EXHIBIT 99.5
VOTING AGREEMENT
BY AND BETWEEN
XXXX XXXXXXX ENTERPRISES, LLC
AND
XXXXXX X. XXXXXXX, TRUSTEE
Dated as of January 11, 2005
1
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of January 11, 2005 (the
"Agreement"), by and among Xxxxxx X. Xxxxxxx, as trustee of each of the
following trusts: (i) the FBO Xxxxx Xxxxxx Trust 1 created by instrument dated
December 23, 1992, (ii) the FBO Xxxxxxxx Xxxxxx Trust 1 created by instrument
dated December 23, 1992, (iii) the FBO Xxxxxxx Xxxxx Xxxxxx III Trust 1 created
by instrument dated December 23, 1992, (iv) the FBO Xxxxx Xxxxxx Trust 2 created
by instrument dated December 23, 1992, (v) the FBO Xxxxxxxx Xxxxxx Trust 2
created by instrument dated December 23, 1992 and (vi) the FBO Xxxxxxx Xxxxx
Xxxxxx III Trust 2 created by instrument dated December 23, 1992 (collectively,
the "Stockholders"), and Xxxx Xxxxxxx Enterprises, LLC, a Delaware limited
liability company (the "Investor").
WHEREAS, as of the date hereof, the Stockholders are the
record holders and beneficial owners of an aggregate of 906,810 shares of Common
Stock (the "Original Shares", and the Original Shares, together with any other
shares of capital stock of the Company or other voting securities of the Company
acquired (of record or beneficially) by any Stockholder during the term of this
Agreement (including through the exercise of any warrants, stock options or
similar instruments), being collectively referred to herein as the "Subject
Shares");
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholders.
Each of the Stockholders hereby represents and warrants to the Investor as
follows:
(a) Enforceability. Such Stockholder has all necessary power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement has been duly
authorized, executed and delivered by such Stockholder and constitutes a valid
and binding obligation of each such Stockholder, enforceable against such
Stockholder in accordance with its terms.
(b) No Conflict. The execution and delivery of this Agreement
by such Stockholder does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, (A) conflict with, or result in any violation of, any United
States or foreign Law (as hereinafter defined) applicable to such Stockholder or
by which any property or asset of such Stockholder is bound or affected or (B)
result in any breach of, or constitute a default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
amendment, cancellation or acceleration of any obligation or to a loss of a
material benefit under, or result in the creation of any liens in or upon any of
the properties or assets of such Stockholder, pursuant to any loan or credit
agreement, note, bond, mortgage, indenture, lease, license, sublease, easement,
covenant, condition, restriction, contract, instrument, permit, concession,
franchise license or other instrument or obligation, including the trust
agreements or similar instruments governing each of the
1
Stockholders. As used herein, the term "Law" means any statute, law (including
common law), ordinance, rule or regulation.
(c) Consents, Approvals, Etc. No consent, approval, order or
authorization of, or registration, declaration or filing with, or notification
to, any governmental authority or body is required by or with respect to such
Stockholder in connection with the execution and delivery of this Agreement by
such Stockholder or the consummation by such Stockholder of the transactions
contemplated by this Agreement, except the filing with the Securities and
Exchange Commission (the "SEC") of such reports under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as may be required in connection
with this Agreement and the transactions contemplated hereby.
(d) Absence of Litigation. As of the date of this Agreement,
there is no suit, action or proceeding ("Proceeding") pending or, to the
knowledge of such Stockholder, threatened against such Stockholder, or any
property or asset of such Stockholder, before any governmental authority or body
that seeks to delay or prevent the consummation of the transactions contemplated
by this Agreement.
