Exhibit 2.18
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated March 31, 1999 (the
"Effective Date"), is by and among CenterPoint Advisors, Inc., a Delaware
corporation ("CenterPoint"), and the individuals and entities listed on the
signature pages hereof (each, a "Stockholder" and collectively, the
"Stockholders").
PREAMBLE
A. Concurrently herewith, CenterPoint, Self Funded Benefits, Inc., d/b/a/
Insurance Design Administrators (the "Company") and XXX Mergersub Inc., a
Delaware corporation and a direct wholly-owned subsidiary of CenterPoint
("Mergersub"), 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. Each Stockholder owns shares, no par value, of Class A and Class B
common stock of the Company (the "Shares" or "Company Common Stock") in the
amounts set forth opposite such Stockholder's name and signature on the
signature pages hereof.
C. As an inducement and a condition to entering into the Merger Agreement,
CenterPoint has required that the Stockholders agree, and the Stockholders 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 Stockholders agree as follows:
1. Provisions Concerning Company Common Stock. Each Stockholder 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) termination of the
Merger Agreement in accordance with its terms, at any meeting of the holders of
Company Common Stock, however called, or in connection with any written consent
of the holders of Company Common Stock, such Stockholder shall vote (or cause to
be voted) the Shares held of record or Beneficially Owned (as defined below) by
such Stockholder, whether heretofore owned or hereafter acquired: (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 or any Stockholder 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 Agreement 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 the Company or any Company Subsidiary; (B) a
sale, lease or transfer of a material amount of assets of the Company or any
Company Subsidiary, except as provided in the Merger Agreement, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any Company Subsidiary; (C) (1) any change in a majority of the individuals who
constitute the board of directors of the Company or any Company Subsidiary; (2)
any change in the present capitalization of the Company or any Company
Subsidiary or any amendment of Organizational Documents of the Company or any
Company Subsidiary; (3) any other material change in 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
Stockholder 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 Stockholder
hereby represents and warrants to CenterPoint as follows:
(a) Ownership of Shares. Such Stockholder is the record and
Beneficial Owner of the number of Shares as set forth opposite such
Stockholder's name on the signature pages hereof. Such Shares, together
with the number of Shares set forth opposite each other Stockholder's name
on the signature pages hereof, represent the requisite number of shares
required to approve the Merger, the Merger Agreement, the transactions
contemplated by the Merger Agreement and any actions required in
furtherance hereof and thereof. On the Effective Date, the Shares set
forth opposite such Stockholder's name on the signature pages hereof
constitute all of the Shares owned of record or Beneficially Owned by such
Stockholder or as to which such Stockholder has voting power by proxy,
voting agreement, voting trust or other similar instrument. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Section 1 of this Agreement, sole 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 all of the Shares as set forth
opposite such
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Stockholder's name on the signature pages hereof, with no limitations,
qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not violate any
other agreement to which such Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement, voting trust,
trust or similar agreement. This Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder
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
Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby. If such Stockholder is married and such
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, such Stockholder'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 Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby
and (B) except as set forth on the Schedules to the Merger Agreement, none
of the execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated by this
Agreement or compliance by such Stockholder 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 Stockholder is a party or by which
such Stockholder or any of such Stockholder's properties or assets may be
bound, or (2) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) Accredited Investor. Each of the Stockholders identified as an
"accredited investor" on the signature pages hereof, represents and
warrants to Mergersub and CenterPoint that such Stockholder (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
Stockholder is capable of evaluating the 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
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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
Stockholder 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 Stockholder's Shares or any
interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling such Stockholder from performing such Stockholder's obligations
under this Agreement.
(f) Reliance by CenterPoint. Such Stockholder understands and
acknowledges that CenterPoint is entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at CenterPoint's request and
without further consideration, each Stockholder 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 Stockholder agrees with, and covenants to,
CenterPoint that such Stockholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Stockholder's Shares, unless such transfer is
made in compliance with this Agreement. Without limiting the covenants in
Section 1, in the event of a stock dividend or distribution, or any change in
Company Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or other equity interests or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares or other equity interests into
which or for which any or all of the Shares may be changed or exchanged.
5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares 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 Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or Beneficial
Ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any such transfer
of Shares, 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 Stockholders, except upon the execution and
delivery of a written agreement executed by the parties hereto; provided,
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that any Stockholder of the Company 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 Stockholder shall be treated
as a "Stockholder" 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 Stockholder: At the address set forth opposite such
Stockholder's name on the signature pages
hereof
with a copy to:
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx
Xxxxx Plaza North
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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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 New Jersey, 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 Stockholders 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
"STOCKHOLDERS" "ACCREDITED" ADDRESS NUMBER OF NUMBER OF
(Yes/No) BENEFICIALLY BENEFICIALLY
OWNED CLASS OWNED CLASS
A SHARES B SHARES
Yes 549 Hampton 75 7,425
Hill Road
/s/ Xxxxxx X. Xxxxx Xxxxxxxx Lakes,
------------------------ New Jersey
Xxxxxx X. Xxxxx 07417
Yes 208 Franklin 74 7,235
Farm Court
Franklin Lakes,
/s/ Xxxxxxx X. Xxxxxxx New Jersey
------------------------ 07417
Xxxxxxx X. Xxxxxxx
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