EXHIBIT 10.72
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of March __, 1998, is between and among
XXXXXX X. XXXXX, an individual with an office at 0000 Xxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000 ("Xxxxx"), XXXXXX HOLDING COMPANY, LTD., an Ohio limited liability
company with an office at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 ("Xxxxxx"),
CONTIWEST CORPORATION, a Nevada corporation with an office at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Xxxxx"), and HARBERT EQUITY
FUND I, L.L.C., a Georgia limited liability company with an office at Xxx
Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Xxxxxxx").
W I T N E S S E T H :
WHEREAS, Xxxxx and Xxxxxx (collectively, the "Xxxxxx Parties")
beneficially own shares of the Common Stock, par value $.01 per share (the
"Stock"), of Crown NorthCorp, Inc., a Delaware corporation (the "Company");
and
WHEREAS, Xxxxx intends to acquire the Series BB Convertible
Preferred Stock, par value $.01 per share, of the Company (the "Series BB
Preferred Stock") pursuant to that certain Stock Purchase Agreement, dated as
of even date herewith, between and among Xxxxx and the Company (the "Stock
Purchase Agreement"); and
WHEREAS, Xxxxxxx beneficially owns shares of the Common Stock and
the Series AA Convertible Preferred Stock, par value $.01 per share, of the
Company (the "Series AA Preferred Stock"), and has rights to designate a
number of individuals for election as directors of the Company pursuant to
that certain Stock Purchase Agreement, dated as of March 7, 1997, between and
among the Company and Xxxxxxx, as amended to date (as so amended, the
"Xxxxxxx Stock Purchase Agreement") and pursuant to the Certificate of
Designation establishing the Series AA Preferred Stock, as filed with the
Secretary of State of the State of Delaware on January 21, 1988 (the "Series
AA Certificate of Designation"); and
WHEREAS, Xxxxxxx and the Xxxxx Parties are parties to that certain
Voting Agreement, dated as of March 7, 1997, between and among Harbert,
Roark, and Xxxxxx, as amended to date (as so amended, the "Xxxxxxx Voting
Agreement"), whereby (i) each of the Xxxxxx Parties has agreed, among other
things, to vote its shares in accordance with the provisions of the Xxxxxxx
Voting Agreement to more fully effectuate certain provisions of the Xxxxxxx
Stock Purchase Agreement and the Series AA Certificate of Designation, under
which Xxxxxxx is entitled to designate a number of individuals for election
as directors of the Company, and for other purposes, and (ii) Xxxxxxx and its
affiliates have agreed, among other things, to vote its shares in accordance
with the provisions of the Xxxxxxx Voting Agreement for the continued
election of Xxxxx as a Director of the Company; and
1
WHEREAS, Xxxxx desires that each of the Xxxxxx Parties and Xxxxxxx
agree to vote its shares in accordance with the provisions of this Agreement
to more fully effectuate certain provisions of the Certificate of Designation
establishing the Series BB Preferred Stock, as filed with the Secretary of
State of the State of Delaware on March __, 1998 (the "Certificate of
Designation"), under which Xxxxx is entitled to designate one individual for
election as a director of the Company; and
WHEREAS, Xxxxxxx desires that Xxxxx vote its shares in accordance
with the provisions of this Agreement to more fully effectuate certain
provisions of the Xxxxxxx Stock Purchase Agreement and the Series AA
Certificate of Designation, under which Xxxxxxx is entitled to designate a
number of individuals for election as a director of the Company; and
WHEREAS, the Xxxxxx Parties desire that Xxxxx and its affiliates
agree to vote their shares in accordance with the provisions of this
Agreement for the continued election of Xxxxx as a director of the Company;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the adequacy, sufficiency, and receipt of
which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein but not
otherwise defined herein shall have the meaning ascribed thereto in the Stock
Purchase Agreement.