(e) The Subject Shares. Such Stockholder is the record and
beneficial owner (as defined in Rule 13d-3 under the Exchange Act, which meaning
will apply for all purposes of this Agreement) of, and has good and marketable
title to Original Shares shown as owned by such Stockholder on Schedule A
hereto, free and clear of any and all liens, claims and encumbrances, except as
provided in Section 2(d). Other than as set forth on Schedule A hereto, such
Stockholder does not own (of record or beneficially) any shares of capital stock
of the Company or any options, warrants, rights or other similar instruments to
acquire any capital stock or other voting securities of the Company. Such
Stockholder has the sole right to vote and Transfer (as hereinafter defined) the
Original Shares shown as owned by such Stockholder on Schedule A hereto, and
such Stockholder is not subject to any proxies, voting trusts or other
agreements, understandings, arrangements or restrictions with respect to the
voting or the Transfer of the Subject Shares, except as set forth in Sections 4
and 5.
SECTION 2. Representations and Warranties of the Investor. The
Investor represents and warrants to each Stockholder as follows:
(a) Enforceability. This Agreement has been duly authorized,
executed and delivered by the Investor and constitutes a valid and binding
obligation of the Investor, enforceable against the Investor in accordance with
its terms.
2
(b) No Conflict. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated by this Agreement
and compliance with the provisions of this Agreement shall not conflict with, or
result in any violation of, any United States or foreign Law applicable to the
Investor or by which any property or asset of the Investor is bound or affected.
(c) Consents, Approvals, Etc. No consent, approval, order or
authorization of, or registration, declaration or filing with, or notification
to, any governmental authority or body is required by or with respect to the
Investor in connection with the execution and delivery of this Agreement by the
Investor or the consummation by the Investor of the transactions contemplated by
this Agreement, except the filing with the SEC of such reports under the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby.
(d) Pledge of Original Shares. The Investor has been advised
that the Original Shares have been pledged by the Stockholders in favor of
Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx pursuant to certain security agreements
(the "Security Agreements").
SECTION 3. Covenants of the Stockholder. Each Stockholder
covenants and agrees that, during the period commencing on the date hereof and
ending on the earlier of (i) two years after the filing by or against the
Company of a petition under Chapter 11 or any other applicable section or
chapter of the United States Bankruptcy Code, as amended from time to time (the
"Bankruptcy Code"), or (ii) the effective date of any plan or reorganization
approved by the bankruptcy court in any bankruptcy proceedings commenced against
the Company under Chapter 11 or any other applicable section of the Bankruptcy
Code:
(a) Voting; Investor Instructions. At any meeting of the
stockholders of the Company called to vote upon any matter whatsoever submitted
to a vote of the stockholders of the Company (a "Covered Matter"), or at any
adjournment thereof, or in any other circumstances upon which a vote, consent or
other approval with respect to a Covered Matter is sought by the Company, the
Investor or any other Person (as hereinafter defined), such Stockholder shall
vote (or cause to be voted) the Subject Shares in accordance with the written
instructions delivered to such Stockholder by the Investor. The Investor may
deliver to such Stockholder written instructions of the type contemplated by the
immediately preceding sentence at any time or from time to time, and if
requested the Stockholder shall acknowledge receipt thereof.
(b) Voting; Frustrating Transactions. At any meeting of the
stockholders of the Company, or at any adjournment thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, unless
otherwise instructed by the Investor pursuant to paragraph (a) above, such
Stockholder shall vote (or cause to be voted) all of the Subject Shares against
any amendment of the Company's certificate of incorporation or by-laws or other
proposal, action or transaction involving the Company or any of its subsidiaries
or any of its stockholders, which amendment or other proposal, action or
transaction would in any manner impede, frustrate, prevent or delay the
consummation of the transactions contemplated by this Agreement
3
(collectively, "Frustrating Transactions"). Such Stockholder shall not commit to
or agree to take any action inconsistent with the foregoing or that would
otherwise facilitate a Frustrating Transaction.
