EXHIBIT 2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 20, 2004 (this
"Agreement"), among Baton Holdings Inc., a Delaware corporation ("Parent"), H.
Xxxxx Xxxxxxxx ("Stockholder") and Xxxxxxxx Investments Limited Partnership, a
Nevada limited partnership ("HILP").
WHEREAS, concurrently herewith, Parent, Baton Acquisition
Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and Boca Resorts, Inc., a Delaware corporation (the "Company"), are
entering into an Agreement and Plan of Merger (the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement), pursuant to which (and subject to the terms and
conditions set forth therein) Merger Sub will merge with and into the Company
(the "Merger"), and each issued and outstanding share of Class A common stock,
par value $0.01 per share, of the Company (the "Company Class A Common Stock"),
and each issued and outstanding share of Class B common stock, par value $0.01
per share, of the Company (the "Company Class B Common Stock" and, together with
the Company Class A Common Stock, the "Company Common Stock"), will be converted
into the right to receive the Merger Consideration;
WHEREAS, Stockholder beneficially owns 255,000 Shares of
Company Class B Common Stock (the "Class B Owned Shares" and, together with any
Shares of Company Class B Common Stock of which Stockholder acquires beneficial
ownership after the date hereof and prior to the termination hereof, whether
upon exercise of options, warrants, conversion of other convertible securities
or otherwise, are collectively referred to herein as the "Covered Shares");
WHEREAS, Stockholder beneficially owns 6,430,696 Shares of
Company Class A Common Stock (such shares, together with the Class B Owned
Shares, the "Owned Shares");
WHEREAS, in order to induce Parent to enter into the Merger
Agreement and proceed with the Merger, Parent, Stockholder and HILP are entering
into this Agreement; and
WHEREAS, Stockholder and HILP acknowledge that Parent is
entering into the Merger Agreement in reliance on the representations,
warranties, covenants and other agreements of Stockholder and HILP set forth in
this Agreement and would not enter into the Merger Agreement if Stockholder and
HILP did not enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, Parent, Stockholder and HILP hereby agree as follows:
1. Agreement to Vote.
(a) Prior to any termination of this Agreement, Stockholder
hereby agrees that it shall, and shall cause HILP and any other holder of record
of any Covered Shares to, at any meeting of the stockholders of the Company
(whether annual or special and whether or not an adjourned or postponed
meeting), however called, (i) when a meeting is held, appear at such
meeting or otherwise cause the Covered Shares to be counted as present thereat
for the purpose of establishing a quorum, (ii) vote (or caused to be voted) in
person or by proxy all Covered Shares in favor of the Merger and any other
matters necessary for consummation of the Transactions and (iii) vote (or cause
to be voted) all Covered Shares against (A) any proposal for any
recapitalization, reorganization, liquidation, merger, sale of assets or other
business combination between the Company and any other person (other than the
Merger) and (B) any other action that could reasonably be expected to, impede,
interfere with, delay, postpone or adversely affect the Merger or any of the
Transactions, any transactions contemplated by this Agreement or result in a
breach in any material respect of any covenant, representation or warranty or
other obligation or agreement of the Company under the Merger Agreement.
(b) EACH OF STOCKHOLDER AND HILP HEREBY GRANTS TO, AND
APPOINTS, PARENT, THE PRESIDENT OF PARENT AND THE SECRETARY OF PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S AND HILP'S RESPECTIVE IRREVOCABLE
(UNTIL THE TERMINATION DATE, AS DEFINED BELOW) PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE THE COVERED SHARES AS INDICATED IN CLAUSE
(a) OF THIS SECTION 1. EACH OF STOCKHOLDER AND HILP INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE, AS DEFINED BELOW) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY
PROXY PREVIOUSLY GRANTED BY EACH OF STOCKHOLDER OR HILP WITH RESPECT TO THE
COVERED SHARES.
(c) Except as set forth in clause (a) of this Section 1,
Stockholder shall not be restricted from voting in favor of, against or
abstaining with respect to any matter presented to the stockholders of the
Company. In addition, nothing in this Agreement shall give Parent or any of its
officers or designees the right to vote any Covered Shares in connection with
the election of directors.
2. No Inconsistent Agreements. Each of Stockholder and HILP
hereby covenants and agrees that, except as contemplated by this Agreement, it
(a) has not entered into, and shall not enter at any time while this Agreement
remains in effect, any voting agreement or voting trust with respect to the
Owned Shares and (b) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy or power of attorney with respect to the
Covered Shares, in either case, which is inconsistent with its obligations
pursuant to this Agreement.
