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EXHIBIT 2
VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement and Irrevocable Proxy ("Agreement") is made and
entered into as of the 27th day of October, 1996 by Xxxxxx Xxx Xxxxxx, E.P.
Family Partners, Ltd., a Colorado limited partnership, the Hay Foundation,
Inc., a Florida not for profit corporation; and Tropical Time, Inc., a Florida
corporation (collectively the "Shareholders" and each individually a
"Shareholder") and Ocean Reef Management, Inc., a Florida corporation (the
"Proxy").
RECITALS
A. Contemporaneously herewith, the Shareholders and the Proxy are
entering into a Stock Option Agreement (the "Option Agreement") pursuant to
which the Shareholders are granting Proxy an option to purchase up to 1,609,800
shares (the "Shares") of the common stock of Xxx Xxxx Marketing, Inc., a
Delaware corporation (the "Company").
B. The Shareholders deems it to be in their best interests to
irrevocably appoint the Proxy as their proxy, with full right and power to vote
all Shares, pursuant to this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth hereinabove
and the mutual covenants and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
hereby, each of the parties hereto, intending legally to be bound, hereby
agrees as follows:
1. INCORPORATION OF RECITALS. The parties to this Agreement
hereby agree and acknowledge that all of the Recitals set forth hereinabove are
true, complete and correct in every respect and hereby incorporate said
Recitals into this Agreement by this reference.
2. REPRESENTATIONS OF SHAREHOLDER. Each Shareholder hereby
represents and warrants to the Proxy that such Shareholder: (a) owns and has
the right to vote all Shares currently held of record by the Shareholder, (b)
has full power to enter into this Agreement and has not, prior to the date of
this Agreement, executed or delivered any proxy or entered into any other
voting agreement or similar arrangement and (c) will not take any action
inconsistent with the purposes and provisions of this Agreement.
3. SCOPE OF AGREEMENT. This Agreement shall govern the vote of
the Shares by the Proxy with respect to any and all matters voted upon by
shareholders of
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the Company, whether at a meeting or pursuant to written consent or otherwise,
including, but not limited to:
(i) any change in the authorized capital stock or capital
structure of the Company, including any grant of options or the creation of any
additional class of shares;
(ii) any amendment of the Company's Articles of
Incorporation;
(iii) any merger, share exchange, sale of substantially all
of the assets or dissolution of the Company;
(iv) the election of the Company's Board of Directors; and
(v) any change in the number of directors fixed to serve
on the Company's Board of Directors.
Unless terminated as hereinafter provided, this Agreement shall remain in
effect without regard to any action taken by shareholders of the Company.
4. CHANGES IN COMMON STOCK. In the event that subsequent to the
date of this Agreement any shares of Common Stock or other securities of the
Company or another corporation are issued on, or in exchange for, any of the
Shares by reason of any stock dividend, stock split, consolidation of shares,
reclassification, exchange, merger or consolidation or otherwise involving the
Company, such shares of Common Stock or other securities shall be deemed to be
Shares for purposes of this Agreement.
5. VOTING OF SHARES. Each Shareholder agrees and covenants that
at any meeting of shareholders of the Company and/or in connection with any
corporate action by the shareholders of the Company, all of his Shares shall be
voted by the Proxy in the manner and to the effect determined by said Proxy in
his sole and absolute discretion. Accordingly, during the term of this
Agreement, the Shareholder shall not vote or attempt to vote any Shares or
otherwise exercise or attempt to exercise any voting or other approval rights
of any Shares, and any such prohibited exercise by the Shareholder of voting or
approval rights shall be void and of no force or effect.
6. IRREVOCABLE PROXY.
(a) In order to give effect to and in furtherance of the
agreements and covenants set forth in Section 5 of this Agreement, each
Shareholder hereby irrevocably constitutes and appoints Proxy as his proxy,
with full power of substitution, for and in the name and on behalf of such
Shareholder, to vote any and all of his or its Shares with regard to any
question, action, resolution, election or other matter presented to the
shareholders of the Company (or its successor) for vote or approval. Proxy
shall vote said Shares in such manner and to such effect as he may determine in
his sole and absolute discretion. The proxy granted hereby shall remain in
effect for so
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long as and at all times that this Agreement shall remain in effect and shall
terminate immediately and automatically only upon the termination of this
Agreement in accordance with the provisions thereof. The proxy granted hereby
is irrevocable and is coupled with an interest.
