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EXHIBIT 10
VOTING AGREEMENT
THIS VOTING AGREEMENT dated September 12, 2000, between Reliance
Security Group plc, a company organized under the laws of England and Wales
("Reliance"), and Katie and Xxxx Bridge Partners, L.P. ("KA") and Owl-1
Partners, L.P. ("Owl" and with KA, collectively the "Shareholder").
WITNESSETH
WHEREAS, concurrently herewith, Reliance and the Shareholder, among
other parties, are entering into a Stock Purchase Agreement (as such agreement
may hereafter be amended from time to time, the "Stock Purchase Agreement"),
pursuant to which Shareholder will sell all common stock and preferred stock of
Command Security Corporation, a New York corporation (the "Company"),
beneficially owned by such Shareholder to Reliance;
WHEREAS, the Shareholder Beneficially Owns, as of the date hereof, an
aggregate of 125,000 shares of common stock, $.0001 par value per share, of the
Company (the "Common Stock") and 8,244.12 shares of Series A Preferred Stock,
$.0001 par value per share (the "Preferred Stock"), of the Company (together
with the Common Stock, the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Stock
Purchase Agreement, Reliance has required that the Shareholder agree, and the
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings given to such terms in the Stock
Purchase Agreement. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with
respect to any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would constitute
a "group" as within the meaning of Section 13(d)(3) of the Exchange Act. No
representation or warranty is made hereby that the Sellers constitute a "group"
within the meaning of Section 13(d)(3) of the Exchange Act. Reliance
understands, agrees and acknowledges that certain affiliates of the Shareholder
hold discretionary authority over certain shares which are not and should not
be deemed Beneficially Owned by Shareholder.
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(b) "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
2. Provisions Concerning Common Stock.
The Shareholder hereby severally and not jointly agrees that at
any meeting of the holders of Common Stock and/or Preferred Stock of the
Company, however called, or in connection with any written consent of the
holders of Common Stock and/or Preferred Stock of the Company, the Shareholder
shall vote (or cause to be voted) all Shares that it has Beneficial Ownership
of at the time of the vote, which shall be 125,000 Shares of Common Stock and
8,244.12 Shares of Preferred Stock (the "Proxy Shares") (i) in favor of (A) the
issuance of the Company Warrant (as defined in the Stock Purchase Agreement)
and the Shares of Common Stock issuable upon exercise of the Company Warrant,
(B) approval of the Charter Amendment (as defined in the Stock Purchase
Agreement) and (C) any other transaction or matter contemplated by, in
connection with, or referenced as a closing condition in, the Stock Purchase
Agreement, and (ii) except as otherwise agreed to in writing in advance by
Reliance, against the following actions: (1) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company (other than in connection with the transactions
contemplated by, in connection with or referenced as a closing condition in,
the Stock Purchase Agreement); (2) a sale, lease or transfer of a material
amount of assets of the Company or its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or; (3) any change
in a majority of the persons who constitute the board of directors of the
Company (other than in connection with the transactions contemplated by, in
connection with or referenced as a closing condition in, the Stock Purchase
Agreement); (4) any change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or Bylaws (other than
in connection with the transactions contemplated by, in connection with or
referenced as a closing condition in, the Stock Purchase Agreement); (5) any
other material change in the Company's corporate structure or business (other
than in connection with the transactions contemplated by, in connection with or
referenced as a closing condition in, the Stock Purchase Agreement); or (6) any
other action involving the Company which is intended, or could reasonably be
expected, to materially impede, interfere with, delay, postpone, or materially
adversely affect the transactions contemplated by, in connection with or
referenced as a closing condition in, this Agreement or the Stock Purchase
Agreement. The Shareholder shall not enter into any agreement or understanding
with any Person the effect of which would be inconsistent with or violative of
the provisions and agreements contained in this Section 2. Notwithstanding the
foregoing, the Shareholder shall not be prohibited from voting his Proxy Shares
in favor of a reverse stock split or other recapitalization transaction to
enable the Company to maintain its listing on the Nasdaq Small Cap Market.
3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) During the term of this Agreement, the Shareholder
severally and not jointly hereby irrevocably grants to, and appoints, Xxx
Xxxxxxx and Xxxxx Xxxxxxxxxx, each in his capacity as an officer of Reliance,
and any other individual who shall hereafter be designated by Reliance, and
each of them individually, the Shareholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
Shareholder, to vote the Proxy
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Shares, or grant a consent or approval in respect of such Proxy Shares, in
accordance with Section 2.
(b) The Shareholder represents that any proxies
heretofore given in respect of the Proxy Shares are not irrevocable, and that
any such proxies are hereby revoked, other than that certain Shareholders
Voting Agreement dated as of the 8th day of March, 1995 by and among Xxxxxxx X.