3. Termination. This Agreement shall terminate upon the
earliest of (a) the Effective Time, (b) the termination of the Merger Agreement
in accordance with its terms, and (c) written notice of termination of this
Agreement by Parent to Stockholder and HILP, such earliest date being referred
to herein as the "Termination Date".
4. Representations and Warranties.
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(a) Representations and Warranties of Parent. Parent hereby
represents and warrants to Stockholder and HILP as follows:
(i) Valid Existence. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite corporate power
and authority and all necessary governmental approvals to own, lease
and operate its properties and to carry on its business as it is now
being conducted.
(ii) Authority Relative to This Agreement. Parent has all
necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement by Parent and the consummation by Parent
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action, and no other corporate
proceedings on the part of Parent are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly authorized, executed and delivered
by Parent and, assuming due authorization, execution and delivery by
Stockholder and HILP, constitutes a legal, valid and binding obligation
of Parent, enforceable against Parent in accordance with its terms.
(iii) No Conflicts. Except for the applicable requirements of
the Exchange Act (A) no filing with, and no permit, authorization,
consent or approval of, any Governmental Authority is necessary on the
part of Parent for the execution and delivery of this Agreement by
Parent and the consummation by Parent of the transactions contemplated
hereby and (B) neither the execution and delivery of this Agreement by
Parent nor the consummation by Parent of the transactions contemplated
hereby nor compliance by Parent with any of the provisions hereof shall
(1) conflict with or violate the Certificate of Incorporation or Bylaws
of Parent, (2) result in any breach or violation of, or constitute a
default (or an event which, 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 on any property or asset of Parent pursuant to, any Contract
to which Parent is a party or by which Parent or any property or asset
of Parent is bound or affected or (3) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent or
any of its properties or assets, except in the case of (2) or (3) for
violations, breaches or defaults that would not in the aggregate
materially impair the ability of Parent to perform its obligations
hereunder.
(b) Representations and Warranties of Stockholder and HILP.
Stockholder and HILP hereby, jointly and severally, represent and warrant to
Parent as follows:
(i) Ownership of Securities. As of the date of this Agreement,
(A) Stockholder beneficially owns the Owned Shares, (B) Stockholder is
the sole record holder of 397,202 Shares of Company Class A Common
Stock and 255,000 Shares of Company Class B Common Stock (all of which
Shares are included in the Owned Shares), free and clear of Liens
(other than Liens created by this Agreement or in connection with the
arrangements set forth on Schedule I attached to this Agreement), (C)
HILP is the sole record holder of 6,033,494 Shares of Company Class A
Common Stock
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(which Shares are included in the Owned Shares), free and clear of
Liens (other than Liens created by this Agreement or in connection with
the arrangements set forth on Schedule I attached to this Agreement),
(D) Stockholder has sole voting power and sole power of disposition
with respect to all Owned Shares, with no restrictions (other than
those created by this Agreement or in connection with the arrangements
set forth on Schedule I attached to this Agreement), subject to
applicable federal securities laws on their rights of disposition
pertaining thereto, (E) Stockholder beneficially owns 1,500,000 Shares
issuable upon the exercise of currently exercisable stock options
(collectively, the "Options"), and (F) HILP does not own beneficially
or of ------- record any equity securities of the Company other than
6,033,494 Shares of Company Class A Common Stock. Stockholder is the
sole record holder of, and has sole voting power and sole power of
disposition with respect to, all Class B Owned Shares. Xxxxxxxx
Investments, Inc. is the general partner of HILP. Stockholder is the
sole record and beneficial owner of all capital stock of Xxxxxxxx
Investments, Inc. and all limited partnership interests of HILP, in
each case free and clear of all Liens. Neither Stockholder nor HILP has
appointed or granted any proxy which is still in effect with respect to
the Owned Shares. As used in this Agreement, the terms "beneficial
owner", "beneficial ownership", "beneficially owns" or "owns
beneficially", with respect to any securities, refer to the beneficial
ownership of such securities as determined under Rule 13d-3(a) of the
Exchange Act.
(ii) Existence, Power; Binding Agreement. HILP is a limited
partnership duly formed, validly existing and in good standing under
the laws of the jurisdiction of its formation and has all requisite
power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions
contemplated hereby. Stockholder has full power and authority to
execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by each of
Stockholder and HILP and, assuming due authorization, execution and
delivery by Parent, constitutes a legal, valid and binding obligation
of Stockholder and HILP, enforceable against each of Stockholder and
HILP in accordance with its terms. If Stockholder is married, and any
of the Covered Shares constitute community property or otherwise need
spousal or other approval for this Agreement to be legal, valid and
binding, this Agreement has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligation
of, Stockholder's spouse, enforceable in accordance with its terms.
