EXHIBIT 2
This STOCKHOLDERS VOTING AGREEMENT, dated as of September 30, 1997, between
certain holders of the shares of outstanding voting Common Stock, $0.01 par
value per share ("Common Stock"), of the Company (as defined below) set forth on
the signature page hereof (each, a "Stockholder" and, collectively, the
"Stockholders") and Prometheus Homebuilders LLC, a Delaware limited liability
company (the "Purchaser"). Capitalized terms not otherwise defined herein have
the meaning ascribed to them in the Stock Purchase Agreement (as hereinafter
defined).
RECITALS
A. Concurrently with the execution of this Agreement, pursuant to that
certain Amended and Restated Stock Purchase Agreement, as amended from time to
time (the "Stock Purchase Agreement"), dated as of September 30, 1997, by and
between The Fortress Group, Inc., a Delaware corporation (the "Company") and the
Purchaser, the parties thereto agreed to a series of transactions, including the
sale to the Purchaser of certain shares of the Company's Class AA Preferred
Stock and Class AB Preferred Stock (all such transactions between the Company
and the Purchaser are hereinafter collectively referred to as the
"Transactions").
B. As an additional inducement to the Purchaser to enter into the
Transactions, each of the Stockholders have agreed to vote in favor of the
Transactions on the terms set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Voting of Shares. During the term of this Agreement for so long as
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such Stockholder shall be the owner of any Shares (as hereinafter defined), each
of the Stockholders covenants and agrees with each other Stockholder and the
Purchaser, to vote (which term shall include taking action without a meeting by
written consent) such number of Shares that may be voted by such Stockholder in
favor of the Transactions.
2. Shares. The term "Shares" as used herein shall mean any and all shares
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of the capital stock of the Company (including Common Stock) which carry voting
rights (including any voting rights which arise by reason of default) now owned
or subsequently acquired by a Stockholder through purchase, gift, stock splits,
stock dividends and exercise of stock options.
3. Termination. This Agreement shall terminate at the Second Closing (as
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defined in the Stock Purchase Agreement). Each Stockholder hereby agrees not to
sell, transfer or otherwise dispose of any of its Shares until the Second
Closing (other than Shares pledged by Xxxxxxx X. Xxxxx, Xx. as of the date
hereof pursuant to an existing loan agreement).
4. No Revocation. The voting agreements contained herein are coupled with
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an interest and may not be revoked prior to termination in accordance with
Section 3, except by
written consent of the Purchaser, the Company and the
Stockholders owning a majority of the Shares.
5. Irrevocable Proxy. Each Stockholder hereby constitutes and appoints
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the Purchaser, with full power of substitution, as the proxy of the Stockholder
and hereby authorizes the Purchaser to represent and to vote all of the Shares
in favor of the approval of the Transactions at the Stockholders Meeting and at
every adjournment or postponement thereof, to the same extent and with the same
effect as the Stockholder might or could do under applicable law, rules and
regulations. The proxy granted pursuant to the immediately preceding sentence
is given in consideration of the agreements and covenants of the Company
pursuant to this Agreement and as such is coupled with an interest and shall be
irrevocable unless and until this Agreement terminates pursuant to Section 3
hereof. The Stockholder hereby revokes any and all previous proxies granted
with respect to any of the Shares and shall not hereafter, unless and until this
Agreement terminates pursuant to Section 3 hereof, purport to grant any other
proxy or power of attorney with respect to any of the Shares, deposit any of the
Shares into a voting trust or enter into any agreement (other than this
Agreement), arrangement or understanding with any Person, directly or
indirectly, to vote or grant any proxy or give instructions with respect to the
voting of any of the Shares.
6. General.
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(a) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware, without regard to any
principles of conflicts of law.
(b) Notices. All notices, requests, demands and other communications under
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this Agreement shall be in writing and shall be deemed given if delivered
personally or by facsimile transmission (with subsequent letter confirmation by
mail) or three days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, to the parties, their successors in interest
or their assigns at the following addresses, or at such other addresses as the
parties may designate by written notice in the manner aforesaid:
If to the Stockholders: ATTN: [Stockholder Name]
c/o The Fortress Group, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: J. Xxxxxxxx Xxxxxxx
with a copy to: Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
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If to the Purchaser: Prometheus Homebuilders LLC
c/o Lazard Freres Real Estate Investors, LLC
Thirty Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
Xxxxx X. Xxxxx
with a copy to: Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: R. Xxxxxx Xxxxxxxxx
(c) Entire Agreement. This Agreement contains the entire understanding
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among the parties hereto and supersedes any prior understandings and agreements,
either oral or written, between or among the parties hereto relating to the
subject matter hereof.
(d) Equitable Remedies. In addition to legal remedies, in recognition of
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the fact that remedies at law may not be sufficient, the parties (and their
permitted successors and assigns) shall be entitled to equitable remedies for
breaches or defaults hereunder, including, without limitation, specific
performance and injunction.
(e) Amendment. No amendment, modification or termination of any provision
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of this Agreement shall be valid unless in writing and signed by the Purchaser,
the Company and Stockholders owning a majority of the Shares.
(f) Binding Agreement: Successors and Assigns. This Agreement shall be
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binding upon the parties hereto and their respective successors and legal
representatives; provided, however, that the rights and obligations of the
Purchaser under this Agreement shall not be assigned to any party other than:
(i) to an affiliate of the Purchaser or to any entity with which the Purchaser
merges or combines; or (ii) with the consent of the Stockholders owning a
majority of the Shares.
(g) Counterparts. This Agreement may be executed in several counterparts,
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and as so executed shall constitute one agreement, binding on all of the parties
hereto, notwithstanding that all the parties are not a signatory to the original
or the same counterparts.
(h) No Waiver; Cumulative Remedies. No failure or delay on the part of any
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party in exercising any right, power or remedy hereunder shall, except to the
extent expressly provided herein, operate as a waiver hereof, nor shall any
single or partial exercise of any right, power or remedy preclude any other
future exercise thereof or the exercise of any other right,
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power or remedy hereunder. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(i) Severability. The provisions of this Agreement are severable, and if
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any clause or provision of this Agreement shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such clause or provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of such clause or provision in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
(j) By its execution and delivery of this Agreement, each Stockholder
represents and warrants to the Purchaser that it owns 100% of the Shares set
forth opposite its name on the signature page hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
494,423
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By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title:
651,585
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By: /s/ J. Xxxxxxxx Xxxxxxx
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Name: J. Xxxxxxxx Xxxxxxx
Title:
0
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By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title:
948,948.5
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By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title:
474,474.25
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By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title:
457,628
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By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title:
5
457,628
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By: /s/ Lanold X. Xxxxxxxx
----------------------
Name: Lanold X. Xxxxxxxx
Title:
1,691,227
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By: /s/ J. Xxxxxxxxxxx Xxxxxxx
--------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title:
1,569,517
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By: /s/ Xxxxxx Xxxxx
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Name:
Title:
125,000
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By: /s/ Xxxx Xxx Xxxxxxx
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Name: Marry Xxx Xxxxxxx
Title:
PROMETHEUS HOMEBUILDERS LLC
By: LF Strategic Realty Investors II L.P.,
its member
By: Lazard Freres Real Estate Investors L.L.C.,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Investment Officer
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