(c) Transfer Restrictions. Such Stockholder shall not (i)
sell, transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or consent to or permit any Transfer of, any Subject
Shares or any interest therein, or enter into any loan or credit agreement,
bond, debenture, note, mortgage, indenture, lease or other contract, commitment,
agreement, option, instrument, arrangement, understanding, obligation or
undertaking, with respect to the Transfer (including any profit sharing or other
derivative arrangement) of any Subject Shares or any interest therein, to any
individual, corporation, partnership, limited liability company, association,
joint stock company, trust, joint venture, unincorporated organization or
governmental entity or department, agency or political subdivision thereof
(collectively, a "Person"), in each case (i) except as required by the express
terms of this Agreement and (ii) except for a Transfer to Xxxxxxx X. Xxxxxx or
Xxxxxxx X. Xxxxxx upon foreclosure of the pledge made pursuant to the Security
Agreements, (ii) enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, with respect to any Subject Shares and shall not commit
or agree to take any of the foregoing actions, other than pursuant to this
Agreement or (iii) take any other action that would in any way restrict, limit
or interfere with the performance by such Stockholder of its obligations under
this Agreement or the consummation of the transactions contemplated hereby. Such
Stockholder shall not, nor shall such Stockholder permit any entity under their
control to, deposit any Subject Shares in a voting trust.
SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Grant of Proxy. Each Stockholder hereby irrevocably grants
to, and appoints, the Investor and any individual designated in writing by the
Investor, as such Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to vote
all of his or its Subject Shares, or grant any consent or approval in respect of
such Subject Shares with respect to any Covered Matter.
(b) Revocation of Other Proxies. Each Stockholder represents
that any proxies heretofore given in respect of his or its Subject Shares are
not irrevocable and that all such proxies are hereby revoked.
(c) Proxy Coupled with an Interest. Each Stockholder hereby
affirms that the irrevocable proxy provided for in this Section 4 is given to
secure the performance of the duties of the Stockholder under this Agreement.
Each Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest is intended to be irrevocable in accordance with the provisions
of Section 212 of the Delaware General Corporation Law. If for any reason the
proxy granted by any Stockholder herein is not binding, effective or
irrevocable, then such Stockholder agrees to execute any additional agreement or
document required to make such proxy binding, effective and irrevocable.
4
Each Stockholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof.
SECTION 5. Further Assurances. Each Stockholder shall use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement. No Stockholder shall commit or agree to take any
action inconsistent with the transactions contemplated by this Agreement.
Without limiting the generality of the foregoing, each Stockholder shall, from
time to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as the Investor
may request for the purpose of effectuating the matters covered by this
Agreement, including with respect to the grant of the proxy set forth in Section
4.
SECTION 6. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to his or its Subject
Shares and shall be binding upon any Person to which legal or beneficial
ownership of the Subject Shares shall pass, whether by operation of law or
otherwise, including such Stockholder's heirs, guardians, administrators or
successors. If requested by the Investor, such Stockholder shall cause each
certificate representing his or its Subject Shares to be inscribed with a legend
to such effect. In the event of any stock split, stock dividend,
reclassification, merger, reorganization, recapitalization or other change in
the capital structure of the Company affecting the capital stock of the Company,
the number of Original Shares and the number of applicable Subject Shares shall
be adjusted appropriately. In addition, in the event that any Stockholder
acquires any additional shares of capital stock of the Company or other voting
securities of the Company (including through the exercise of any warrants, stock
options or similar instruments), the number of applicable Subject Shares shall
be adjusted appropriately. This Agreement and the representations, warranties,
covenants, agreements and obligations hereunder shall attach to any additional
shares of capital stock of the Company or other voting securities of the Company
issued to or acquired by the Stockholder (including through the exercise of any
warrants, stock options or similar instruments).
SECTION 7. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties hereto
without the prior written consent of each of the other parties; provided,
however, that the Investor shall be entitled to assign this Agreement to any
Person controlled by Xxxx Xxxxxxx without the prior written consent of any other
party. Any purported assignment in violation of this Section 7 shall be null and
void. Subject to the preceding sentences of this Section 7, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
SECTION 8. Termination. This Agreement and the proxy granted
hereby shall terminate (i) upon the earlier of (1) two years after the filing by
or against the Company of a petition under Chapter 11 or any other applicable
section or chapter of
5
the Bankruptcy Code or (2) the effective date of any plan or reorganization
approved by the bankruptcy court in any bankruptcy proceedings commenced against
the Company under Chapter 11 or any other applicable section of the Bankruptcy
Code, or (ii) if a petition under Chapter 11 or any other applicable section or
chapter of the Bankruptcy Code has not been filed by or against the Company,
April 10, 2005; provided, however, that termination of this Agreement shall not
prevent any party hereunder from seeking any remedies (at law or in equity)
against any other party hereto for such party's breach of any of the terms of
this Agreement prior to termination.