(iii) No Conflicts. Except for the applicable requirements of
the Exchange Act (A) no filing with, and no permit, authorization,
consent or approval of, any state, federal or foreign governmental
authority is necessary on the part of either Stockholder or HILP for
the execution and delivery of this Agreement by either Stockholder or
HILP and the consummation by either Stockholder or HILP of the
transactions contemplated hereby and (B) none of the execution and
delivery of this Agreement by Stockholder and HILP, the consummation by
Stockholder or HILP of the transactions contemplated hereby or
compliance by Stockholder or HILP with any of the provisions hereof
will (1) in the case of HILP violate, any provision of its limited
partnership agreement or similar organizational documents, (2) result
in any breach or violation of, or constitute a default (or an event
which, with notice or lapse of time or both, would become a default)
under,
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or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any property or
asset of Stockholder or HILP pursuant to, any Contract to which
Stockholder or HILP is a party or by which Stockholder or HILP or any
property or asset of Stockholder or HILP is bound or affected or (3)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to each of Stockholder and HILP or any of its
properties or assets, except in the case of (2) or (3) for violations,
breaches or defaults that would not in the aggregate materially impair
the ability of Stockholder or HILP to perform its obligations
hereunder.
(iv) Accredited Investor. Each of Stockholder and HILP is an
"accredited investor" (as defined under the Securities Act) and a
sophisticated investor, is capable of evaluating the merits and risks
of its investments and has the capacity to protect its own interests.
5. Certain Covenants. Each of Stockholder and HILP hereby
covenants and agrees as follows:
(a) No Solicitation. Prior to any termination of this
Agreement, subject to Section 7 hereof (with respect to Stockholder), each of
Stockholder and HILP agrees that neither it nor any of its Representatives
shall, directly or indirectly, solicit (including by way of furnishing
information) any inquiries or the making of any proposal by any Person or entity
(other than Parent or any affiliate of Parent) which constitutes, or could
reasonably be expected to lead to, an Acquisition Proposal. In addition, none of
the Stockholder, HILP or any of their respective affiliates shall, directly or
indirectly, make any proposal which constitutes, or could reasonably be expected
to lead to, an Acquisition Proposal. If Stockholder or HILP receives a bona fide
inquiry or proposal with respect to the sale of Shares, then Stockholder or
HILP, as the case may be, shall promptly inform the Company and Parent of the
terms and conditions, if any, of such inquiry or proposal and the identity of
the Person making it. Stockholder and HILP will immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
parties conducted prior to the date of this Agreement with respect to any of the
foregoing.
(b) Restriction on Transfer, Proxies and Non-Interference.
Except as set forth in Section 8 hereof or in connection with the arrangements
set forth on Schedule I attached to this Agreement, each of Stockholder and HILP
hereby agrees, while this Agreement is in effect, and except as contemplated
hereby, not to (i) sell, transfer, pledge, encumber, assign or otherwise dispose
of, or enter into any Contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Owned Shares or Options, (ii) convert any Covered
Shares into Shares of Company Class A Common Stock, (iii) grant any proxies or
powers of attorney, deposit any Owned Shares into a voting trust or enter into a
voting agreement with respect to any Owned Shares or (iv) knowingly take any
action that would make any representation or warranty of Stockholder or HILP
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder or HILP from performing its obligations under this
Agreement.
(c) Additional Shares. Each of Stockholder and HILP agrees,
while this Agreement is in effect, that at the request of Parent, Stockholder
and HILP shall execute an
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amendment to this Agreement to subject the Shares of Company Class A Common
Stock beneficially owned by Stockholder to Section 1 of this Agreement;
provided, however, that in no event shall either Stockholder or HILP be required
to subject to Section 1 any Shares of Company Class A Common Stock that are
subject to arrangements (described on Schedule I attached to this Agreement)
that would have the effect of restricting such Shares of Company Class A Common
Stock from being so subjected to Section 1 of this Agreement. Each of
Stockholder and HILP agrees, while this Agreement is in effect, to promptly
notify Parent in the event that such restrictions are no longer applicable. Each
of Stockholder and HILP agrees, while this Agreement is in effect, to promptly
notify Parent of the number of any new Shares of which Stockholder or HILP
acquires beneficial ownership after the date hereof (including upon the exercise
of Options).