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxx X. Xxxxxxxxxxxx, Xxxxx X. Xxxxxxxx III, Xxxxx
Xxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxx and Xxxxxxx X. Xxxxxx which must be revoked
as a condition to Reliance's obligation to close under the Stock Purchase
Agreement.
(c) The Shareholder hereby affirms that the irrevocable
proxy set forth in this Section 3 is given in connection with the execution of
the Stock Purchase Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Shareholder under this Agreement.
The Shareholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Shareholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof and that such irrevocable proxy is executed
and intended to be irrevocable in accordance with the provisions of Section 609
(f) of the New York Business Corporations Law.
4. Representations and Warranties of the Shareholder. The
Shareholder hereby severally and not jointly represents and warrants to
Reliance as follows:
(a) Ownership of Shares. The Shareholder is the record
holder of or Beneficially Owns the Proxy Shares. The Shareholder has voting
power and power to issue instructions and grant the irrevocable proxies with
respect to the matters set forth in Section 2 and Section 3 hereof, power of
disposition, power of conversion, power to exercise dissenters' rights and
power to agree to all of the matters set forth in this agreement, in each case
with respect to all of the Proxy Shares, with no limitations, qualifications or
restrictions on such rights, subject to applicable state and federal securities
laws, the terms and conditions of discretionary agreements to which the
Shareholders may be subject and the terms of this Agreement.
(b) Power; Binding Agreement. The Shareholder has the
legal capacity, power and authority to enter into and perform all of his
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Shareholder will not violate any other Agreement to which
the Shareholder is a party including, without limitation, any voting agreement,
shareholders agreement or voting trust. This Agreement has been duly and
validly executed and delivered by the Shareholder and constitutes a valid and
binding agreement of the Shareholder, enforceable against the Shareholder in
accordance with its terms except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to the
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity and discretion of the court before which any proceedings
seeking injunctive relief or specific performance may be sought. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Shareholder is trustee whose consent is required for the
execution and delivery of this agreement or the consummation by the Shareholder
of the transactions contemplated hereby. If the Shareholder is married and the
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Shareholder's Shares (other than Shares Beneficially Owned by Shareholder
without considering discretionary authority) constitute community property,
this agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Shareholder's spouse,
enforceable against such Person in accordance with its terms except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to the enforcement of creditors' rights generally
and (ii) is subject to general principles of equity and discretion of the court
before which any proceedings seeking injunctive relief or specific performance
may be sought.
(c) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by the Shareholder
and the consummation by the Shareholder of the transactions contemplated
hereby. Neither of the execution and delivery of this Agreement by the
Shareholder, the consummation by the Shareholder of the transactions
contemplated hereby nor compliance by the Shareholder with any of the
provisions hereof shall, in a manner which would be material and adverse to the
ability of the Shareholder to consummate the transactions contemplated hereby
or to comply with the terms hereof (i) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Shareholder is a party or by which the Shareholder or any of
the Shareholder's properties or assets may be bound, or (ii) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Shareholder or any of the Shareholder's properties or assets.
(d) No Encumbrances. Except as applicable in connection
with the transactions contemplated hereby, the Shares over which Shareholder
has Beneficial Ownership at the time of the Closing (the "Transaction Shares")
and the certificates representing the Transaction Shares will be at the time of
Closing, held by the Shareholder, or by a nominee or custodian for the benefit
of the Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder in favor of Reliance.
(e) Reliance. The Shareholder understands and acknowledges
that Reliance is entering into the Stock Purchase Agreement in reliance upon
the Shareholder's execution and delivery of this Agreement.
5. Additional Covenants of the Shareholder. The Shareholder
severally and not jointly hereby covenants to Reliance as follows:
(a) Restriction on Transfer of Shares, Proxies and
Non-Interference. Beginning on the date hereof and ending on the date that all
of the Shareholder's obligations under Section 2 and Section 3 have terminated,
except as contemplated by this Agreement or the Stock Purchase Agreement, the
Shareholder shall not, directly or indirectly, (i) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract,
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option or other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Transaction Shares or any interest therein,
(ii) except as contemplated by this Agreement, grant any proxies or powers of
attorney, deposit any of the Transaction Shares into a voting trust or enter
into a voting agreement with respect to any of the Transaction Shares, or (iii)
take any action that would make any representation or warranty of the
Shareholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Shareholder from performing the Shareholder's
obligations under this Agreement.
(b) Additional Shares. The Shareholder agrees, while this
Agreement is in effect the Shareholder shall not acquire, directly or
indirectly, any additional shares of the Company's Common Stock or Preferred
Stock.
