX XXXXXXXXXXX
/s/Xxxxx Xxxxxxxxxxx
---------------------------------------
XXXXX XXXXXXXXXXX
GFX, INC., a Florida corporation
By: /s/Xxxxxx Xxxxxxxxxxx
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XXXXXX XXXXXXXXXXX, President
THE XXXXX XXXXXXXXXXX FAMILY
PARTNERSHIP LTD., a Florida limited
partnership
By: XXXXX XXXXXXXXXXX
INVESTMENT CORP., a Florida
corporation, General Partner
By: /s/Xxxxx Xxxxxxxxxxx
------------------------------------
XXXXX XXXXXXXXXXX, President
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Schedule A
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Address Stockholder
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XXXXXX XXXXXXXXXXX
Number of shares of
Parent Common Stock: 1,176,325
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XXXXX XXXXXXXXXXX
Number of shares of
Parent Common Stock: 1,123,288
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GFX, INC.
Number of shares of
Parent Common Stock: 361,525
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THE XXXXX XXXXXXXXXXX FAMILY
PARTNERSHIP LTD.
Number of shares of
Parent Common Stock: 83,690
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