Exhibit 2.12
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of March 31, 1999 (the
"Effective Date"), is by and among CenterPoint Advisors, Inc., a Delaware
corporation ("CenterPoint"), and the individuals listed on the signature pages
hereof (each, a "Member" and collectively, the "Members").
PREAMBLE
A. Concurrently herewith, CenterPoint, Xxxxxxx Xxxxxx & Xxxxxxxxx,
Certified Public Accountants, A Professional Corporation (the "Company"),
Xxxxxxx Mergersub Inc., a Delaware corporation and a direct wholly-owned
subsidiary of CenterPoint ("Mergersub"), Xxxxxxx Xxxxxx & Xxxxxxxxx, C.P.A.s,
L.L.C., a Maryland limited liability company ("Seller"), and the members of
Seller are entering into a Merger Agreement (as amended from time to time, the
"Merger Agreement"; capitalized terms used but not otherwise defined herein have
the meanings assigned in the Merger Agreement) pursuant to which Mergersub will
be merged with and into the Company, with the Company continuing as the
surviving corporation and as a direct wholly-owned subsidiary of CenterPoint
(the "Merger").
B. Seller owns all of the issued and outstanding capital stock of the
Company.
C. Each Member owns the equity interest and percentage of Seller's total
outstanding equity interests set forth opposite such Member's name and signature
on the signature pages hereof (each, an "Interest").
D. As an inducement and a condition to entering into the Merger Agreement,
CenterPoint has required that the Members agree, and the Members have agreed, to
enter into this Agreement.
STATEMENT OF AGREEMENT
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
CenterPoint and the Members agree as follows:
1. Provisions Concerning Interests. Each Member hereby agrees that
during the period commencing on the Effective Date and continuing until the
first to occur of (a) the Effective Time or (b) the termination of the Merger
Agreement in accordance with its terms, at any meeting of the members of Seller,
however called, or in connection with any written consent of the members of
Seller, such Member shall vote (or cause to be voted) the Interest held of
record or Beneficially Owned (as defined below) by such Member, whether
heretofore owned or hereafter acquired, including without limitation by voting
such Interest in favor of Seller voting its shares of capital stock of the
Company, as follows: (i) in favor of approval of the Merger, the Merger
Agreement, the transactions contemplated by the Merger Agreement and any actions
required in
furtherance hereof and thereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company, Seller or any
Member under the Merger Agreement; and (iii) except as otherwise agreed to in
writing in advance by CenterPoint, against the following actions (other than the
Merger and the agreements and transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Seller, the Company or any
Company Subsidiary; (B) a sale, lease or transfer of a material amount of assets
of Seller, the Company or any Company Subsidiary, or a reorganization,
recapitalization, dissolution or liquidation of Seller, the Company or any
Company Subsidiary; (C) (1) any change in a majority of the individuals who
constitute the operating committee, board of directors or similar governing body
of Seller, the Company or any Company Subsidiary; (2) any change in the present
capitalization of Seller, the Company or any Company Subsidiary or any amendment
of Organizational Documents of Seller, the Company or any Company Subsidiary;
(3) any other material change in Seller's, the Company's or any Company
Subsidiary's corporate structure or business; or (4) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, or materially and adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. Such Member shall not
enter into any agreement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions and agreements contained in
Section 1 or 2 of this Agreement. For purposes of this Agreement, "Beneficially
Own", "Beneficially Owned" or "Beneficial Ownership" (or any other derivative of
such terms) with respect to any securities shall mean having "beneficial
ownership" of such securities as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including,
without limitation, pursuant to any agreement, arrangement or understanding,
whether or not in writing. Without duplicative counting of the same securities
by the same holder, securities Beneficially Owned by a Person shall include
securities Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange Act.
2. Other Covenants, Representations and Warranties. Each Member hereby
represents and warrants to CenterPoint as follows:
(a) Ownership of Interests. Such Member is the record and Beneficial
Owner of the Interest as set forth opposite such Member's name and
signature on the signature pages hereof. Such Interest, together with the
Interests set forth opposite each other Member's name and signature on the
signature pages hereof, represent the requisite percentage of membership
interests required to cause Seller to approve the Merger, the Merger
Agreement, the transactions contemplated by the Merger Agreement and any
actions required in furtherance hereof and thereof, and otherwise to act
and cause the Company to act as provided in Section 1 above. On the
Effective Date, the Interest set forth opposite such Member's name and
signature on the signature pages hereof constitutes the entire membership
interest in Seller owned of record or Beneficially Owned by such Member or
as to which such Member has voting power by proxy, voting agreement, voting
trust or other similar instrument. Such Member has sole voting power and
sole power to issue instructions with respect to the matters set forth in
Section 1 of this Agreement, sole
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power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to the entire Interest as set
forth opposite such Member's name and signature on the signature pages
hereof, with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Such Member has the legal capacity,
power and authority to enter into and perform all of such Member's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Member will not violate any other agreement to
which such Member is a party including, without limitation, any voting
agreement, stockholders agreement, operating agreements, voting trust,
trust or similar agreement. This Agreement has been duly and validly
executed and delivered by such Member and constitutes a valid and binding
agreement of such Member, enforceable against such Member in accordance
with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Member is trustee
whose consent is required for the execution and delivery of this Agreement
or the consummation by such Member of the transactions contemplated hereby.
If such Member is married and such Member's Interest constitutes community
property, this Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, such Member's spouse,
enforceable against such person in accordance with its terms.
(c) No Conflicts. (A) No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Member and the
consummation by such Member of the transactions contemplated hereby and (B)
none of the execution and delivery of this Agreement by such Member, the
consummation by such Member of the transactions contemplated by this
Agreement or compliance by such Member with any of the provisions of this
Agreement shall (1) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such Member is a party or by which such Member or any of such
Member's properties or assets may be bound, or (2) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to such Member or any of such Member's properties or assets (other than to
the extent any of the foregoing relates to regulating, licensing or
permitting the practice of public accountancy).
