EXHIBIT A
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 XXXXXX XXXXXXX, INC., a Delaware corporation ("GSI").
WHEREAS, GSI, Florafax International, Inc., a Delaware corporation
("RED XXXXXX"), 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 4,965,946 shares
of Red Xxxxxx common stock, par value $.01 per share ("RED XXXXXX COMMON
STOCK"), which represent in the aggregate approximately 62% of the total issued
and outstanding Red Xxxxxx Common Stock (53% on a fully-diluted basis); and
WHEREAS, as a condition to the willingness of GSI to enter into the
Merger Agreement, GSI has required that the Stockholders agree, and in order to
induce GSI to enter into the Merger Agreement, the Stockholders have agreed, to
enter into this Agreement with respect to all the shares of Red Xxxxxx 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 Red Xxxxxx (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 Red Xxxxxx, however called, and in any action by consent of the stockholders
of Red Xxxxxx, each of the Stockholders shall vote the Shares and the Other
Securities: (a) in favor of the issuance of Red Xxxxxx Common Stock pursuant to
the Merger and the other transactions contemplated by the Merger Agreement; (b)
for an amendment to the Certificate of Incorporation of Red Xxxxxx to increase
in the number of authorized shares of Common Stock and to change the name of Red
Xxxxxx to "Xxxxxx Xxxxxxx, Inc." as contemplated in the Merger Agreement; (c)
for the election of new directors to the Board
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of Directors of Red Xxxxxx as contemplated by the Merger Agreement; and (d)
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
Red Xxxxxx under the Merger Agreement or that could result in any of the
conditions to Red Xxxxxx'x obligations under the Merger Agreement not being
fulfilled, including, without limitation, any proposal with respect to approving
a Competing Transaction (as defined in the Merger Agreement). Each Stockholder
acknowledges receipt and review of a copy of the Merger Agreement.
SECTION 1.02. IRREVOCABLE PROXY. Each Stockholder hereby irrevocably
appoints GSI, 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 Red Xxxxxx (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 GSI 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
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(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.
(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 Red
Xxxxxx Common Stock set forth opposite such Stockholder's name on Appendix A
hereto, which shares of Red Xxxxxx Common Stock represent on the date hereof the
percentage of the total outstanding shares of Red Xxxxxx 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. NO SOLICITATION OF COMPETING TRANSACTIONS. Each
Stockholder hereby agrees, jointly and severally, to be bound and to comply with
the obligations of Red Xxxxxx
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set forth in Section 6.2 of the Merger Agreement as if such obligations were set
forth in their entirety in this Section 3.02 as obligations of such Stockholder.
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 GSI 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 GSI and the Stockholders with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between GSI 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.
HILLTOP PARTNERS L.P.
By: XXXXXX CAPITAL MANAGEMENT, INC.
as General Partner
By:
--------------------------
Xxxxx Xxxxxx, President
HILLTOP OFFSHORE, LTD.
By: XXXXXX CAPITAL MANAGEMENT, INC.
as General Partner
By:
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Xxxxx Xxxxxx, President
CHESED CONGREGATIONS OF AMERICA
By:
---------------------------------
Xxxxx Xxxxxx, President
UNITED CONGREGATION MESORAH
By:
---------------------------------
Xxxxx Xxxxxx, Secretary
THE XXXXXXX GRANDCHILDREN TRUST
By:
---------------------------------
Biniamina Amoyelle, Trustee
THE XXXXXXX FAMILY TRUST
By:
---------------------------------
Biniamina Amoyelle, Trustee
F/B/O XXX XXXXXXX, XXX
By:
---------------------------------
Xxx Xxxxxxx
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XXXXXX X. XXXXXXXX, individually, as custodian on
behalf of Xxxxxxxx X. Xxxxxxxx, and jointly with
his spouse, Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX, individually, jointly with her
spouse, Xxxxxx X. Xxxxxxxx, as trustee of the
Xxxxx X. Xxxxxxxx Family Trust, and as custodian for
the benefit of Xxxxxx X. Xxxxxxxx, Xx., Xxxx X.
Xxxxxxxx and Xxxxxxxx Xxxxxxxx
EQUITY RESOURCE GROUP OF INDIAN
RIVER COUNTY, INC.
By:
---------------------------------------------
Xxxxxx X. Xxxxxxxx
President
CONFIDENTIAL INVESTMENT SERVICES,
INC.
By:
---------------------------------------------
Xxxxxx X. Xxxxxxxx
President
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XXXXXXX X. XXXXXXX, individually and on behalf of
PUTTICK ENTERPRISES
------------------------------------------------
S. Xxxx Xxxxxx, Xx.
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T. Xxxxx Xxxxxx
----------------------------
Xxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxxx
