EXHIBIT 2
SHAREHOLDERS VOTING AGREEMENT
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THIS SHAREHOLDERS VOTING AGREEMENT, Made and entered into this 9th day
of January, 1997, by and between Xxxxxx X. Xxxxx (Xxxxx), of Xxxxxxx County,
North Carolina, Xxx X. Xxxxxxxx (Xxxxxxxx), of Bennington, Vermont, and
Xxxxxx X. Xxxxx (Xxxxx), of Craftsbury Common, Vermont, sometimes hereinafter
referred to collectively as the Parties;
W I T N E S S E T H
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THAT WHEREAS, all of the Parties hereto own shares of the voting common
stock (the Shares) of Xxxx Security International, Inc. (MSI), a Delaware
corporation with its principal office in Bennington, Vermont; and
WHEREAS, the Parties have concluded and agreed that it will promote
their mutual interests and well being to agree mutually that certain of the
shares owned by them will be subjected to and the voting of such shares
governed and controlled by the terms of this agreement, and have in good
faith further concluded and agreed that entering into this voting agreement
will be in the best interest of and promote the well being of MSI;
NOW, THEREFORE, for the purposes aforesaid and in consideration of their
mutual promises and undertakings herein and other good and valuable
consideration, the acceptance and sufficiency of which are hereby
acknowledged, said Parties have contracted, covenanted and agreed with each
other and do now for themselves and their respective heirs, assigns, personal
representatives and successors in interest, contract, covenant and agree with
each other as follows:
1. TERMS OF AGREEMENT. This Agreement shall become effective on 1-9-97
and shall continue for a term of two (2) years thereafter (the Term) unless
sooner terminated by written
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agreement of the Parties, judicial order, or such other occurrence as set
forth in Section 18 below.
2. SHARES SUBJECT TO AGREEMENT. The following shares of MSI (Subject
Shares) shall be subject to and the ownership, voting, transfer and other
disposition of such shares shall be determined and controlled by the terms of
this agreement:
(a) 2,400,000 Shares of MSI owned by Xxx X. Xxxxxxxx
(b) 1,100,000 Shares of MSI owned by Xxxxxx X. Xxxxx
(c) All Shares of MSI owned by Xxxxxx X. Xxxxx on the date this voting
agreement is executed pursuant to Section 20 below and acquired thereafter by
him at any time prior to the termination of this Agreement pursuant to
Section 18 below.
The foregoing shares of MSI stock are referred to herein as the Subject
Shares. All other shares of MSI stock owned by Xxxxx and Xxxxxxxx are
excluded from this Agreement.
3. RESTRICTIONS ON TRANSFER OF SHARES. Except as provided below in this
Section 3, neither party will sell, transfer, assign, pledge or otherwise
dispose of or encumber the Subject Shares without the prior written consent
of the other parties to this Agreement.
The parties agree that notwithstanding the foregoing at any time more
than ninety (90) days after the date of this Agreement:
(a) Six hundred thousand (600,000) shares of the subject stock owned by
Xxx X. Xxxxxxxx will upon his written request be released and withdrawn from
this Agreement; and
(b) One hundred thousand (100,000) shares of the subject stock owned by
Xxxxxx X. Xxxxx will upon his written request be released and withdrawn from
this Agreement.
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A copy of such written request shall be delivered to each of the other
parties to this Agreement. Simultaneously therewith an executed copy of such
request shall be delivered to the Secretary of Xxxx Security International,
Inc., and thereupon and thereafter the shares specified in such written
request shall be free and discharged of all the terms and provisions of this
Agreement.
4. SUBJECT SHARES NOT TO BE VOTED OTHERWISE. Neither party will vote,
attempt to vote, or authorize anyone else, by proxy or otherwise, to vote or
attempt to vote any of the Shares specified in Section 2 above.
5. OTHER SHARES NOT AFFECTED BY THIS AGREEMENT. The Parties acknowledge
that Xxxxxxxx and Xxxxx own shares of MSI in addition to the shares specified
in Section 2 above. Said parties also understand that either or all of them
may hereafter acquire additional shares of MSI. Any shares of MSI now owned
or hereafter acquired by Xxxxx during the term of this Agreement are included
in and subject to its terms and conditions. Any shares of MSI now owned or
hereafter acquired by Xxxxx or Xxxxxxxx in excess of the number of shares
specified opposite the name of such party in Section 2 above (Excess Shares)
shall not be affected in any manner whatever by this agreement and the owner
of such Excess Shares may vote, own, transfer, and otherwise dispose of or
use such shares free and discharged of all of the terms of this Agreement.