(d) Accredited Investor. Each of the Members identified as an
"accredited investor" on the signature pages hereof, represents and
warrants to Mergersub and CenterPoint that such Member (i) is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act, (ii) is able to bear the economic risk of an investment in
the CenterPoint Common Stock acquired pursuant to the Merger Agreement and
can afford to sustain a total loss of such investment, (iii) has such
knowledge and experience in financial and business matters that such Member
is capable of evaluating the
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merits and risks of the proposed investment in the CenterPoint Common Stock
and (iv) has had an adequate opportunity to ask questions and receive
answers from the officers of CenterPoint concerning all matters relating to
the transactions contemplated herein and in the Merger Agreement including,
without limitation, the background and experience of the current and
proposed officers and directors of CenterPoint, and the plans for the
business and operation of CenterPoint.
(e) Restriction on Transfer, Proxies and Non-Interference. Such
Member shall not, directly or indirectly: (i) except as contemplated by the
Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Member's Interest or any interest
therein; (ii) except as contemplated by this Agreement, grant any proxies
or powers of attorney, deposit any part of such Interest into a voting
trust or enter into a voting agreement with respect to any part of such
Interest; or (iii) take any action that would make any representation or
warranty of such Member contained herein untrue or incorrect or have the
effect of preventing or disabling such Member from performing such Member's
obligations under this Agreement.
(f) Reliance by CenterPoint. Such Member understands and acknowledges
that CenterPoint is entering into the Merger Agreement in reliance upon
such Member's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at CenterPoint's request and
without further consideration, each Member shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
4. Stop Transfer. Each Member agrees with, and covenants to, CenterPoint
that such Member shall not request that Seller register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any
part of such Member's Interest, unless such transfer is made in compliance with
this Agreement. Without limiting the covenants in Section 1, in the event of a
change in the outstanding interests of Seller for any reason, including without
limitation any exchange of equity interests or the like, the term "Interest"
shall be deemed to refer to and include the Interest as well as all such other
equity interests into which or for which any or all of the Interest may be
changed or exchanged.
5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Interest shall terminate upon
the earlier of (a) termination of the Merger Agreement in accordance with its
terms or (b) the Effective Time.
6. Miscellaneous.
(a) Entire Agreement. This Agreement, the Merger Agreement and the
other agreements contemplated herein or therein constitute the entire
agreement between the
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parties with respect to the subject matter hereof and thereof and supersede
all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter of this Agreement.
(b) Certain Events. Each Member agrees that this Agreement and the
obligations hereunder shall attach to such Member's Interest and shall be
binding upon any person or entity to which legal or Beneficial Ownership of
such Interest shall pass, whether by operation of law or otherwise,
including, without limitation, such Member's heirs, guardians,
administrators or successors. Notwithstanding any such transfer of
Interest, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto, provided that CenterPoint may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of CenterPoint, but no such assignment shall relieve CenterPoint
of its obligations hereunder if such assignee does not perform such
obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Members, except upon the execution and delivery
of a written agreement executed by the parties hereto; provided, that any
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member of Seller who agrees to be bound by the terms of this Agreement may
become a signatory hereto without the agreement of any other party hereto,
and thereafter such added member shall be treated as a "Member" for all
purposes of this Agreement.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by
nationally recognized expedited delivery service providing proof of
delivery or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by notice given in accordance
with this Section):
If to a Member: At the address set forth
opposite such Member's
name on the signature pages hereof
with a copy to:
Long Xxxxxxx & Xxxxxx
1 Peachtree Center
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
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If to CenterPoint or Mergersub, to:
CenterPoint Advisors, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision of this Agreement in
such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any of
such rights, powers or remedies by any party shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by
such party.
(i) No 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,
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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.
(j) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Maryland, without giving effect to
the principles of conflicts of law thereof.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts via
facsimile or otherwise, each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same
agreement.
(n) Recovery of Attorney's Fees. In the event of any litigation
between the parties relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorney's fees and costs
(including court costs) from the non-prevailing party, provided that if
both parties prevail in part, the reasonable attorney's fees and costs
shall be awarded by the court in such manner as it deems equitable to
reflect the relative amounts and merits of the parties' claims.
* * *
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IN WITNESS WHEREOF, CenterPoint and the Members have caused this Agreement
to be duly executed as of the Effective Date.
CENTERPOINT ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
Chief Executive Officer
PERCENTAGE
EQUITY AND VOTING
INTEREST
MEMBERS: "ACCREDITED" ADDRESS BENEFICIALLY
(Yes/No) OWNED
/s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx YES
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx YES
/s/ Xxxx X. Xxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxx YES
/s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------
Xxxxxxx X. Xxxxx, Xx. YES
/s/ Xxxxx Birmingham
----------------------------
Xxxxx Birmingham YES
/s/ Xxxxxxx X. Xxxxxxx Xx.
----------------------------
Xxxxxxx X. Xxxxxxx, Xx. YES
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx YES
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx YES
/s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx YES
/s/ Xxx Xxxxxxxx
----------------------------
Xxx Xxxxxxxx YES
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PERCENTAGE
EQUITY AND VOTING
INTEREST
MEMBERS: "ACCREDITED" ADDRESS BENEFICIALLY
(Yes/No) OWNED
/s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx YES
/s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx YES
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx YES
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx YES
/s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx YES
/s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx YES
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxx YES
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx YES
/s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx YES
/s/ Xxxxxxx XxXxxxxx
----------------------------
Xxxxxxx XxXxxxxx YES
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx YES
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx YES
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