EXHIBIT 99.1
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY (this "AGREEMENT"), is made
and entered into as of November 17, 2004, by and between Xxxxxxx Xxxxxx (the
"SHAREHOLDER") and Coconut Palm Capital Investors II, Ltd., a Florida limited
partnership ("COCONUT PALM").
W I T N E S S E T H
WHEREAS, the Shareholder is the record and beneficial owner of the number
of shares of common stock of Sunair Electronics, Inc., a Florida corporation
(the "COMPANY") set forth on EXHIBIT A (such shares, or any other voting or
equity securities of the Company hereafter acquired by the Shareholder prior to
the termination of this Agreement, being referred to collectively as the
"SHARES");
WHEREAS, in accordance with the terms of that certain Purchase Agreement,
dated November 17, 2004, by and between the Company and Coconut Palm (including
all exhibits thereto, the "PURCHASE AGREEMENT"), the Company and Coconut Palm
intend to close the acquisition by Coconut Palm of the Initial Units (as defined
in the Purchase Agreement), and if elected by Coconut Palm, the Additional Units
(as defined in the Purchase Agreement) (collectively, the "TRANSACTIONS");
WHEREAS, Coconut Palm desires to have the Shareholder, and the Shareholder
desires, in order to induce Coconut Palm to proceed with closing the
Transactions, to agree to vote in favor of approving certain matters relating to
the Transactions that require approval of the Company's shareholders and that
are necessary to close the Transactions, each as set forth below; and
WHEREAS, this Agreement is made and entered into pursuant to Section
607.0731 of the Florida Business Corporation Act.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree as follows:
SECTION 1. Voting of Shares.
(a) The Shareholder covenants and agrees that until the Termination
Date (as defined below), at the meeting of the Company's shareholders or
any adjournment thereof to consider the Transactions, however called, and
in any action by written consent of the shareholders of the Company to
consider the Transactions, the Shareholder will vote, or cause to be
voted, all of the Shareholder's respective Shares in favor of the
Transactions as described in and, in every material respect, in accordance
with, the terms and conditions set forth in this Agreement.
(b) The Shareholder hereby IRREVOCABLY grants to and appoints
Coconut Palm, and any individual designated in writing by Coconut Palm, as
its proxy and attorney-in-fact (with full power of substitution), for and
in its name, place and stead, to vote its Shares at any meeting of the
shareholders of the Company, or any adjournment thereof, called with
respect to any of the matters specified in, and in accordance and
consistent with, this Section 1 and against any actions or approval that
would compete with or could serve to materially interfere with, delay,
discourage, adversely affect or inhibit the timely consummation of the
Transactions. The Shareholder understands and acknowledges that Coconut
Palm is entering into the Purchase Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement. The Shareholder
hereby affirms that the IRREVOCABLE proxy set forth in this Section 1(b)
is given in connection with the closing of the Transactions, and that such
IRREVOCABLE proxy is given to secure the performance of the duties of the
Shareholder under this Agreement. Except as otherwise provided for herein,
the Shareholder hereby affirms that the IRREVOCABLE proxy is coupled with
an interest and MAY UNDER NO CIRCUMSTANCES BE REVOKED. Notwithstanding any
other provisions of this Agreement, the IRREVOCABLE proxy granted
hereunder shall automatically terminate upon the termination of this
Agreement.
(c) The Shareholder hereby revokes any and all previous proxies
granted with respect to any of the Shares and shall not hereafter, until
this Agreement terminates, purport to grant any other proxy or power of
attorney with respect to any of the Shares or enter into any agreement
(other than this Agreement), arrangement or understanding with any person,
directly or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of any of the Shares covering the subject matter
hereof. Notwithstanding anything stated to the contrary, the foregoing
shall not prohibit the Shareholder from granting proxies in connection
with the annual meeting of the Company's shareholders with respect to
voting on matters other than the matters that are the subject matter of
this Agreement.
SECTION 2. TRANSFER OF SHARES. The Shareholder covenants and agrees that
until the termination of this Agreement, the Shareholder will not directly or
indirectly, (a) sell, assign, transfer (including by purchase, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares,
(b) deposit any of the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this Agreement, or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer (including by
purchase, interspousal disposition pursuant to a domestic relations proceeding
or otherwise by operation of law) or other disposition of any Shares unless the
transferee (i) enters into an agreement with Coconut Palm containing provisions
substantially similar to this Agreement and (ii) notifies Coconut Palm of such
transfer.