6. OBLIGATION TO VOTE SUBJECT SHARES. Each Party shall timely vote all
of his Subject Shares on any question, issue or other matter coming before a
meeting of the shareholders of MSI and on which such shares are entitled to
vote in accordance with the written decision of a majority (2) of the Parties
without regard to the number of shares owned by each, and not
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otherwise. Further, no party shall be entitled to abstain or decline to vote
his Subject Shares, unless authorized in writing by a majority of the Parties.
7. PROCEDURE TO DETERMINE HOW SUBJECT SHARES WILL BE VOTED. At least
three (3) days after the mailing of the notice of a meeting (whether regular
or special) of the shareholders of MSI (the Notice), but not later than
midnight of the day which precedes by at least five (5) days the day for the
meeting of the shareholders specified in the Notice, the Parties shall
determine how the subject shares shall be voted on any question, issue or
other matter which will or may come before such meeting for action by the
shareholders. The written decision of any two (2) of the Parties as to how
the Subject Shares will be voted shall be conclusive and binding on the
Parties and all Subject Shares and each party shall vote all of his Subject
Shares in accordance with such decision.
If any party shall be unable to vote, or shall refuse to vote his
Subject Shares in accordance with such decision (Non-Voting Party), the other
Parties, or either of them may and shall vote the Subject Shares of the
Non-Voting Party in accordance with any such majority decision and said
Non-Voting Party does hereby authorize and empower the other parties or
either of them to so vote his Subject Shares, does hereby ratify and confirm
such vote(s) and does hereby irrevocably agree that he will be bound by any
such vote and will not in any manner question or challenge any such vote or
authorize or request anyone else to question or challenge any such vote.
Upon request by the other Parties, the Non-Voting Party shall execute a
written proxy or take such other action as MSI may require in order to permit
the shares of the Non-Voting Party to be cast and counted in accordance with
the decision of the majority of the Parties.
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In the event of a challenge to any such vote or attempted vote by anyone
not a party to this Agreement, the Parties hereby irrevocably agree that each
shall vote the number of shares set forth in Section 2 above consistent with
the challenged vote or attempted vote.
8. FILE EXECUTED COPY WITH MSI. A fully executed copy hereof shall be
filed with the Secretary of MSI and shall remain on file and open for
inspection by any officer or shareholder of MSI at the principal office of
MSI during regular business hours.
9. MSI REQUESTED TO HONOR AGREEMENT. MSI, its officers and directors
are hereby requested and authorized to honor and be governed by the terms of
this Agreement. Further, MSI is hereby requested and authorized to decline to
recognize any attempted vote of any of the Subject Shares which is not in
full compliance with the terms of this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the others that as of the date of this Agreement:
(a) he has full power and authority to enter into and perform this
Agreement and this Agreement is legal, valid and binding and enforceable
against him.
(c) no proceedings are pending or threatened against or affecting him
before any court, arbitrator or administrative or governmental body which, in
the aggregate, would adversely affect his ability to perform his obligations
hereunder.
(c) in so far as he knows, no consents, notices, filings, approvals or
authorizations are required to be made to or with or received from any person
entity, or governmental body for consummation of the transactions
contemplated by this Agreement.
(d) he has the sole legal and beneficial ownership of the Shares
designated in Section 2 above and owns such Shares free and clear of all
liens, claims and encumbrances of any kind.
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11. FAILURE TO PERFORM. The failure of any party to perform any of his
obligations pursuant to this Agreement may be enforced by suit for specific
performance or any other available legal remedy and shall subject the
non-performing party to the recovery of damages incurred by the other
parties, including but not limited to the recovery of compensatory damages,
attorney's fees and costs.