SECTION 2. VOTING AGREEMENT OF THE XXXXXX PARTIES WITH RESPECT TO
XXXXX. Each of the Xxxxxx Parties, severally and not jointly, agrees:
(a) To vote all shares of securities issued by the Company
and entitled to vote in the election of directors ("Voting
Securities") beneficially owned by him or it for the
election of such nominee for election as a director of the
Company as Xxxxx is entitled to designate pursuant to the
Certificate of Designation;
(b) To cause (x) each of the members of Xxxxx'x immediate
family, (y) each entity controlled by any Xxxxxx Party, and
(z) each trust of which Xxxxx is a grantor (collectively,
the "Xxxxx Affiliates"), to vote all Voting Securities
beneficially owned by him, her, or it for the election as a
director of the Company of such nominee for election as a
director of the Company as Xxxxx is entitled to designate
for nomination as such pursuant to the Certificate of
Designation;
2
(c) In the event a director so designated for nomination by
Xxxxx ceases to be a director for any reason before his term
expires, to vote all shares of Voting Securities
beneficially owned by him or it in favor of another person
designated by Xxxxx for election as a director of the
Company to the extent Xxxxx is then entitled to designate
another person for election as a director of the Company
pursuant to the Certificate of Designation; and
(d) In the event a director of the Company so designated
for nomination by Xxxxx ceases to be a director of the
Company for any reason before his or her term expires, to
cause each of the Xxxxx Affiliates to vote all shares of
Voting Securities owned by him, her, or it in favor of
another individual designate for nomination by Xxxxx for
election as a director of the Company to the extent that
Xxxxx is then entitled to designated another person for
election as a director of the Company pursuant to the
Certificate of Designation.
Notwithstanding the foregoing, however, to the extent that the Xxxxxx
Parties beneficially own, but collectively do not possess the sole power to
vote or direct the voting of any such Voting Securities from time to time
(the shares as to which the Xxxxxx Parties do not so possess such voting
power being referred to herein as "Non-Exclusive Xxxxxx Shares"), they shall
be obligated to use their reasonable commercial efforts to cause such
Non-Exclusive Xxxxxx Shares to be voted in compliance with the foregoing.
SECTION 3. VOTING AGREEMENT OF XXXXX WITH RESPECT TO XXXXX. Xxxxx
agrees:
(a) To vote all shares of Voting Securities beneficially
owned by it for the election of Xxxxx as a director of the
Company;
(b) To cause each Person controlling it, controlled by it, or
under common control with it (collectively, the "Xxxxx
Affiliates") to vote all shares of Voting Securities owned
by him, her, or it for the election of Xxxxx as a director
of the Company;
(c) In the event that Xxxxx ceases to be a director for any
reason before his term as such expires, to vote all shares
of Voting Securities beneficially owned by it in favor of
another individual nominated by Xxxxx or, in the event of
Xxxxx'x death or incapacity, his heirs, legatees, executors,
successors, guardians, legal representatives, or
administrators, as the case may be, beneficially owning at
least a majority of the Voting Securities beneficially owned
by Xxxxx immediately
3
prior to his death or incapacity, for election as a director
of the Company; and
(d) In the event that Xxxxx ceases to be a director of the
Company for any reason before his term as such expires, to
cause each of the Xxxxx Affiliates to vote all shares of
Voting Securities owned by him, her, or it in favor of
another individual nominated by Xxxxx or, in the event of
Xxxxx'x death or incapacity, his heirs, legatees, executors,
successors, guardians, legal representatives, or
administrators, as the case may be, beneficially owning at
least a majority of the Voting Securities beneficially owned
by Xxxxx immediately prior to his death or incapacity, for
election as a director of the Company.
Notwithstanding the foregoing, however, to the extent that Xxxxx and the
Xxxxx Affiliates (collectively, the "Xxxxx Parties") collectively
beneficially own but do not possess the sole power to vote or direct the
voting of any such Voting Securities from time to time (the shares as to
which the Xxxxx Parties do not so possess such voting power being referred to
herein as "Non-Exclusive Xxxxx Shares"), then Xxxxx shall be obligated to use
its reasonable commercial efforts to cause such Non-Exclusive Xxxxx Shares to
be voted in compliance with the foregoing.
