EXHIBIT 10.5
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made and entered into as of the
19th day of November, 1997, by and among Xxx River Inc., a Georgia corporation
(the "Company"), Xxxxxx X. Xxxxxx, Xx., an individual resident of the State of
Alabama ("Xxxxxx Xxxxxx"), and Xxxxxxx X. Xxxxxxxx, an individual resident of
the State of New Jersey, Xxxxx X. Xxxx, an individual resident of the State of
Virginia, X.X. Xxxxxxxx f/b/o Xxxxx X. Xxxx ("X.X. Xxxxxxxx"), Xxx X. Xxxxxxx,
an individual resident of the State of Florida, Xxxxxx X. Xxxxxx, III, an
individual resident of the State of Virginia, Xxx X. Xxxxxx, an individual
resident of the State of Alabama, and Xxxxxxx X. Xxxxxxxx, an individual
resident of the State of New Jersey (all of such individuals and X.X. Xxxxxxxx
shall be referred to collectively as the "Shareholders" and individually as a
"Shareholder");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and certain of the Shareholders are party to a Voting
Agreement dated September 3, 1991 (the "1991 Voting Agreement"); and
WHEREAS, on September 26, 1997, the Company filed a Registration Statement
on Form S-1 (File No. 333-36479) under the Securities Act of 1933, as amended,
relating to a proposed initial public offering (the "IPO") of Class A Common
Stock, par value $.01 per share, of the Company ("New Class A Common");
WHEREAS, in connection with the IPO, effective November 3, 1997, the
Amended and Restated Articles of Incorporation of the Company were amended and
restated to, among other things, authorize the issuance of supervoting Class B
Common Stock, par value $.01 per share, of the Company ("New Class B Common");
and
WHEREAS, in connection with the IPO, the Company and each Shareholder has
entered into an exchange agreement pursuant to which each Shareholder has
exchanged (the "Exchange Offer") each share of New Class A Common owned by such
Shareholder for one share of New Class B Common; and
WHEREAS, in connection with the IPO and the Exchange Offer, the Company and
the Shareholders have determined to terminate the 1991 Voting Agreement and to
enter into this Agreement which will contain certain voting arrangements among
the Shareholders;
NOW THEREFORE, in consideration of the mutual agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. VOTING ARRANGEMENT.
1.1 CONTROL BY PROXY. Each of the Shareholders hereby irrevocably grants
to Xxxxxx Xxxxxx a proxy, in the form of Exhibit A attached hereto, to vote any
and all shares of New Class B Common owned by each of them (the "Shareholder
Group Stock"), whether such shares are owned by them currently or are acquired
by them in the future. Each such proxy shall survive the death, disability or
incapacity of the individual granting such proxy.
SECTION 2. TERMINATION. This Agreement shall terminate and shall be of no
further force and effect, upon the earlier of (i) November 19, 2007, (ii) the
death or mental incapacity of Xxxxxx Xxxxxx or (iii) the date on which the
parties hereto agree in writing to terminate this Agreement.
SECTION 3. LEGEND. Each certificate representing shares of Shareholder
Group Stock and each certificate issued in exchange for or upon the transfer of
any Shareholder Group Stock shall be stamped or otherwise imprinted
conspicuously with a legend in substantially the following form:
"The securities represented by this certificate are subject to a
Voting Agreement dated as of November 19, 1997, among the issuer of
such securities (the "Company") and certain of the Company's
shareholders. A copy of such Voting Agreement will be furnished
without charge by the Company to the holder hereof upon written
request."
The legend set forth above shall be removed from the certificates evidencing any
shares upon the termination of this Agreement pursuant to Section 2 hereof.
SECTION 4. MISCELLANEOUS.
4.1 TERMINATION OF 1991 AGREEMENT. The Shareholders and the Company
hereby terminate the 1991 Voting Agreement, and the 1991 Voting Agreement shall
be of no further force or effect.
