VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") is made and entered into as of
June 27, 2005, between and among FIRST MONTUAK FINANCIAL CORP., a New Jersey
corporation ("FMFK"), and the undersigned stockholder (the "Stockholder") of
OLYMPIC CASCADE FINANCIAL CORPORATION, a Delaware corporation ("OLYMPIC"). 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 Amended and Restated Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement") by and among OLYMPIC, OLY
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of FMFK
("MERGER SUB"), and FMFK, MERGER SUB is merging with and into OLYMPIC (the
"Merger") and OLYMPIC, as the surviving corporation of the Merger, will thereby
become a wholly owned subsidiary of FMFK;
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/or
(ii) Series A Preferred Stock, $0.01 par value per share, of OLYMPIC 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
FMFK, and as a condition to such execution, 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 OLYMPIC 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 OLYMPIC 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 OLYMPIC 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 OLYMPIC
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
OLYMPIC 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 OLYMPIC and FMFK to effect the
acquisition of OLYMPIC by FMFK or of control of OLYMPIC; provided that such
alternative structure is on terms in the aggregate no less favorable to
OLYMPIC'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 OLYMPIC under the Merger Agreement, which could result in any of
the conditions to OLYMPIC'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 OLYMPIC 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 Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx of FMFK 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 FMFK
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 FMFK 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE COVENANTS AND
AGREMENTS CONTAINED IN THIS AGREEMENT SHALL NOT BE DEEMED TO PROHIBIT THE
STOCKHOLDER, ACTING AS A DIRECTOR OF OLYMPIC (IF APPLICABLE), FROM EXERCISING
HIS FIDUCIARY OBLIGATIONS IN THE EVENT OF A SUPERIOR PROPOSAL WITH RESPECT TO
OLYMPIC
5. Acknowledgement. The parties acknowledge and agree that neither FMFK,
nor FMFK'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 FMFK of the
Securities subject to the Proxy hereby granted to FMFK at any annual, special or
other meeting or action or the execution of any consent of the stockholders of
OLYMPIC. The parties acknowledge that, pursuant to the authority hereby granted
under the Proxy, FMFK may vote the Securities in furtherance of its own
interests, and FMFK 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 FMFK 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 OLYMPIC 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 FMFK, 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 the 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, FMFK may freely assign its rights to another direct or indirect wholly
owned subsidiary of FMFK without such prior written approval but no such
assignment shall relieve FMFK 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 FMFK 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 FMFK upon such violation, FMFK shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to FMFK 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 FMFK or MERGER SUB, 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 OLYMPIC, 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 OLYMPIC, 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 FMFK to publish
or disclosure in any FMFK 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 FMFK 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 OLYMPIC 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
_________________________________________
Xxxx Xxxxxxxxxx
Shares beneficially owned:
46,300 shares of OLYMPIC Common Stock
15,386 shares of OLYMPIC Common Stock
issuable upon the exercise of warrants
367,000 shares of OLYMPIC Common Stock
issuable upon the exercise of options
ONE XXXXX LLC
By:______________________________________
Xxxx Xxxxxxxxxx, Manager
Shares beneficially owned:
9,422 shares of OLYMPIC Series A
Preferred
Stockholders' Address for Notice:
c/o Olympic Cascade Financial Corporation
000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIGNATURE PAGE TO OLYMPIC SHAREHOLDER VOTING AGREEMENT
EXHIBIT A
PROXY
TO VOTE STOCK OF
OLYMPIC
The undersigned stockholder of OLYMPIC CASCADE FINANCIAL CORPORATION, a
Delaware corporation ( "OLYMPIC"), hereby irrevocably (to the full extent
permitted by Section 212 of the Delaware General Corporation Law, except as
provided below) appoints Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx 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 OLYMPIC that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of OLYMPIC 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 OLYMPIC 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 June 27, 2005, by and
among FMFK and the undersigned stockholder (the "Voting Agreement"), and is
granted in consideration of FMFK entering into that certain Amended and Restated
Agreement and Plan of Merger, dated as of June 27, 2005 (the "Merger
Agreement"), by and among FMFK, OLYMPIC and OLY Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of FMFK ("MERGER SUB"). The Merger
Agreement provides for the merger of MERGER SUB with and into OLYMPIC (the
"Merger") with OLYMPIC 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
1
consents pursuant to Section 228 of the Delaware General Corporation Law), at
every annual, special or other meeting or action of the stockholders of OLYMPIC,
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 OLYMPIC and FMFK to effect the
acquisition of OLYMPIC by FMFK or of control of OLYPMPIC; provided that such
alternative structure is on terms in the aggregate no less favorable to
OLYMPIC'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 OLYMPIC under the Merger Agreement, which could result in any of
the conditions to OLYMPIC'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: June 27, 2005
ONE XXXXX, LLC
_______________________________ By: ____________________________
Xxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx, Manager
Shares beneficially owned: Shares beneficially owned:
46,300 shares of OLYMPIC Common 9,422 shares of OLYMPIC Series A
Stock Preferred
15,386 shares of OLYMPIC Common
Stock issuable upon the exercise of warrants
367,000 shares of OLYMPIC Common
Stock issuable upon the exercise of options
2