SECTION 4. VOTING AGREEMENT OF XXXXXXX WITH RESPECT TO XXXXX. Xxxxxxx
agrees:
(a) To vote all shares of Voting Securities beneficially
owned by it for the election as a director of the Company of
such nominee for election as a director of the Company as
Xxxxx is entitled to designate for nomination as such
pursuant to the Certificate of Designation;
(b) To cause each Person controlling it, controlled by it,
or under common control with it (collectively, the "Xxxxxxx
Affiliates") to vote all shares of Voting Securities
beneficially owned by him, her, or it for the election as a
director of the Company of such nominee for election as a
director of the Company as Xxxxx is entitled to designate
for nomination as such pursuant to the Certificate of
Designation;
(c) In the event a director of the Company so designated
for nomination by Xxxxx ceases to be a director of the
Company for any reason before his or her term as such
expires, to vote all shares of Voting Securities owned by it
in favor of another individual designated for nomination by
Xxxxx for election as
4
a director of the Company to the extent Xxxxx is then
entitled to designate such other individual for nomination
for election as a director of the Company pursuant to the
Certificate of Designation; and
(d) In the event a director of the Company so designated
for nomination by Xxxxx ceases to be a director of the
Company for any reason before his or her term as such
expires, to cause each of the Xxxxxxx Affiliates to vote all
shares of Voting Securities owned by him, her, or it in
favor of another individual designated for nomination by
Xxxxx for election as a director of the Company to the
extent Xxxxx is then entitled to designate such other
individual for nomination as a director of the Company
pursuant to the Certificate of Designation.
Notwithstanding the foregoing, however, to the extent that Xxxxxxx and
the Xxxxxxx Affiliates collectively beneficially own but do not possess the
sole power to vote or direct the voting of any such Voting Securities from
time to time (the shares as to which Xxxxxxx and the Xxxxxxx Affiliates do
not so possess such voting power being referred to herein as "Non-Exclusive
Xxxxxxx Shares"), they shall be obligated to use their reasonable best
efforts to cause such Non-Exclusive Xxxxxxx Shares to be voted in
compliance with the foregoing.
SECTION 5. VOTING AGREEMENT OF XXXXX WITH RESPECT TO XXXXXXX. Xxxxx
agrees:
(a) To vote all shares of Voting Securities beneficially
owned by it for the election as a director of the Company of
such nominees for election as a director of the Company as
Xxxxxxx is entitled to designate for nomination as such
pursuant to the Xxxxxxx Stock Purchase Agreement, the Series
AA Certificate of Designation, or both, as the case may be;
(b) To cause each of the Xxxxx Affiliates to vote all
shares of Voting Securities beneficially owned by him, her,
or it for the election as a director of the Company of such
nominees for election as a director of the Company as
Xxxxxxx is entitled to designate for nomination as such
pursuant to the Xxxxxxx Stock Purchase Agreement, the Series
AA Certificate of Designation, or both, as the case may be;
(c) In the event a director of the Company so designated
for nomination by Xxxxxxx ceases to be a director of the
Company for any reason before his or her term as such
expires, to vote all shares of Voting Securities owned by it
in favor of another
5
individual designated for nomination by Xxxxxxx for
election as a director of the Company to the extent Xxxxxxx
is then entitled to designate such other individual for
nomination for election as a director of the Company
pursuant to the Xxxxxxx Stock Purchase Agreement or the
Series AA Certificate of Designation, as the case may be;
and
(d) In the event a director of the Company so designated for
nomination by Xxxxxxx ceases to be a director of the Company
for any reason before his or her term as such expires, to
cause each of the Xxxxx Affiliates to vote all shares of
Voting Securities owned by him, her, or it in favor of
another individual designated for nomination by Xxxxxxx for
election as a director of the Company to the extent Xxxxxxx
is then entitled to designate such other individual for
nomination as a director of the Company pursuant to the
Xxxxxxx Stock Purchase Agreement or the Series AA
Certificate of Designation, as the case may be.
Notwithstanding the foregoing, however, to the extent that Xxxxx and
the Xxxxx Affiliates collectively beneficially own but do not possess the
sole power to vote or direct the voting of any such Voting Securities from
time to time , they shall be obligated to use their reasonable commercial
efforts to cause such Non-Exclusive Xxxxx Shares to be voted in compliance
with the foregoing.
