VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
February 10, 2005, between and among FIRST MONTUAK FINANCIAL CORP., a New Jersey
corporation (the "COMPANY"), and the undersigned stockholder (the "STOCKHOLDER")
of OLYMPIC CASCADE FINANCIAL CORPORATION, a Delaware corporation ("PARENT"). All
capitalized terms herein not otherwise defined shall have the meaning ascribed
to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the
date hereof (the "MERGER Agreement") by and among Parent, MERGER SUB, a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and the
Company, MERGER SUB is merging with and into the Company (the "MERGER") and the
Company, as the surviving corporation of the Merger, will thereby become a
wholly owned subsidiary of Parent;
WHEREAS, the Stockholder is the beneficial owner (as defined in Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT")) of shares of the outstanding (i) common stock, $0.02 par value per share,
and (ii) Series A Preferred Stock, $0.01 par value per share, of Parent in the
amounts indicated on the final page of this Agreement (the "SHARES"); and
WHEREAS, in consideration of the execution of the Merger Agreement by
Company, the Stockholder agrees (i) not to transfer or otherwise dispose of any
of such Stockholder's Shares or New Shares (as defined below), or any and all
other shares or securities of Parent issued, issuable, exchanged or exchangeable
in respect of any Shares or New Shares (collectively with respect to each
Stockholder, the "SECURITIES"), and (ii) agrees to vote such Stockholder's
Securities as set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
1.1 Transfer and Encumbrance. The Stockholder agrees to be
subject to such Stockholder's Proxy (as defined in Section 3) and agrees that it
will not take or permit any action to, directly or indirectly, (i) transfer,
sell, assign, give, pledge, exchange or pledge, or otherwise dispose of or
encumber the Stockholder's Securities prior to the Expiration Date, or to make
any offer or agreement relating thereto, at any time prior to the Expiration
Date; (ii) deposit any of the Stockholder's Securities into a voting trust or
enter into a voting agreement or arrangement with respect to such Stockholder's
Securities or grant any proxy or power of attorney with respect thereto, in each
case, in a manner that conflicts or may conflict with the Stockholder's
obligations hereunder, or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer, exchange or other disposition of or transfer of any
interest in or the voting of any of the Stockholder's Securities, in each case,
in a manner that conflicts or may conflict with the Stockholder's obligations
hereunder. As used herein, the term "EXPIRATION DATE" shall mean the earlier to
occur of (i) the Effective Time (as such terms is defined in the Merger
Agreement), and (ii) the date on which the Merger Agreement is terminated in
accordance with its terms (including any extensions to the Merger Agreement, as
provided for therein).
1.2 New Shares. The Stockholder agrees that any shares or
securities of the capital stock of Parent that the Stockholder purchases or with
respect to which the Stockholder otherwise acquires beneficial ownership after
the date of this Agreement and prior to the Expiration Date (the "NEW SHARES"),
and any and all other shares or securities of Parent issued, issuable, exchanged
or exchangeable in respect of any New Shares, shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. AGREEMENT TO VOTE. At every meeting of the stockholders of Parent
called with respect to any of the following, and at every adjournment thereof,
and on every action or approval by written consent of the stockholders of Parent
with respect to any of the following, the Stockholder agrees to vote such
Stockholder's Securities: (i) in favor of approval of the Merger Agreement, the
Merger, the transactions contemplated thereby and any matter that could
reasonably be expected to facilitate the Merger; (ii) in favor of any
alternative structure as may be agreed upon by Parent and the Company to effect
the acquisition by Parent of the Company or of control of the Company; provided
that such alternative structure is on terms in the aggregate no less favorable
to Parent's stockholders than the terms of the Merger set forth in the Merger
Agreement; and (iii) against the consummation of any Superior Proposal or any
other action, proposal, agreement or transaction (other than the Merger, the
Merger Agreement or the transactions contemplated thereby) that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of Parent under the Merger Agreement, which could result in any of the
conditions to Parent's obligations under the Merger Agreement not being
fulfilled or which would be inconsistent with the Merger or any other
transaction contemplated by the Merger Agreement. Prior to the Expiration Date,
the Stockholder will not enter into any agreement or understanding with any
person or entity to vote or give instructions in any manner inconsistent with
this Section 2. This Agreement is intended to bind the Stockholder as a
stockholder of Parent only with respect to the specific matters set forth
herein.