6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall take such
reasonable further action as may reasonably be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
7. Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary: (a) Stockholder makes no agreement or understanding
herein in any capacity other than in Stockholder's capacity as a record holder
and beneficial owner of Covered Shares, (b) nothing herein shall be construed to
limit or affect any action or inaction by Stockholder acting in such person's
capacity as a director or officer of the Company and in compliance with Section
6.03 of the Merger Agreement, (c) Stockholder may provide information and engage
in discussions with a third party, as and to the extent that the Company is
permitted to do so, if, after the Company shall have received an unsolicited
bona fide written Acquisition Proposal from such third party, the Company Board
has complied with the provisions of Section 6.03(a) of the Merger Agreement, and
(d) Stockholder shall have no liability to Parent or any of its affiliates under
this Agreement or otherwise as a result of any action or inaction by Stockholder
in such person's capacity as a director or officer of the Company and in
compliance with Section 6.03 of the Merger Agreement.
8. Permitted Transfers. Notwithstanding anything in this
Agreement to the contrary, Stockholder may transfer any or all of the Owned
Shares which are Company Class A Common Stock, in accordance with provisions of
applicable Law, to Stockholder's spouse, ancestors, descendants or any trust
(controlled by Stockholder) for any of their benefit or to a charitable trust
(controlled by Stockholder), or up to 500,000 Shares of Class A Common Stock to
a charitable foundation (which transfer shall not be subject to the following
proviso); provided, however, that, prior to and as a condition to the
effectiveness of such transfer, each Person to which any of such Owned Shares or
any interest in any of such Owned Shares is or may be transferred shall have
executed and delivered to Parent a counterpart of this Agreement pursuant to
which such Person shall be bound by all of the terms and provisions of this
Agreement, and shall have agreed in writing with Parent to hold such Owned
Shares or interest in such Owned Shares subject to all of the terms and
provisions of this Agreement. For the sake of clarity, this Section 8 shall not
apply in respect of any of the Covered Shares.
9. No Control. Nothing contained in this Agreement shall give
Parent the right to control or direct the Company or the Company's operations.
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10. Amendment. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
11. Non-survival of Representations and Warranties. The
respective representations and warranties of Stockholder, HILP and Parent
contained herein shall not survive the closing of the transactions contemplated
hereby and by the Merger Agreement.
12. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing in the English language and shall
be deemed duly given (a) on the date of delivery if delivered personally, (b) on
the first business day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the fifth business day
following the date of mailing if delivered by registered or certified mail
(postage prepaid, return receipt requested) or (d) if sent by facsimile
transmission, when transmitted and receipt is confirmed. All notices hereunder
shall be delivered to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 12):
if to Parent:
Baton Holdings Inc.
c/o Blackstone Real Estate Partners IV L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxx Xxxxx
Xxxxxxx Xxxxx
if to Stockholder or HILP:
H. Xxxxx Xxxxxxxx Xxxxxxxx Holdings Inc.
000 X. Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx
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Xxxxxxxx Holdings Inc.
000 X. Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
13. 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 the transactions contemplated hereby 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 transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
14. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both
written and oral, among the parties hereto with respect to the subject matter
hereof and (b) shall not be assigned by operation of law or otherwise, except
that Parent may assign all or any of its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of Parent; provided, however, that no
such assignment shall relieve the assigning party of its obligations hereunder
if such assignee does not perform such obligations.
15. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties hereto
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
16. 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. All Actions arising out
of or relating to this Agreement shall be heard and determined exclusively in
the Delaware Court of Chancery. The parties hereto hereby (a) submit to the
exclusive jurisdiction of the Delaware Court of Chancery for the purpose of any
Action arising out of or relating to this Agreement brought by any party hereto,
and (b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named court, that its property is exempt or immune
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement or the
transactions contemplated hereby may not be enforced in or by the above-named
court. This Agreement does not involve less than $100,000, and the parties
intend that 6 Del.C. ss.2708 shall apply to this Agreement.
17. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
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18. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same.
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IN WITNESS WHEREOF, Parent, Stockholder and HILP have caused
to be executed or executed this Agreement as of the date first written above.
BATON HOLDINGS INC.
By:/s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: President
/s/ H. Xxxxx Xxxxxxxx
----------------------------------------
H. Xxxxx Xxxxxxxx
XXXXXXXX INVESTMENTS LIMITED PARTNERSHIP
By: Xxxxxxxx Investments, Inc.
its general partner
By:/s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President
