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Exhibit 10.59
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of March 7, 1997,
is between and among XXXXXX X. XXXXX, an individual with an office at 0000
Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 ("Xxxxx"), XXXXXX HOLDING COMPANY, LTD., an
Ohio limited liability company with an office at 0000 Xxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000 ("Xxxxxx"), and HARBERT EQUITY FUND I, L.L.C., a Georgia limited
liability company with an office at Xxx Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 ("Xxxxxxx").
W I T N E S S E T H :
WHEREAS, Xxxxx and Xxxxxx (collectively, the "Xxxxxx
Parties") beneficially own shares of the Common Stock, par value $.01 per share
(the "Stock"), of Crown NorthCorp, Inc., a Delaware corporation (the
"Company"); and
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, Xxxxxxx has acquired shares of the Stock pursuant to that
certain Stock Purchase Agreement, dated as of even date herewith, between and
among Xxxxxxx and the Company (the "Stock Purchase Agreement"); and
WHEREAS, Xxxxxxx desires that each of the Xxxxxx Parties
agrees to vote its shares in accordance with the provisions of this Agreement
to more fully effectuate certain provisions of the Stock Purchase Agreement
whereby Xxxxxxx is entitled to nominate one or more persons for election as a
director of the Company for a certain period; and
WHEREAS, the Xxxxxx Parties desire that Xxxxxxx and its
affiliates agrees to vote their shares in accordance with the provisions of
this Agreement for the continued election of Xxxxxx X. Xxxxx as a director of
the Company for such period;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the adequacy, sufficiency, and receipt
of which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in the Stock
Purchase Agreement.
SECTION 2. VOTING AGREEMENT OF THE XXXXXX PARTIES. During the
Corporate Governance Period, each of the Xxxxxx Parties, severally and not
jointly, agrees:
(a) To vote all shares of securities issued by the
Company and entitled to vote in the election of directors
("Voting Securities") beneficially owned by him or it for the
election as a director of the Company of such
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nominees for election as a director of the Company as Xxxxxxx
is entitled to designate for nomination as such pursuant to
the Stock Purchase Agreement;
(b) To cause (x) each of the members of Xxxxx'x
immediate family, (y) each entity controlled by any Xxxxxx
Party, and (z) each trust of which Xxxxx is a grantor
(collectively, the "Xxxxx Affiliates"), to vote all Voting
Securities beneficially owned by him, her, or it for the
election as a director of the Company of such nominees for
election as a director of the Company as Xxxxxxx is entitled
to designate for nomination as such pursuant to the Stock
Purchase Agreement;
(c) In the event a director of the Company so
designated for nomination by Xxxxxxx ceases to be a director
of the Company for any reason before his or her term as such
expires, to vote all shares of Voting Securities beneficially
owned by him, her, or it in favor of another individual
designated for nomination by Xxxxxxx for election as a
director of the Company to the extent Xxxxxxx is then
entitled to designate such other individual for nomination
for election as a director of the Company pursuant to the
Stock Purchase Agreement; and
(d) In the event a director of the Company so
designated for nomination by Xxxxxxx ceases to be a director
of the Company for any reason before his or her term expires,
to cause each of the Xxxxx Affiliates to vote all shares of
Voting Securities owned by him, her or it in favor of another
individual designated for nomination by Xxxxxxx for election
as a director of the Company to the extent Xxxxxxx is then
entitled to designate such other individual for nomination
for election as a director of the Company pursuant to the
Stock Purchase Agreement.
Notwithstanding the foregoing, however, to the extent that the Xxxxxx
Parties and Xxxxx Affiliates collectively do not possess the sole power to vote
or direct the voting of any such Voting Securities from time to time (the
shares as to which the Xxxxxx Parties and Xxxxx Affiliates do not so possess
such voting power being referred to herein as "Non-Exclusive Xxxxxx Shares"),
they shall be obligated to use their reasonable best efforts to cause such
NonExclusive Xxxxxx Shares to be voted in compliance with the foregoing.
SECTION 3. VOTING AGREEMENT OF XXXXXXX. Until the earlier of (i) the
expiration of the Corporate Governance Period, and (ii) the occurrence of a
Seller Breach (as defined in the Registration Rights Agreement, dated as of the
date hereof, between and among the Company and Xxxxxxx), Xxxxxxx agrees:
(a) To vote all shares of Voting Securities
beneficially owned by it for the election of Xxxxx as a
director of the Company;
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(b) To cause each Person controlling it, controlled
by it, or under common control with it (collectively, the
"Xxxxxxx Affiliates") to vote all shares of Voting Securities
beneficially owned by him, her, or it for the election of
Xxxxx as a director of the Company;
(c) In the event that Xxxxx ceases to be a director
of the Company for any reason before his term as such
expires, to vote all shares of Voting Securities beneficially
owned by it in favor of another individual nominated by Xxxxx
or, in the event of Xxxxx'x death or incapacity, his heirs,
legatees, executors, successors, guardians, legal
representatives, or administrators, as the case may be,
beneficially owning at least 50% of the Voting Securities
beneficially owned by Xxxxx immediately prior to his death or
incapacity, for election as a director of the Company; and
(d) In the event that Xxxxx ceases to be a director
of the Company for any reason before his term as such
expires, to cause each of the Xxxxxxx Affiliates to vote all
shares of Voting Securities beneficially owned by him, her,
or it in favor of another individual nominated by Xxxxx or,
in the event of Xxxxx'x death or incapacity, his heirs,
legatees, executors, successors, guardians, legal
representatives, or administrators, as the case may be,
beneficially owning at least 50% of the Voting Securities
beneficially owned by Xxxxx immediately prior to his death or
incapacity, for election as a director of the Company.