(b) Proxy hereby accepts his appointment as proxy of each
Shareholder, pursuant to Subsection 6(a) of this Agreement.
7. LIMITATION OF PROXY'S LIABILITY. Proxy shall not incur any
liability or responsibility by reason of any error of judgment, mistake of law
or other mistake, or for any act or omission of any agent or attorney, or for
any misconstruction of this Agreement, or for any action of any kind taken or
omitted hereunder or believed by him to be in accordance with the provisions
and intents hereof, except for his own individual intentional misconduct in bad
faith.
8. TERMINATION. This Agreement shall terminate only upon the
earlier to occur of the termination of the Stock Option Agreement or (ii) the
occurrence of any one of the following events:
(A) liquidation or dissolution of the Company or its
successor;
(B) the Proxy's death or incapacity to act hereunder; or
(C) the termination of this Agreement by written
agreement of all parties to this Agreement.
9. LEGEND. Each Shareholder will submit to the Proxy and Proxy
may imprint all certificates for the Shares with notice of this Agreement and
the irrevocable proxy set forth herein. Each Shareholder agrees not to
transfer any interest in the Shares unless the transferee executes and delivers
to Proxy an agreement in form and in substance substantially similar to this
Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard
to that State's rules regarding choice of law.
11. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, successors, assigns and
transferees.
12. COUNTERPARTS. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto, notwithstanding that all the parties are not signatories to
the original or same counterpart.
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13. AMENDMENT OR MODIFICATION. This Agreement may be altered,
modified or amended only by the written consent of both parties subject hereto.
Any such modification must be signed by each party to this Agreement and each
signature must be acknowledged and notarized in order for the modification to
take effect.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings and arrangements, both oral
and written, among the parties hereto with respect to such subject matter.
15. ENFORCEABILITY. Each Shareholder expressly agrees that this
Agreement shall be specifically enforceable in any court of competent
jurisdiction in accordance with its terms against each of the parties hereto.
If any provision of this Agreement shall be declared void or unenforceable by
any court or administrative board of competent jurisdiction, such provision
shall be deemed to have been severed from the remainder of this Agreement and
this Agreement shall continue in all respects to be valid and enforceable and
shall be construed so as to best give effect to the purposes and intents hereof.
16. REFERENCES. Whenever required by the context, and is used in
this Agreement, the singular number shall include the plural and pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identification the person may require.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
PROXY:
OCEAN REEF MANAGEMENT, INC.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx, President
SHAREHOLDERS:
E.P. FAMILY PARTNERS, LTD.
By: /s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, General Partner
/s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, Individually
HAY FOUNDATION, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, President
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IRREVOCABLE PROXY
Each of the undersigned hereby irrevocably constitutes and appoints
Ocean Reef Management, Inc., a Florida corporation (the "Proxy") as proxy for
the undersigned, with full power of substitution, for and in the name and on
behalf of the undersigned, to vote, or to execute and deliver written consents
or otherwise act with respect to, in his sole and absolute discretion, any and
all shares of Common Stock, par value $_______ per share, and other securities
of Xxx Xxxx Marketing, Inc., a Delaware corporation (the "Company"), now owned
or hereafter acquired by the undersigned (and any shares or other securities of
another corporation that may hereafter be issued on, or in exchange for, any
such shares or other securities of the Company), as fully, to the same extent
and with the same effect as the undersigned, his attorney and proxy or her
substitute might or could lawfully do with respect to any question, action,
resolution, election or other matter presented to the shareholders of the
Company (or its successor) for approval, whether at any annual or special
meeting of the Company's shareholders or otherwise.
This Irrevocable Proxy is given pursuant to a Stock Option Agreement
dated as of the date hereof, (the "Agreement"), between each of the undersigned
and the Proxy, and as such is coupled with an interest and is irrevocable.
This Irrevocable Proxy shall remain in full force and effect from the date
hereof until such Agreement is terminated in accordance with the terms of the
Voting Agreement and Irrevocable Proxy of which this is a part.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable
Proxy as of the 27th day of October, 1996.
E.P. FAMILY PARTNERS, LTD.
By: /s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, General Partner
/s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, Individually
HAY FOUNDATION, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
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Xxxxxx Xxx Xxxxxx, President
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