6. Representations and Warranties of Reliance. Reliance hereby
covenants, represents and warrants to the Shareholder that it has the legal
capacity, power and authority to enter into and perform all of such party's
obligations under this Agreement; the execution, delivery and performance of
this Agreement by Reliance will not violate or result in a breach of any other
material agreement to which Reliance is a party; the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly executed and delivered by Reliance and constitutes a
valid and binding agreement, enforceable in accordance with its terms.
7. Further Assurances. From time to time, for a reasonable period
of time following the Closing under the Stock Purchase Agreement, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further
reasonable lawful action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
8. Termination; Expenses and Fees.
(a) The covenants and agreements contained herein with
respect to the Shares shall terminate in the event the Stock Purchase Agreement
is terminated in accordance with its terms, except that the provisions of
Section 11 and Section 12 hereof shall survive any termination of this
Agreement. No termination of this Agreement shall relieve any party of
liability for a breach hereof.
(b) Each party shall bear its own expenses in connection
with this Agreement and the transactions contemplated hereby.
9. Shareholder Capacity. To the extent an affiliate of the
Shareholder is an officer and/or director of the Company, the Shareholder is
not executing this Agreement and does not make any agreement or understanding
herein in his or her capacity as a director or officer of the Company and
nothing contained herein shall limit or affect any actions taken by the
Shareholder in his capacity as a director or officer of the Company and none of
such actions in such capacities
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shall be deemed to constitute a breach of this Agreement. The Shareholder
signs solely in his capacity as the record or Beneficial Owner of the Shares.
10. Risk of Revocation of Discretionary Authority. The parties
understand, acknowledge and agree that certain affiliates of the Shareholder
hold discretionary authority over certain shares of Common Stock which are not
and should not be deemed to be covered by this Agreement. Nevertheless,
Reliance understands that such discretionary accounts may be revoked at any
time and further agree that Shareholder shall have no liability for any
representations, warranties, covenants, obligations or agreements with respect
to shares of Common Stock for which such discretionary authority has been
revoked.
11. Sophistication. The Shareholder acknowledges that it is an
informed and sophisticated investor and, together with his advisors, has
undertaken such investigation as they have deemed necessary, including the
review of the Stock Purchase Agreement and this Agreement, to enable the
Shareholder to make an informed and intelligent decision with respect to the
Stock Purchase Agreement and this Agreement and the transactions contemplated
thereby and hereby.
12. Confidentiality. Each of the parties hereto recognizes that
successful consummation of the transactions contemplated by this Agreement may
be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, each party
hereby agrees not to disclose or discuss such matters with anyone not a party
to this Agreement or the Stock Purchase Agreement (other than the record or
other Beneficial Owners of the Shares, if necessary, such party's counsel and
advisors, if any, and the Company and its counsel and advisors) without the
prior written consent of the other party, except for filings required pursuant
to the Exchange Act and the rules and regulations thereunder or disclosures
such party's counsel advises are necessary in order to fulfill such party's
obligations imposed by law, in which event such party shall give notice of such
disclosure to the other party as promptly as practicable so as to enable the
other party to seek a protective order from a court of competent jurisdiction
with respect thereto.
13. Miscellaneous.
(a) Entire Agreement. This Agreement and the Stock Purchase
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
(b) Certain Events. The Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shareholder's
Shares (exclusive of Shares Beneficially Owned by virtue of discretionary
authority) and shall be binding upon any person or entity to which legal or
Beneficial Ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, the Shareholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of Shares
(exclusive of Shares Beneficially Owned by virtue of discretionary authority),
the transferor shall remain liable for the performance of all obligations under
this Agreement of the transferor.
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(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party, provided, that Reliance may assign, in its sole discretion, its rights
and obligations hereunder to any direct or indirect wholly owned subsidiary of
Reliance, but no such assignment shall relieve Reliance of its obligations
hereunder if such assignee does not or cannot perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
party to be charged thereby or, with respect to termination, as otherwise
provided herein.
(e) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any nationally recognized courier
service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to the Shareholder:
00 Xxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
and
Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Reliance :
Reliance Security Group plc
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx XX00XX
Attention: Xxxxx Xxxxxxxxxx
Facsimile: 011 441895205090
and: Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxx, Esq.
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Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of 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 portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein; provided that the overall intent of this
Agreement, together with the Stock Purchase Agreement is achieved.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the aggrieved party to sustain damages
for which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to seek the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or
in equity.
(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court for the Southern
District of New York or any court of the State of New York located in the City
of New York in any action, suit or proceeding arising
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in connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose referred
to in this paragraph (1) and shall not be deemed to be a general submission to
the jurisdiction of said Courts or in the State New York other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(m) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Reliance and the Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
RELIANCE SECURITY GROUP PLC
By:
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Name:
Title:
Katie and Xxxx Bridge Partners, L.P.
By:
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Name:
Title: President of Corporate General Partner
Owl-1 Partners, L.P.
By:
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Name:
Title: President of Corporate General Partner
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