4.2 STATUTORY AUTHORITY. The intent of the parties hereto is that this
Agreement shall serve as a voting agreement contemplated in Section 14-2-731 of
the Georgia Business Corporation Code.
4.3 RESTRICTION ON TRANSFER. During the term of this Agreement, no
transfer of the Shareholder Group Stock shall be permitted unless the transferee
of such Shareholder Group Stock shall have agreed in writing to be bound by the
provisions of this Agreement.
4.4 AMENDMENT AND WAIVER. No modification, amendment or waiver of any
provision of this Agreement will be effective unless such modification,
amendment or waiver
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is approved in writing by all of the parties hereto. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions of this Agreement and will not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
4.5 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
4.6 ENTIRE AGREEMENT. Except as otherwise expressly set forth herein,
this document embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
4.7 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement will bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns, and the Shareholders and any subsequent
holders of shares of Shareholder Group Stock and the respective successors and
assigns of each of them, so long as they hold shares of Shareholder Group Stock.
4.8 COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
4.9 REMEDIES. The Shareholders shall be entitled to enforce their rights
under this Agreement specifically to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any Shareholder may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief in order to enforce or prevent any violation of the provisions of this
Agreement.
4.10 NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the recipient at the address indicated on Schedule A hereto and to
any subsequent holder of any shares of Shareholder Group Stock subject to this
Agreement at such address as indicated by the Company's records, or at such
other address or to the attention of such other person as the recipient party
has specified by
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prior written notice to the sending party. Notices will be deemed to have been
given hereunder when delivered personally, three days after deposit in the U.S.
mail and one day after deposit with a reputable overnight courier service.
4.11 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Georgia.
4.12 DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXX RIVER INC.
By:
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Xxxxxx X. Xxxxxx, Xx.
Chief Executive Officer
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XXXXXX X. XXXXXX, XX.
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XXX X. XXXXXX
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XXX X. XXXXXXX
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XXXXXX XXXXXX, III
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XXXXX X. XXXX
X.X. XXXXXXXX F/B/O
XXXXX X. XXXX
By:
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XXXXXXX X. XXXXXXXX
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XXXXXXX X. XXXXXXXX
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SCHEDULE A
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XXX RIVER INC.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
XXXXXX X. XXXXXX, XX.
c/o Xxx River Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
XXX X. XXXXXXX
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
XXXXXX XXXXXX, III
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
XXXXX X. XXXX
c/o Xxx River Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
X.X. XXXXXXXX F/B/O XXXXX X. XXXX
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
XXXXXXX X. XXXXXXXX
c/o Xxx River Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
XXX X. XXXXXX
0000 Xxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
XXXXXXX X. XXXXXXXX
00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
EXHIBIT A
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XXX RIVER INC.
IRREVOCABLE PROXY
The undersigned agrees to, and hereby grants to Xxxxxx X. Xxxxxx, Xx., an
irrevocable proxy pursuant to the provisions of Section 14-2-722 of the Georgia
Business Corporation Code to vote, or to execute and deliver written consents or
otherwise act with respect to, all shares of Class B Common Stock, par value
$.01 per share (the "Stock") of XXX RIVER INC. (the "Corporation") now owned or
hereafter acquired by the undersigned as fully and to the same extent and with
the same effect as the undersigned might or could do under any applicable laws
or regulations governing the rights and powers of shareholders of a Georgia
corporation in connection with the election of directors of the Corporation as
provided in a certain Voting Agreement, dated as of November 19, 1997, among the
undersigned and certain other shareholders of the Corporation (the "Voting
Agreement"). The undersigned hereby affirms that this proxy is given as a
condition of the Voting Agreement and as such is coupled with an interest and is
irrevocable. It is further understood by the undersigned that this proxy may be
exercised by Xxxxxx X. Xxxxxx, Xx. for the period beginning on the date hereof
and continuing until the earlier of (i) the death or incapacity of Xxxxxx X.
Xxxxxx, Xx. or (ii) the termination of the Voting Agreement.
THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST
ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK.
Dated this ______ day of November, 1997.
By:
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