3. PROXY. Concurrently with the execution of this Agreement, the
Stockholder agrees to deliver to the Company a proxy in the form attached hereto
as Exhibit A (the "PROXY"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, covering the total number
of Securities beneficially owned or as to which beneficial ownership is acquired
(as such term is defined in Rule 13d-3 under the Exchange Act) by such
Stockholder. The Proxy shall not be terminated by any act of the Stockholder or
by operation of law, whether by the death or incapacity of the Stockholder or by
the occurrence of any other event or events (including, without limitation, the
termination of any trust or estate for which the Stockholder is acting as a
fiduciary or fiduciaries or the dissolution or liquidation of any corporation or
partnership). If between the execution hereof and the Expiration Date, the
Stockholder should die or become incapacitated, or if any trust or estate
holding the Securities should be terminated, or if any corporation or
partnership holding the Securities should be dissolved or liquidated, or if any
other such similar event or events shall occur before the Expiration Date,
certificates representing the Securities shall be delivered by or on behalf of
the Stockholder in accordance with the terms and conditions of the Merger
Agreement and this Agreement, and actions taken by the Company hereunder shall
be as valid as if such death, incapacity, termination, dissolution, liquidation
or other similar event or events had not occurred, regardless of whether or not
the Company has received notice of such death, incapacity, termination,
dissolution, liquidation or other event.
4. NO OPPOSITION. The Stockholder agrees not to take, or cause to be
taken, any action inconsistent with the consummation of the Merger and the
transactions contemplated by the Merger Agreement. The Stockholder agrees to
take, or cause to be taken, all actions necessary to facilitate, encourage or
otherwise support the Merger and the transactions contemplated by the Merger
Agreement.
5. ACKNOWLEDGEMENT. The parties acknowledge and agree that neither the
Company, nor the Company's successors, assigns, subsidiaries, divisions,
employees, officers, directors, stockholders, agents and affiliates shall owe
any duty to, whether in law or otherwise, or incur any liability of any kind
whatsoever, including without limitation, with respect to any and all claims,
losses, demands, causes of action, costs, expenses (including reasonable
attorney's fees) and compensation of any kind or nature whatsoever to the
Stockholder in connection with or as a result of any voting (or refrain from
voting) by the Company of the Securities subject to the Proxy hereby granted to
the Company at any annual, special or other meeting or action or the execution
of any consent of the stockholders of Parent. The parties acknowledge that,
pursuant to the authority hereby granted under the Proxy, the Company may vote
the Securities in furtherance of its own interests, and the Company is not
acting as a fiduciary for the Stockholder.
6. INTENTIONALLY DELETED
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. The
Stockholder hereby represents, warrants and covenants to the Company that:
7.1 Ownership. The Stockholder has good and marketable title
to, and is the sole legal and beneficial owner of the Shares, in each case free
and clear of all Liens. As of the date hereof, the Stockholder does not
beneficially own any shares or securities of the capital stock of Parent other
than such Stockholder's Shares.
7.2 Authorization. The Stockholder has all requisite power and
authority to execute and deliver this Agreement and the Proxy and to consummate
the transactions contemplated hereby and thereby and has sole voting power and
sole power of disposition, with respect to all of the Shares with no
restrictions on its voting rights or rights of disposition pertaining thereto.
The Stockholder has duly executed and delivered this Agreement and this
Agreement is a legal, valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
7.3 No Violation. Neither the execution, delivery and
performance of this Agreement or the Proxy nor the consummation of the
transactions contemplated hereby and thereby will (i) require the Stockholder to
file or register with, or obtain any material permit, authorization, consent or
approval of, any governmental agency, authority, administrative or regulatory
body, court or other tribunal, foreign or domestic, or any other entity; (ii)
violate, or cause a breach of or default (or an event which with notice or the
lapse of time or both would become a default) under, any contract, agreement or
understanding, any statute or law, or any judgment, decree, order, regulation or
rule of any governmental agency, authority, administrative or regulatory body,
court or other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon the Stockholder; or (iii) cause the acceleration
of any obligation under or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrances on any property or asset of the Stockholder pursuant to any
provision of any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree to which the
Stockholder is subject or by which the Stockholder or any of the Stockholder's
properties or assets are bound. No proceedings are pending which, if adversely
determined, will have a material adverse effect on any ability to vote or
dispose of any of the Shares. The Stockholder has not previously assigned or
sold any of the Shares to any third party.