SECTION 3. SHAREHOLDER REPRESENTATIONS. The Shareholder represents to
Coconut Palm that (a) on the date hereof, the Shareholder is the record and
beneficial owner (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) of the Shares set forth next to the
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Shareholder's name on EXHIBIT A and that the Shareholder has sole voting power,
without restrictions, with respect to all of his shares of common stock of the
Company comprising the Shares; and (b) the Shareholder has the right, power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement, and this Agreement has been duly executed and delivered by
the Shareholder and constitutes a valid and legally binding agreement of the
Shareholder, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and such execution, delivery and performance by the
Shareholder of this Agreement will not (i) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under, any of the
terms of any contract, commitment or other agreement to which the Shareholder is
bound; (ii) violate any order, writ, injunction decree or statute, or any rule
or regulation, applicable to the Shareholder or any of the properties or assets
of the Shareholder or (iii) result in the creation of, or impose any obligation
on the Shareholder to create, any lien, charge or other encumbrance of any
nature whatsoever upon the Shares; and (c) the Shares are now and will at all
times during the term of this Agreement be held by the Shareholder, or by a
nominee or custodian for the account of the Shareholder, free and clear of all
pledges (other than the Shareholder's existing pledge of the Shares to First
State Bancorp New Mexico, which Coconut Palm hereby acknowledges), liens,
proxies, claims, shares, security interests, preemptive rights and any other
encumbrances whatsoever with respect to the ownership, transfer or voting of
such Shares; and there are no outstanding options, warrants or rights to
purchase or acquire, or other agreements relating to, such Shares other than
this Agreement.
SECTION 4. TERMINATION. This Agreement shall terminate upon the earlier to
occur of (a) the consummation of the Transactions, (b) any termination of the
Purchase Agreement in accordance with its terms or (c) upon the withdrawal by
the Company's Board of Directors of its approval of the transaction pursuant to
Section 8(n) of the Purchase Agreement.
SECTION 5. FURTHER ASSURANCES. The Shareholder from time to time will
execute and deliver, or cause to be executed and delivered, all further
appointments, documents and instruments and use its best efforts to take, or
cause to be taken, all actions reasonably requested by Coconut Palm to
consummate and make effective the transactions contemplated by this Agreement.
SECTION 6. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings, both written and oral, between
the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of
the parties hereto.
(b) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
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possible to the fullest extent permitted by applicable law in a mutually
acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
(c) The headings in this Agreement are inserted for convenience
only, and shall not constitute a part of this Agreement or be used to
construe or interpret any of its provisions. The parties have participated
jointly in the negotiation and drafting of this Agreement. If a question
of interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement. The word "include" or "including" means
include or including, without limitation. The use of a particular pronoun
herein will not be restrictive as to gender or number but will be
interpreted in all cases as the context may require.
(d) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Florida, without giving effect to
any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Florida. For any dispute
relating to this Agreement, the parties irrevocably submit, on a
non-exclusive basis, to the jurisdiction of the federal and state courts
in Broward County, Florida, agreeing to service of process, in addition to
any other manner permitted by applicable law, by any form of registered or
certified airmail, return receipt requested, such process to be effective
5 days after mailing, and further waive any argument that that forum would
be inconvenient.
(e) Each party hereto severally acknowledges that it will be
impossible to measure in money the damage to the other party if the party
hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event
of any such failure, the other party will not have an adequate remedy at
law or damages. Accordingly, each party hereto severally agrees that
injunctive relief or other equitable remedy, in addition to remedies at
law or damages, is the appropriate remedy for any such failure and will
not oppose the granting of such relief on the basis that the other party
has an adequate remedy at law. Each party hereto agrees that it will not
seek, and agrees to waive any requirement for, the securing or posting of
a bond in connection with any other party's seeking or obtaining such
equitable relief
(f) If any legal action or any other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any provision of this
Agreement, the prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
(g) All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been given if
sent by registered or certified mail, first class postage prepaid, return
receipt requested, to the address of such parties set forth below or such
other future address as may be specified by any party by notice to all of
the other parties. Such communications may also be given by personal
delivery, by facsimile or by regular mail, but shall be effective only if
and when actually received.
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If to Coconut Palm, at:
Coconut Palm Capital Investors II, Ltd.
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Fax: 000-000-0000
If to the Shareholder, at:
Xxxxxxx Xxxxxx
XX XXX 00000
Xxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
(h) This Agreement may be executed in two or more original or
facsimile counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Voting
Agreement and Irrevocable Proxy to be signed individually or by its respective
duly authorized officer as of the date first written above.
COCONUT PALM CAPITAL INVESTORS II, LTD.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SHAREHOLDER:
/s/ XXXXXXX XXXXXX
--------------------------------
Xxxxxxx Xxxxxx
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EXHIBIT A
BENEFICIAL OWNER NUMBER OF SHARES BENEFICIALLY OWNED
---------------- -----------------------------------
Xxxxxxx Xxxxxx 2,056,700
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