Notwithstanding the foregoing, however, to the extent that Xxxxxxx and
the Xxxxxxx Affiliates collectively do not possess the sole power to vote or
direct the voting of any such Voting Securities from time to time (the shares
as to which they do not so possess such voting power being referred to herein
as "Non-Exclusive Xxxxxxx Shares"), then Xxxxxxx shall be obligated to use its
reasonable best efforts to cause such Non-Exclusive Xxxxxxx Shares to be voted
in compliance with the foregoing.
SECTION 4. TERMINATION. This Agreement shall terminate upon the
expiration of the Corporate Governance Period in accordance with the Stock
Purchase Agreement.
SECTION 5. LEGENDS. The Xxxxxx Parties and Xxxxxxx will, and the
Xxxxxx Parties will cause the Xxxxx Affiliates to, and Xxxxxxx will cause the
Xxxxxxx Affiliates to, deliver certificates representing Voting Securities
beneficially owned by them to the Company for imprinting with the following
legend (which legend shall be removed, with respect to any of such Voting
Securities, upon the earlier of (i) the sale, assignment, or other transfer of
such Voting Securities to a Person not subject to the purview of this
Agreement, and (ii) the expiration of this Agreement), in each case on or
before the date that is the last to occur of (x) 30 days from the date of this
Agreement, and (y) their acquisition of beneficial ownership of such Voting
Securities:
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"The voting securities represented by this certificate are subject to
restrictions on voting, as provided in a Voting Agreement, dated as of
March 7, 1997, between and among Xxxxxxx Equity Fund I, L.L.C., Xxxxxx
Holding Company, Ltd., and Xxxxxx X. Xxxxx, a copy of which is on file
with the Secretary of the Company."
Notwithstanding the foregoing, however, Xxxxxxx shall be obligated to
utilize its reasonable best efforts to cause the beneficial owners of the
Non-Exclusive Xxxxxxx Shares to comply with this Section 5, and the Xxxxxx
Parties shall be obligated to utilize their respective reasonable best efforts
to cause the beneficial owners of the Non-Exclusive Xxxxxx Shares to comply
with this Section 5.
SECTION 6. SECRETARY TO RETAIN COPY. A copy of this Agreement shall be
filed with the Secretary of the Company.
SECTION 7. STOCK CHANGES. The provisions of this Agreement shall be
deemed to apply equally to any share of Stock or other securities distributed
in respect of shares of Stock.
SECTION 8. FURTHER ACTIONS. At any time and from time to time each
party agrees, at its or his expense, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
SECTION 9. AVAILABILITY OF EQUITABLE REMEDIES. Since a breach of the
provisions of this Agreement could not adequately be compensated by money
damages, any party shall be entitled, in addition to any other right or remedy
available to him, to an injunction restraining such breach or a threatened
breach and to specific performance of any such provision of this Agreement, and
in either case no bond or other security shall be required in connection
therewith, and the parties hereby consent to such injunction and to the
ordering of specific performance.
SECTION 10. MODIFICATION. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements among them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
SECTION 11. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement or at such other address as the other parties hereto
shall have been notified in writing pursuant hereto. Except as otherwise
specifically provided in this Agreement, any notice given by certified mail
shall be deemed given at the time of certification thereof except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof.
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SECTION 12. WAIVER. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. Any waiver must be
in writing.
SECTION 13. BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and the respective
successors and assigns of the corporate parties hereto and the respective
assigns, heirs, and personal representatives of the individual parties hereto.
SECTION 14. NO THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
SECTION 15. SEPARABILITY. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
SECTION 16. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SECTION 17. PRONOUNS. Any masculine personal pronoun shall be
considered to mean the corresponding feminine or neuter personal pronoun, as
the context requires.
SECTION 18. COUNTERPARTS; GOVERNING LAW. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. It shall be governed by and construed in accordance with the laws
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
SECTION 19. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx hereby
represents and warrants to Xxxxxxx that:
(i) It is a limited liability company duly
organized, validly existing, and in good standing under the
laws of the State of Ohio, with full limited liability
company power and authority to conduct its business as
currently conducted; and
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(ii) Assuming the due authorization,
execution, and delivery of this Agreement by the other
parties hereto, this Agreement constitutes its legal, valid,
and binding obligation, enforceable against it in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, moratorium, or other
laws affecting creditors' rights generally and by the
availability of equitable remedies.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
XXXXXX HOLDING COMPANY, LTD.
By: /s/
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
/s/
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XXXXXX X. XXXXX
XXXXXXX EQUITY FUND I, L.L.C.
BY: XXXXXXX MANAGEMENT CORPORATION,
MANAGER
By: /s/
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President & CFO