8. FURTHER ASSURANCES. The Stockholder hereby covenants and agrees to
execute and deliver, or cause to be executed or delivered, such additional
proxies, consents, waivers and other instruments, and undertake any and all
further action, necessary or desirable, in the reasonable opinion of the
Company, to carry out the purpose and intent of this Agreement and to consummate
the Merger under the terms of the Merger Agent or any other agreement to which
such Stockholder is a party.
9. TERMINATION. This Agreement and the Proxies delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date; provided that nothing herein shall relieve any party from
liability hereof for breaches of this Agreement prior to the Expiration Date or
for breaches of Section 6 after the Expiration Date.
10. MISCELLANEOUS.
10.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of this terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
10.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and insure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other; provided,
however, that the Company may freely assign its rights to another director or
indirect wholly owned subsidiary of the Company without such prior written
approval but no such assignment shall relieve the Company of any of its
obligations hereunder. Any purported assignment without such consent shall be
void.
10.3 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
10.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that the Company will be irreparably harmed and that there
will be no adequate remedy at law for a violation of any of the covenants or
agreements of the Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to the Company upon such
violation, the Company shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to the Company at law or in equity.
10.5 Notices. All notices that are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or national
overnight courier service, transmitted by telecopy or mailed by registered or
certified mail, postage prepaid (effective when delivered by hand or telecopy,
one day after dispatch by overnight courier, and three business days after
dispatch by mail), as follows:
(a) if to the Company, to:
First Montauk Financial Corp.
Parkway 109 Office Center
000 Xxxxxx Xxxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile:
Att: Chief Executive Officer
with a copy to:
Xxxxxxxxx & DiGioia, LLP
00 Xxxxxxx, 00xx Xxxxx
Xxx Xxxx XX 00000
Att.: Xxxxxx XxXxxxx, Esq.
(b) if to the Stockholder, to the address set forth
beneath such Stockholder's signature below.
10.6 Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the internal laws of the State of
Delaware without giving effect to any choice or conflict of law provision, rule
or principle (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
10.7 Entire Agreement. This Agreement, the Proxy and the
Merger Agreement contain the entire understanding of the parties in respect of
the subject matter hereof, and supersede all prior negotiations and
understandings between the parties with respect to such subject matters.
10.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
10.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
10.10 Jurisdiction. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought
exclusively in the state or federal court of the State of Delaware, and each of
the parties hereby consents to the jurisdiction of such court (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in this Section 10.10 shall be
deemed effective service of process on such party.
10.11 No Limitation on Actions of the Stockholder as Director.
Notwithstanding anything to the contrary in this Agreement, in the event the
Stockholder is an officer or director of Parent, nothing in this Agreement is
intended or shall be construed to require the Stockholder, in the Stockholder's
capacity as a officer or director of Parent, to act or fail to act in accordance
with the Stockholder's fiduciary duties in such capacity.
10.12 Remedies Not Exclusive. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by either party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
10.13 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OT OF
OR RELATED TO THIS AGREEMENT, THE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY.
10.14 Expenses. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement or the Proxy, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
10.15 Disclosure. The Stockholder hereby authorizes the
Company to publish or disclosure in any the Company SEC Reports, including,
without limitation, a Schedule 13D, its identity and the nature of its
commitments, arrangements and understandings under this Agreement.
10.16 Consent of Spouse. If the Stockholder is married, the
Stockholder agrees to deliver to the Company the Consent of Spouse attached
hereto as Exhibit B on the date hereof.