12. APPOINTMENT OF SUCCESSOR TO RIGHT TO VOTE SUBJECT SHARES. In the
event of the death or disability of:
(a) Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx is hereby appointed his
successor-in-interest as to the rights and obligations set forth in this
Agreement, and Xxxxxxxx and Xxxxx hereby irrevocably consent to, approve and
ratify such appointment, or
(b) Xxx X. Xxxxxxxx, Xxx Xxxxx Xxxxxxxx is hereby appointed his
successor-in-interest as to the rights and obligations set forth in this
Agreement, and Xxxxx and Xxxxx hereby irrevocably consent to, approve and
ratify such appointment, or
(c) Xxxxxx X. Xxxxx, Xxxxx and Xxxxxxxx shall select Xxxxx'x
successor-in-interest by mutual written agreement. In the event Xxxxx and
Xxxxxxxx are unable to select such successor by agreement within seven (7)
days of notification of Xxxxx'x death or disability, then such successor
shall be selected by an independent arbitrator approved by the American
Arbitration Association and experienced in corporate matters. The cost of the
selection and actions of such arbitrator shall be borne equally by Xxxxx and
Xxxxxxxx.
13. AGREEMENT CONTINGENT ON OTHER TRANSACTIONS. The validity of this
Agreement is contingent on the due execution of an agreement between Xxxxxx
X. Xxxxx and Xxx X. Xxxxxxxx satisfactory to them in their sole discretion
relating to the purchase and sale of certain shares of
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stock in MSI, Xxxxx & Xxxxxxxx Leather, Inc. and G & G Realty, Inc. prior to
or at the time of the execution of this Agreement, or on or before Midnight,
January 8, 1997, whichever shall first occur.
14. BINDING EFFECT. This Agreement shall be binding on the Parties'
successors, assigns, transferees, heirs, legatees, beneficiaries, executors
and personal representatives.
15. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person or circumstances, shall to any extent be held invalid
and unenforceable, the invalidity of such provision shall not affect any of
the remaining provisions of this Agreement.
16. AMENDMENTS. This Agreement may be amended at any time by and with
the written consent of all of the parties hereto; additionally, any party
hereto may withdraw any of his shares subject to this Agreement at any time
by and with the written consent of the other parties hereto. Any shares
withdrawn pursuant to the provisions of this paragraph shall be subject to
the notice requirements specified in Section 3 above.
17. ENTIRE UNDERSTANDING OF THE PARTIES. This Agreement contains the
entire understanding between the parties with respect to the subject matter
hereof, and all prior negotiations and agreements are merged herein. Any
executory agreement simultaneously or hereafter made shall be ineffective to
change, modify discharge or affect any abandonment of this Agreement, in
whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
18. SINGULAR INCLUDES PLURAL. The singular number includes the plural
and the masculine gender includes the feminine and the neuter, wherever
appropriate, and vice versa.
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19. TERMINATION OF TERM. Upon the occurrence of any of the following
events the Term shall be deemed expired:
(a) the expiration of the two (2) year term specified in Section 1.
(b) the mutual written consent of the Parties.
(c) MSI becomes subject, whether voluntarily or involuntarily, to any
proceeding for bankruptcy or receivership and such proceeding is not
dismissed within forty-five (45) days of its commencement.
20. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Delaware without regard to principles and conflicts of law.
21. MISCELLANEOUS. Except as otherwise set forth herein, no party may
assign any or all of his rights or delegate any or all of his duties under
this Agreement without the written consent of all other parties. Any person
or entity acting in the place of any party named herein shall be subject to
all of the provisions of this Agreement. All representations and warranties
made herein shall survive the execution and delivery of this Agreement. This
Agreement may be executed in counterparts, each of which when so executed
shall be as an original, but all such counterparts shall together constitute
by one and the same instrument. Headings are included in this Agreement for
convenience of reference only and they are not a part of this Agreement. No
interpretation or construction of the Agreement shall be derived from or
based on headings.
IN WITNESS WHEREOF, Xxxxxx X. Xxxxx, Xxx X. Xxxxxxxx, and Xxxxxx X.
Xxxxx, have each hereunto set their hands and seals, the day and year first
above written.
/s/ Xxxxxx X. Xxxxx (SEAL)
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Xxxxxx X. Xxxxx
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/s/ Xxx X. Xxxxxxxx (SEAL)
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Xxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxx (SEAL)
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Xxxxxx X. Xxxxx
