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EXHIBIT 99.3
VOTING AGREEMENT AND PROXY
This VOTING AGREEMENT, dated as of December 9, 1998 (this
"AGREEMENT"), by and between the parties listed on Appendix A hereto
(collectively, the "STOCKHOLDERS") and FLORAFAX INTERNATIONAL, INC., a Delaware
corporation ("RED XXXXXX").
WHEREAS, Red Xxxxxx, Xxxxxx Xxxxxxx, Inc., a Delaware
corporation ("GSI"), and Red Xxxxxx Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of Red Xxxxxx, propose to enter into an Agreement
and Plan of Merger (as amended from time to time, the "MERGER AGREEMENT"),
pursuant to which Merger Sub is to be merged with and into GSI (the "MERGER"),
with GSI continuing as the surviving corporation and a wholly-owned subsidiary
of Red Xxxxxx;
WHEREAS, as of the date hereof, the Stockholders own
11,085,061 shares of GSI common stock, par value $.01 per share (the "GSI COMMON
STOCK"), which represent in the aggregate approximately 59.8% of the total
issued and outstanding GSI Common Stock; and
WHEREAS, as a condition to the willingness of Red Xxxxxx to
enter into the Merger Agreement, Red Xxxxxx has required that the Stockholders
agree, and in order to induce Red Xxxxxx to enter into the Merger Agreement, the
Stockholders have agreed, to enter into this Agreement with respect to all the
shares of GSI Common Stock now owned and which may hereafter be acquired by the
Stockholders (the "SHARES") and any other securities, if any, which the
Stockholders are entitled to vote at any meeting of stockholders of GSI (the
"OTHER SECURITIES").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
PROXY OF THE STOCKHOLDERS
SECTION 1.01. VOTING AGREEMENT. Each Stockholder hereby agrees
that during the time this Agreement is in effect, at any meeting of the
stockholders of GSI, however called, and in any action by consent of the
stockholders of GSI, each of the Stockholders shall vote the Shares and the
Other Securities: (a) in favor of the Merger and for the approval and adoption
of the Merger Agreement and any of the transactions contemplated by the Merger
Agreement; and (b) against any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of GSI under the Merger Agreement or that could result
in any of the conditions to GSI's obligations under the Merger Agreement not
being fulfilled. Each Stockholder acknowledges receipt and review of a copy of
the Merger Agreement.
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SECTION 1.02. IRREVOCABLE PROXY. Each Stockholder hereby
irrevocably appoints Red Xxxxxx, until termination of the Merger Agreement, as
his or its attorney and proxy pursuant to the provisions of Section 212(c) of
the General Corporation Law of the State of Delaware, with full power of
substitution, to vote and otherwise act (by written consent or otherwise) with
respect to the Shares and the Other Securities, which such Stockholder is
entitled to vote at any meeting of stockholders of GSI (whether annual or
special and whether or not an adjourned or postponed meeting) or consent in lieu
of any such meeting or otherwise, on the matters and in the manner specified in
Section 1.01 hereof. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Stockholders hereby revoke all other proxies and powers of
attorney with respect to the Shares and the Other Securities which they may have
heretofore appointed or granted, and no subsequent proxy or power of attorney
shall be given or written consent executed (and if given or executed, shall not
be effective) by the Stockholders with respect to the matters specified in
Section 1.01 hereof. All authority herein conferred or agreed to be conferred
shall survive the death or incapacity of any Stockholder which is a natural
person and any obligation of any Stockholder under this Agreement shall be
binding upon the heirs, personal representatives and successors of such
Stockholder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants, severally but
not jointly, to Red Xxxxxx as follows:
SECTION 2.01. AUTHORITY RELATIVE TO THIS AGREEMENT. Each
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 2.02. NO CONFLICT. (a) The execution and delivery of
this Agreement by such Stockholder do not, and the performance of this Agreement
by such Stockholder shall not, (i) conflict with or violate any federal, state
or local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which the Shares or the Other Securities
owned by such Stockholder are bound or affected or (ii) result in any breach of
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares or the Other Securities owned by such
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or the Shares
or Other Securities owned by such Stockholder are bound or affected.
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(b) The execution and delivery of this Agreement by such
Stockholder do not, and the performance of this Agreement by such Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Authority (as such term is defined in
the Merger Agreement) except for applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended, or the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
SECTION 2.03. TITLE TO THE SHARES. As of the date hereof, each
Stockholder is the record and beneficial owner of the number of shares of GSI
Common Stock set forth opposite such Stockholder's name on Appendix A hereto,
which shares of GSI Common Stock represent on the date hereof the percentage of
the total outstanding shares of GSI Common Stock set forth on such Appendix.
