VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of December 5, 1997, by
and among Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. ("Xxxxxx"), X. Xxxx
Price Recovery Fund II, L.P. ("TRP"), Strategic Associates, L.P. ("Strategic"),
and Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx")(Xxxxxx, TRP, Strategic and Xxxxxxxx are
sometimes collectively referred to herein as "Investors"), and Xxx Xxxxx Xxxxxxx
("Xxxxxxx") and Xxxxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx")(Xxxxxxx and Xxxxxxxx are
sometimes collectively referred to herein as the "Executives").
RECITALS
A. The Investors own, in the aggregate, 46,000 shares of Series A Preferred
Stock and 25,000 shares of Series B Preferred Stock of Xxx Xxxxxx, Inc., a
Washington corporation (the "Company") constituting a majority of the votes
entitled to be cast in any election of the shareholders of the Company.
X. Xxxxxxx owns 96,500 shares of the Company's Common Stock constituting
96,500 votes entitled to be cast in any election of the shareholders of the
Company, and Xxxxxxxx does not currently own any shares of the Company's Common
Stock.
C. Concurrent with the execution of this Agreement, Xxxxxxx and Xxxxxxxx
are each entering into a separate Employment Agreement with the Company,
pursuant to which each of Xxxxxxx and Xxxxxxxx are to be elected to the Board of
Directors of the Company.
D. The Investors and the Executives desire to enter into an agreement
pursuant to which they agree to exercise their right to cast votes in any
election of the shareholders of the Company (their "Votes") in the manner and
for the purpose specified herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Exercise of Votes. The Investors and the Executives shall exercise all
Votes as to which they have voting power, pursuant to the provisions of this
Agreement.
2. Election of Directors. In elections of directors of the Company, the
Investors and the Executives shall vote for the following candidates, which the
Investors and the Executives shall take all necessary steps to nominate:
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(a) Xxxxxxx;
(b) Xxxxxxxx; and
(c) Five candidates designated by the Investors.
3. Termination. With respect to Xxxxxxx, this Agreement shall terminate in
its entirety upon the expiration or earlier termination of that certain
Employment Agreement between Xxxxxxx and the Company dated December 5, 1997.
With respect to Xxxxxxxx, this Agreement shall terminate in its entirety upon
the expiration or earlier termination of that certain Employment Agreement
between Xxxxxxxx and the Company dated December 5, 1997.
4. Miscellaneous.
4.1 No Conflicts. The parties hereto represent that they are not
parties to and do not know of any other agreements that conflict with any of the
provisions of this Agreement.
4.2 Successors. The provisions of this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the parties
hereto, including any successors in interest to or transferees or assignees of
any voting securities, the voting of which is covered by this Agreement.
4.3 Counterparts. This Agreement may be executed in more than one
counterpart, each of which shall constitute an original of this Agreement but
all of which, when taken together, shall constitute one and the same instrument.
4.4 Modification. This Agreement shall not be subject to modification
or amendment in any respect, except by an instrument in writing signed by all of
the parties hereto.
4.5 Applicable Law. This Agreement shall for all purposes be governed
by and construed in accordance with the laws of the State of Washington, without
giving effect to principles of conflict of laws.
4.6 Notices. All notices, demands or other communications desired or
required to be given by any party to any other party hereto shall be in writing
and shall be delivered (a) in person or (b) by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows, or such other
addresses and to the attention of such other individuals as any Investor or
either Executive shall have designated in writing to the other parties:
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If to the Investors: c/x Xxxxxx, Xxxxxxx & Company, LLC
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to: X. Xxxx Price Associates
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
If to Xxxxxxx: c/o Xxx Xxxxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Xxxxxxxx c/o Xxx Xxxxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
4.7 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provisions were so excluded and shall be enforceable in accordance with its
terms.
4.8 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements with respect to the subject
matter hereof.
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VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day first above written.
XXXXXX, XXXXXXX STRATEGIC PARTNERS
FUND, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P., its
general partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx, a general partner
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx & Company, LLC, its
general partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxx, a managing member
X. XXXX PRICE RECOVERY FUND II, L.P.
By: X. Xxxx Price Recovery Fund II Associates,
LLC, its general partner
By: /s/ XXX X. XXXXXX
----------------------------------------------
Xxx X. Xxxxxx, its managing director
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------------------
XXXXXXX X. XXXXXXXX
/s/ XXX XXXXX XXXXXXX
-------------------------------------------------
XXX XXXXX XXXXXXX
/s/ XXXXXXX X. XXXXXXXX, XX.
-------------------------------------------------
XXXXXXX X. XXXXXXXX, XX.
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