10.17 Legend on Share Certificates. Each certificate
representing any Securities shall be endorsed by Parent with a legend reading
substantially as follows:
"THE RIGHT TO VOTE THE SHARES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN A VOTING AGREEMENT, A COPY OF
WHICH IS ON FILE AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS."
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
FIRST MONTAUK FINANCIAL CORP.
By:____________________________________
Title:_________________________________
STOCKHOLDER
By:____________________________________
Stockholder's Address for Notice:
_______________________________________
_______________________________________
_______________________________________
Shares beneficially owned:
_______ shares of Parent Common Stock
_______ shares of the Parent Series A
Preferred
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
PROXY
TO VOTE STOCK OF
THE COMPANY
The undersigned stockholder of OLYMPIC CASCADE FINANCIAL CORPORATION, a
Delaware corporation ( "PARENT"), hereby irrevocably (to the full extent
permitted by Section 212 of the Delaware General Corporation Law, except as
provided below) appoints Xxxxxx Xxxxxxx of FIRST MONTUAK FINANCIAL CORP., a New
Jersey corporation ("COMPANY"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of Parent that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of Parent
issued, issuable, exchanged or exchangeable in respect thereof on or after the
date hereof (collectively, the "SHARES") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned stockholder of Parent as
of the date of this Proxy are listed on the final page of this Proxy. Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares until
after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law), is coupled with an interest and is granted
pursuant to that certain Voting Agreement dated as of February 10, 2005, by and
among the Company and the undersigned stockholder (the "VOTING AGREEMENT"), and
is granted in consideration of the Company entering into that certain Agreement
and Plan of Merger, dated as of February 10, 2005 (the "MERGER AGREEMENT"), by
and among the Company, Parent and MERGER SUB, a Delaware corporation and wholly
owned subsidiary of Parent ("MERGER SUB"). The Merger Agreement provides for the
merger of MERGER SUB with and into the Company (the "MERGER") with the Company
as the surviving corporation. As used herein, the term "EXPIRATION DATE" shall
mean the earlier to occur of (i) the Effective Time (as such terms is defined in
the Merger Agreement), and (ii) the date on which the Merger Agreement is
terminated in accordance with its terms (including any extensions to the Merger
Agreement, as provided for therein).
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General Corporation Law), at
every annual, special or other meeting or action of the stockholders of Parent,
as applicable, or at any adjournment thereof and in every written consent in
lieu of such meeting: (i) in favor of approval of the Merger Agreement, the
Merger, the transactions contemplated thereby and any matter that could
reasonably be expected to facilitate the Merger; (ii) in favor of any
alternative structure as may be agreed by Parent and the Company to effect the
acquisition by Parent of the Company or of control of the Company; provided that
such alternative structure is on terms in the aggregate no less favorable to
Parent's stockholders than the terms of the Merger set forth in the Merger
Agreement; and (iii) against the consummation of any Superior Proposal or any
other action, proposal, agreement or transaction (other than the Merger, the
Merger Agreement or the transactions contemplated thereby) that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of Parent under the Merger Agreement, which could result in any of the
conditions to the Parent's obligations under the Merger Agreement not being
fulfilled or which would be inconsistent with the Merger or any other
transaction contemplated by the Merger Agreement. The attorneys and proxies
named above may not exercise this Proxy on any other matter except as provided
above. The undersigned stockholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law). This Proxy shall terminate, and be of no
further force and effect, automatically upon the Expiration Date.
Dated: February 10, 2005
-------------------------------------
(Signature of Stockholder)
-------------------------------------
(Print Name of Stockholder)
Shares beneficially owned:
_______ shares of Parent Common Stock
_______ shares of the Parent Series A
Preferred
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EXHIBIT B
CONSENT OF SPOUSE
I, __________________________, spouse of ____________ ("Stockholder"),
have read and hereby approve the foregoing Voting Agreement. In consideration of
the benefits to which the Stockholder is entitled under the Voting Agreement, I
hereby agree to be irrevocably bound by the Voting Agreement and further agree
that any community property or other such interest shall be similarly bound by
the Voting Agreement. I hereby appoint my spouse as my attorney-in-fact with
respect to any amendment or exercise of any rights under the Voting Agreement.
-----------------------------
Spouse of Stockholder
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