SECTION 9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be given by delivery in person, by registered or
certified mail (return receipt requested and with postage prepaid thereon) or by
cable, telex or facsimile transmission to the parties at the following addresses
(or at such other address as either party shall have furnished to the other in
accordance with the terms of this Section 9(b)):
if to the Investor:
Xxxx Xxxxxxx Enterprises, LLC
0000 X. Xxxxxx #000
Xxx Xxxxx, Xxxxxx 00000
Facs.: (000) 000-0000
with copies to:
Xxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facs.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
if to the Stockholders:
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
with copies to:
Xxxxx & Xxxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
6
All notices and other communications hereunder that are addressed as provided in
or pursuant to this Section 9(b) shall be deemed duly and validly given (a) if
delivered in person, upon delivery, (b) if delivered by registered or certified
mail (return receipt requested and with postage paid thereon), 72 hours after
being placed in a depository of the United States mails and (c) if delivered by
cable, telex or facsimile transmission, upon transmission thereof and receipt of
the appropriate answerback.
(c) Interpretation. When a reference is made in this Agreement
to a party or to a Section or Schedule, such reference shall be to a party to,
or a Section of or a Schedule to, this Agreement unless otherwise indicated. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein," "hereunder" and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms.
(d) Counterparts; Effectiveness. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; and (ii) other than with respect to the persons specified
as proxies in Section 4, is not intended to confer upon any Person other than
the parties any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to any principles of conflicts of law of such state.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or 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 shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
7
(h) Non-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.
[Signature page follows]
8
IN WITNESS WHEREOF, each party hereto has signed this
Agreement, all as of the date first written above.
THE INVESTOR:
XXXX XXXXXXX ENTERPRISES, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------
Title: President
-------------------------------------
THE STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx, as trustee as trustee of
each of the following trusts: (i) the FBO
Xxxxx Xxxxxx Trust 1 created by instrument
dated December 23, 1992, (ii) the FBO
Xxxxxxxx Xxxxxx Trust 1 created by
instrument dated December 23, 1992, (iii)
the FBO Xxxxxxx Xxxxx Xxxxxx III Trust 1
created by instrument dated December 23,
1992, (iv) the FBO Xxxxx Xxxxxx Trust 2
created by instrument dated December 23,
1992, (v) the FBO Xxxxxxxx Xxxxxx Trust 2
created by instrument dated December 23,
1992, and (vi) the FBO Xxxxxxx Xxxxx Xxxxxx
III Trust 2 created by instrument dated
December 23, 1992
The undersigned have executed this Agreement for the purpose of indicating that
(i) they consent to the execution, delivery and performance of this Agreement by
the Stockholders and waive the application of any provision of the Security
Agreements that may prohibit or otherwise adversely affect the performance by
the Stockholders of their obligations hereunder and (ii) in the event of a
foreclosure on any of the Subject Shares pursuant to the Security Agreements,
they agree to be bound by the provisions of this Agreement as fully and to the
same extent as if they were parties hereto.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
9
SCHEDULE A
SHARE OWNERSHIP
STOCKHOLDER NAME NUMBER OF SHARES OWNED
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxx Xxxxxx Trust 1
U/A dated 12/23/92
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxxxxx Xxxxxx Trust 1
U/A dated 12/23/92
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxxxx Xxxxx Xxxxxx III Trust 1
U/A dated 12/23/92
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxx Xxxxxx Trust 2
U/A dated 12/23/92
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxxxxx Xxxxxx Trust 2
U/A dated 12/23/92
Xxxxxx X. Xxxxxxx TTEE 151,135
FBO Xxxxxxx Xxxxx Xxxxxx III Trust 2 --------
U/A dated 12/23/92
906,810