SECTION 6. LEGENDS. Within thirty days after (i) with respect to
Voting Securities currently beneficially owned by them, the date hereof, and
(ii) with respect to Voting Securities of which they subsequently acquire
beneficial ownership, the date of such acquisition, the Xxxxxx Parties,
Xxxxx, and Xxxxxxx will, and the Xxxxxx Parties will cause the Xxxxx
Affiliates to, and Xxxxx will cause the Xxxxx Affiliates to, and Xxxxxxx will
cause the Xxxxxxx Affiliates to, deliver certificates representing the Voting
Securities beneficially owned by them to the Company for imprinting with the
following legend (which legend shall be removed, with respect to any of such
Voting Securities, upon the sale, assignment, or other transfer of such
Voting Securities to a Person not subject to the purview of this Agreement):
"The shares of such Voting Securities represented by this
certificate are subject to restrictions on voting, as provided in a
Voting Agreement dated as of March __, 1998, between and among
ContiWest Corporation, Xxxxxx Holding Company, Ltd., Xxxxxx X. Xxxxx,
and Xxxxxxx Equity Fund I, L.L.C., a copy of which is on file with the
Secretary of the Company."
SECTION 7. SECRETARY TO RETAIN COPY. A copy of this Agreement shall be
filed with the Secretary of the Company.
6
SECTION 8. STOCK CHANGES. The provisions of this Agreement shall be
deemed to apply equally to any share of Stock or other securities distributed
in respect of shares of Stock.
SECTION 9. FURTHER ACTIONS. At any time and from time to time each
party agrees, at its or his expense, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the
purposes of this Agreement.
SECTION 10. AVAILABILITY OF EQUITABLE REMEDIES. Since a breach of the
provisions of this Agreement could not adequately be compensated by money
damages, any party shall be entitled, in addition to any other right or
remedy available to him, to an injunction restraining such breach or a
threatened breach and to specific performance of any such provision of this
Agreement, and in either case no bond or other security shall be required in
connection therewith, and the parties hereby consent to such injunction and
to the ordering of specific performance.
SECTION 11. MODIFICATION. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all existing agreements among them concerning such subject matter
(except for the Xxxxxxx Voting Agreement), and may be modified only by a
written instrument duly executed by each party.
SECTION 12. NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested or delivered against receipt to the
party to whom it is to be given at the address of such party set forth in the
preamble to this Agreement. Except as otherwise specifically provided in
this Agreement, any notice given by certified mail shall be deemed given at
the time of certification thereof except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
SECTION 13. WAIVER. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
SECTION 14. BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and the
respective successors and assigns of the corporate parties hereto and the
respective assigns, heirs, and personal representatives of the individual
parties hereto.
SECTION 15. NO THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement.
7
SECTION 16. SEPARABILITY. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
SECTION 17. HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SECTION 18. PRONOUNS. Any masculine personal pronoun shall be
considered to mean the corresponding feminine or neuter personal pronoun, as
the context requires.
SECTION 19. COUNTERPARTS; GOVERNING LAW. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. It shall be governed by and construed in accordance with the
laws of the State of Delaware, without giving effect to conflict of laws.
8
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first written above.
XXXXXX HOLDING COMPANY, LTD.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
/s/ Xxxxxx X. Xxxxx
---------------------------------------
XXXXXX X. XXXXX
CONTIWEST CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Treasurer
& Secretary
XXXXXXX EQUITY FUND I, L.L.C.
BY: XXXXXXX MANAGEMENT CORPORATION,
MANAGER
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President & CFO
March __, 1998
Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
As you know, we have the right to nominate one individual for election
as a director of Crown NorthCorp, Inc., a Delaware corporation (the
"Company"), pursuant to the Certificate of Designation establishing the
Series BB Convertible Preferred Stock, par value $.01 per share, of the
Company, as filed with the Secretary of State of the State of Delaware on
March __, 1998 (the "Certificate of Designation"). We hereby agree to
nominate Xxxxx X. Xxxxxx for election as a director of the Company pursuant
to the Certificate of Designation from and after the date hereof until we
have appointed in writing a successor to replace Xx. Xxxxxx, for so long as
(i) we are so entitled to nominate an individual for election as a Director
of the Company pursuant to the Certificate of Designation, and (ii) Xx.
Xxxxxx is not disqualified from such nomination pursuant to the Certificate
of Designation.
Crown NorthCorp, Inc.
Page Two
March __, 1998
Moreover, at the time when we are no longer entitled to nominate one
individual for election as a director of the Company pursuant to the
Certificate of Designation, we agree to promptly cause any individual so
nominated by us who then is serving as a director of the Company to promptly
resign as a director of the Company.
CONTIWEST CORPORATION
By:
------------------------------------
Name:
Title: Authorized Signatory
By:
------------------------------------
Name:
Title: Authorized Signatory
