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EXHIBIT 99.2
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:
-----------------------------------
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
ehalf of Xxxxxxxx X. Xxxxxxxx, and jointly with his
spouse, Xxxxx X. Xxxxxxxx
-------------------------------------------------
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:
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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
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AGREED AND ACCEPTED
XXXXXX XXXXXXX, INC.,
A DELAWARE CORPORATION
By:
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Xxxxxx X. Xxxxxx,
President
and Chief Executive Officer
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APPENDIX A
Approximate
Percentage
Number of of Outstanding
Shares of Red Xxxxxx Number of
Common Stock Common Stock Shares Pledged
------------ ------------ --------------
Hilltop Partners L.P. (1) 1,156,829 14.6% 0
Hilltop Offshore, Ltd. (1) 267,300 3.4 0
Chesed Congregations of America(2) 42,800 * 0
United Congregation Mesorah(2) 288,900 3.6 0
The Xxxxxxx Grandchildren Trust(2) 28,500 * 0
The Xxxxxxx Family Trust(2) 99,000 1.2 0
F/B/O Xxx Xxxxxxx, XXX(2) 188,800 2.4 0
Xxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx (3) 587,182 2.8 0
Equity Resource Group of Indian River
County, Inc. 58,704 0
Confidential Investment Services, Inc. 77,000 * 0
Puttick Enterprises 637,000 8.0 0
Xxxxxxx X. Xxxxxxx 458,000 5.8 0
S. Xxxx Xxxxxx, Xx. 243,300 3.1 0
T. Xxxxx Xxxxxx 215,000 2.7 0
Xxxxx X. Xxxx 275,321 3.5 0
Xxxxxxx X. Xxxxxx 136,000 1.7 0
Xxxxx X. XxXxxxx 56,500 * 0
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TOTAL 4,816,136 60.2%
*Less than 1%
(1) Shares beneficially owned by Xxxxxx Capital Management, Inc., as general
partner
(2) Shares beneficially owned by Xxxxxx Capital Management, Inc., as account
custodian and attorney-in-fact
(3) Shares owned individually, jointly, as trustee and/or as custodian for
children
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