EXHIBIT D
VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement and Irrevocable Proxy (this "Agreement") dated as of
21st October, 1999 is executed by and between KBK Capital Corporation ("KBK")
and Xxxxxx Commercial Finance, L.L.C., as the "Stockholder";
WHEREAS, KBK and the Stockholder have executed that certain Stock Purchase
Agreement dated as of even date herewith (the "Stock Purchase Agreement")
whereby the Stockholder is selling to KBK an aggregate of 483,795 of shares of
the common stock of KBK;
WHEREAS, the Stockholder is required pursuant to the terms of the Stock
Purchase Agreement to deliver this Agreement to KBK at the Initial Closing; and
WHEREAS, capitalized terms not defined in this Agreement shall have the
meanings ascribed to them in the Stock Purchase Agreement;
NOW THEREFORE, the parties hereto agree as follows:
1. The Stockholder hereby represents and warrants to KBK that it has the
exclusive right to vote the Deferred Shares. The Stockholder hereby agrees to
vote all of the Deferred Shares in accordance with the recommendations of
management of KBK.
2. In order better to effect the provisions of Section 1, the Stockholder
hereby revokes any previously executed proxies and hereby constitutes and
appoints [Xxxxxx X. XxXxx] (the "Proxy Holder"), with full power of
substitution, his true and lawful proxy and attorney-in-fact to vote the
Deferred Shares as indicated in Section 1.
3. The Stockholder hereby covenants and agrees that until this Agreement
is terminated in accordance with its terms, the Stockholder will not, and will
not agree to, directly or indirectly, sell, transfer, assign, pledge,
hypothecate, cause to be redeemed or otherwise dispose of any of the Deferred
Shares or grant any proxy or interest in or with respect to any such Deferred
Shares or deposit such Deferred Shares into a voting trust or enter into another
voting agreement or arrangement with respect to such Deferred Shares except as
contemplated by this Agreement or the Stock Purchase Agreement.
4. This proxy shall be limited strictly to the power to vote the Deferred
Shares in the manner set forth in Section 2 and shall not extend to any other
matters.
5. The Stockholder acknowledges that KBK is relying on this Agreement in
undertaking actions necessary for the consummation of the transactions
contemplated by the Stock Purchase Agreement and that the proxy granted hereby
is coupled with an interest and is irrevocable to the full extent permitted by
applicable law. The Stockholder acknowledges that the performance of this
Agreement is intended to benefit KBK.
6. The irrevocable proxy granted pursuant hereto shall continue in effect
until the earlier to occur of (i) the termination of the Escrow Agreement or
(ii) the termination of the Stock Purchase Agreement.
7. The vote of the Proxy Holder shall control in any conflict between its
vote of the Deferred Shares and a vote by the Stockholder of the Deferred
Shares, and KBK agrees to recognize the vote of the Proxy Holder instead of the
vote of the Stockholder in the event the Stockholder does not vote as set forth
in Section 1 hereof.
8. This Agreement may be modified, amended, altered or supplemented with
respect to the Stockholder only upon the execution and delivery of a written
agreement executed by KBK and the Stockholder.
9. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
10. This Agreement, together with the Stock Purchase Agreement and the
agreements contemplated thereby, embody the entire agreement and understanding
of the parties hereto in respect to the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such subject matter contained herein.
11. All notices, requests, demands and other communications required or
permitted hereby shall be in writing and shall be deemed to have been duly given
if delivered by hand or mail, certified or registered mail (return receipt
requested) with postage prepaid to the addresses of the parties hereto set forth
below or to such other address as any party may have furnished to the others in
writing in accordance herewith:
if to Stockholder, to: Xxxxxx Commercial Finance, L.L.C.
c/o Xxxxxx X. Xxxxxx
P. O. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to: Xxxxx X. Xxxxxx
P. O. Box 51869
Xxxxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
if to KBK, to: Xx. Xxxxxx X. XxXxx
KBK Capital Corporation
2200 City Center II
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
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with a copy to: Xx. Xxxx X. Xxxxx
Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxxx Xxxxx
000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Fax No.: (000) 000-0000
12. This Agreement and the relations among the parties hereto arising from
this Agreement shall be governed by and construed in accordance with the laws of
the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
KBK CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. XxXxx
Title: Chairman of the Board
and Chief Executive Officer
XXXXXX COMMERCIAL FINANCE, L.L.C.
By: /s/ XXXXXX XXXXXX
-------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Member
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