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EXHIBIT 10(c)(iii)
VOTING AGREEMENT
This Voting Agreement (the "Agreement") is entered into as of this 28th day
of December, 1995, by and between Colonial Commercial Corporation (the
"Shareholder") and Building and Construction Partners, L.P., a California
Limited Partnership (the "Investor").
RECITALS:
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Whereas, the Investor has entered into a Stock Purchase Agreement, dated as
of July 26, 1995 (the "Stock Purchase Agreement"), with Monroc, Inc., a Delaware
Corporation (the "Issuer"), providing for the purchase by the Investor or its
assignee from the Issuer of 1,650,000 shares of the Issuer' s common stock $.01
par value (the "Common Stock") and a five-year warrant to purchase an additional
1,500,000 shares of Common Stock at an exercise price of $6.25 per share (the
"Warrant"); and
WHEREAS, under the Stock Purchase Agreement, Investor will designate a
majority of the members of the Board of Directors of the Issuer; and
WHEREAS, to induce the Investor to make the purchase of the shares of
Common Stock and the Warrant of the Issuer, the Shareholder is willing to agree
to vote the shares of Common Stock of the Issuer owned by the Shareholder in
favor of the individuals designated by the Investor to be members of the Board
of Directors of the Issuer (the "Investor Directors");
NOW, THEREFORE, the parties agree as follows:
1. Voting Agreement. The Shareholder irrevocably agrees to vote on a
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timely basis all shares of Common Stock held by the Shareholder in favor of the
election of Investor Directors proposed for election pursuant to Section 4.4 of
the Stock Purchase Agreement for a period that ends on the earliest of (a) ten
years from the date of this Agreement, (b) the first date on which the Investor
directly and indirectly owns less than 25% of the outstanding shares of Common
Stock, or (c ) the first date on which the Investor directly or indirectly owns
more than 50% of the outstanding shares of Common Stock.
2. Representations and Warranties of Shareholder. The
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Shareholder hereby represents and warrants to the Investor as follows:
(a) The Shareholder has the requisite power and authority to enter
into this Agreement and to carry out and perform the shareholder's obligations
under the terms of this Agreement.
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(b) The Shareholder owns or holds options to acquire, 378,071 shares
of the Common Stock. All of such shares are (or upon exercise of the related
option and payment of the exercise price will be) duly authorized, validly
issued, fully paid and nonassessable.
(c) This Agreement is a valid and binding agreement of the
Shareholder, enforceable in accordance with its terms. The execution, delivery
and performance by the Shareholder of this Agreement and compliance herewith
will not result in any violation of and will not conflict with, or result in a
breach of any of the terms of, or constitute a default under, any provision of
law to which the Shareholder is subject, or any mortgage, indenture, agreement,
instrument, judgment, decree, order, rule or regulation or other restriction to
which the Shareholder is a party or by which the Shareholder is bound.
(d) No consent, approval, qualification order or authorization of, or
filing with, any governmental or regulatory authority filing with, any
governmental or regulatory authority is required in connection with the
Shareholder's valid execution, delivery or performance of this Agreement.
3. Representations and Warranties of Investor. The Investor hereby
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represents and warrants to the Shareholder as follows:
(a)The Investor has the requisite power to enter into this agreement
and to carry out and perform its obligations under this agreement.
(b) All action on the part of the Investor necessary for the
authorization, execution, delivery and performance by the Investor of this
Agreement and the consummation of the transactions contemplated herein has been
taken. This Agreement is a valid and binding agreement of the Investor,
enforceable in accordance with its terms. The execution, delivery and
performance by the Investor of this Agreement and compliance therewith will not
result in any violation of and will not conflict with, or result in a breach of
any of the terms of, or constitute a default under any provision of law to which
the Investor is subject, or any mortgage, indenture, agreement, instrument,
judgment, decree, order, rule or regulation or other restriction to which the
Investor or any predecessor thereof is a party or by which it is bound.
4. Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of Delaware.
5. Survival. The representations, warranties, covenants and agreements made
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herein shall survive the Closing under the Stock Purchase Agreement.
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6. Successors and Assigns. Except as otherwise expressly provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors and assigns of the parties hereto, provided, however, that the
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provisions hereof shall not be binding on any (a) party that purchases the
shares of Common Stock covered hereby from the Shareholder in an offering
registered under the Securities Act of 1933, as amended (the "Act") or in a
transaction that complies with the provisions of Rule 144 under the Act (without
taking into consideration the provisions of Rule 144(k), or (b) any person who
purchases in the aggregate no more than 100,000 shares of Common Stock of the
Issuer (as adjusted to reflect the effect of any stock dividends, stock split or
other similar change in the capitalization of the Issuer) from the Shareholder
in one or more transactions, whether related or not. For the purpose of the
preceding sentence, a "person" also includes persons who act as a group, as
defined for the purposes of Section 13(d) under the Securities and Exchange Act
of 1934.
7. Entire Agreement; Amendment; Waiver. This Agreement constitutes the full and
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entire understanding and agreement between the parties with regard to the
subjects hereof. Neither this Agreement nor any terms hereof may be amended,
waived, discharged or terminated, except by written instrumentsigned by the
Shareholder and the Investor.
8. Notice, etc. All notices and other communications required or permitted
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hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, or delivered by hand, facsimile transmission or by messenger, addressed
(a) if to Investor, to Xxxxxxx X. Xxxx & Associates, L.P., at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000-0000 and at 00000 Xxxxxxx Xxxx.,
Xxxxx 0000, Xxxxxx, XX 00000, facsimile numbers (000)000-0000 and (000)000-0000,
with a copy to Xxxxxxx X. Xxxxxx, Xxxxxx Xxxx, Nemerovski, Candady, Xxxx &
Rabkin, A Professional Corporation, Three Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000, facsimile number: (000)000-0000, or at such other address
as the Investor shall have furnished to the Shareholder in writing, or (b) if to
the Shareholder, to the Shareholder at 0000 Xxxxxxxxx Xxxxxxxx, 000-X,
Xxxxxxxxx, XX 00000-0000, facsimile number (000)000-0000, or at such other
address as the Shareholder shall have furnished to the Investor in writing.
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9. Delays or Omissions. No delay or omission to exercise any right, power or
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remedy accruing to either party hereto upon any breach or default of the
other party hereto under this Agreement shall impair any such right, power or
remedy of the non-breaching or non-defaulting party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or
of or in any similar breach or default thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of either
party of any breach or default under this Agreement, or any waiver on the
part of either party of any provisions or conditions of this Agreement, must
be made in writing and shall be effective only to the extent, specifically
set forth in such writing. Except as otherwise provided herein, all remedies,
either under this Agreement or by law or otherwise afforded, shall be
cumulative and not alternative.
10.Separability. In case any provision of this Agreement shall be invalid,
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illegal or unenforceable, the validity, legality and enforceability of the
remaining provision shall not in any way be affected or impaired thereby.
11.Titles and Subtitles. The titles of the paragraphs and subparagraphs of this
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Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.
12.Counterparts. This Agreement may be executed in any number of counterparts,
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each of which shall be an original but all of which together, shall
constitute one instrument.
BUILDING AND CONSTRUCTION CAPITAL
PARTNERS, L.P.
By Xxxxxxx X. Xxxx & Associates,
L.P., a California Limited
Partnership
By Xxxxxxx X. Xxxx & Associates, Inc.
By
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Colonial Commercial Corporation
By /s/ Xxxxx X. Xxxxxxx
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