Such Shares are all the securities of the Company owned, either of record or
beneficially, by such Stockholder. Except as set forth on Appendix A, such
Shares are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on such
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever. Except as provided in this Agreement, no Stockholder has appointed
or granted any proxy, which appointment or grant is still effective, with
respect to the Shares or Other Securities owned by such Stockholder.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
SECTION 3.01. NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each
Stockholder hereby covenants and agrees that, except as contemplated by this
Agreement, such Stockholder shall not offer or agree to sell, transfer, tender,
assign, hypothecate or otherwise dispose of, grant a proxy or power of attorney
with respect to, or create or permit to exist any security interest, lien,
claim, pledge, option, right of first refusal, agreement, limitation on any
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares or, directly or indirectly, initiate,
solicit or encourage, any person to take actions which could reasonably be
expected to lead to the occurrence of any of the foregoing.
SECTION 3.02. DILUTION. Each Stockholder hereby agrees,
jointly and severally, not to vote in favor of, approve or authorize any
transaction which results in the Stockholders holding, in the aggregate, less
than 50% of the total outstanding shares of GSI Common Stock upon the
consummation of such transaction.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.01. TERMINATION. This Agreement shall terminate upon
the termination of the Merger Agreement in accordance with its terms.
SECTION 4.02. FURTHER ASSURANCES. Each Stockholder and Red
Xxxxxx will execute and deliver all such further documents and instruments and
take all such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 4.03. SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.04. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between Red Xxxxxx and the Stockholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Red Xxxxxx and the Stockholders with respect to
the subject matter hereof.
SECTION 4.05. AMENDMENT. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
SECTION 4.06. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement 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 a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
SECTION 4.07. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State.
SECTION 4.08. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each Stockholder has duly executed this Agreement
as of the date first above written.
New River Capital Partners, L.P.
By: B&B Management Partners
Its: General Partner
By: Greyhawk Investments, Inc.
Its: Administrative General Partner
By:
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Xxxxxx X. Xxxxx, President
Xxxxxxxx Investments Limited Partnership
By:
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Name:
---------------------------------
Title:
--------------------------------
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Xxxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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Xxxx X. Xxxxxxxx and Xxxx Xxxxxxxx
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Xxxxxx X. Xxxx
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Xxxxxx X. Xxxxxxx
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------------------------------------------
Xxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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Xxxxx X. Xxxxxx
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Xxxxxx Xxxxxx and Xxxxxx Xxxxxx
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Xxxxxxxx Xxxxx and Xxxxxxx Xxxxx
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Xxxxxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxxxxxx
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AGREED AND ACCEPTED
FLORAFAX INTERNATIONAL, INC.
BY:
-------------------------------------
NAME: XXXXXX X. XXXXXXXX
TITLE: CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
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APPENDIX A
Approximate
Percentage
of Outstanding
Number of Xxxxxx Xxxxxxx, Number of
Shares of Inc. Shares Pledged
Common Stock Common Stock or Heldback
------------ ------------ -----------
New River Capital Partners, L.P. 5,908,966 31.9% 0
Xxxxxx X. Xxxxxx 2,520,004 13.6 1,250,002**
Xxxxxxxx Investments Limited Partnership 421,053 2.3 0
Xxxxxxx X. Xxxxx 391,545 2.1 75,071***
Xxxxxx X. Xxxxx 377,935 2.0 72,461***
Xxxx and Xxxx Xxxxxxxx 335,000 1.8 0
Xxxxxx X. Xxxx 247,500 1.3 0
Xxxxxx X. Xxxxxxx 237,500 1.3 0
Xxxxxx X. Xxxxx 141,125 * 0
Xxxxxxxx X. Xxxxx 105,935 * 20,311***
Xxxxxxx X. Xxxxx 105,427 * 20,214***
Xxxxx X. Xxxxxx 100,768 * 47,500**
Xxxxxx and Xxxxxx Xxxxxx 87,039 * 53,438**
Xxxxxxxx and Xxxxxxx Xxxxx 52,632 * 0
Xxxxxxx and Xxxxxx Xxxxxxxxxxx 52,632 * 0
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TOTAL 11,085,061 59.8%
* Less than 1%
** Shares are pledged either to New River Capital Partners, L.P. and/or
Xxxxxx X. Xxxxxxx, who have consented to the entering into of this Voting
Agreement and Proxy with respect to the pledged shares.
*** Shares which have been heldback as security for indemnification claims
pursuant to the Stock Purchase Agreement between such stockholders and
Xxxxxx Xxxxxxx, Inc. Such stockholders continue to possess the voting
rights of such shares until such time as a set off occurs.
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