EXHIBIT 10.40
IRREVOCABLE PROXY
The undersigned shareholder of Pameco Corporation, a Georgia
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Littlejohn Fund II, L.P., a Delaware limited
partnership ("Littlejohn"), the attorney and proxy of the undersigned with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to (i) the issued and outstanding shares of
voting Securities of the Company, whether common stock, preferred stock or
otherwise, owned of record by the undersigned as of the date of this proxy,
which Securities are specified on the final page of this proxy and (ii) any and
all other Securities of the Company as to which the undersigned may acquire
record ownership after the date hereof (the Securities of the Company referred
to in (clauses (i) and (ii) of the immediately preceding sentence are
collectively referred to as the "Subject Shares"). As of the Effective Time,
all prior proxies given by the undersigned with respect to any of the Subject
Shares are hereby revoked, and no subsequent proxies will be given with respect
to any of the Subject Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with a Shareholders Agreement, dated as of the date hereof,
between the Company, Littlejohn and the undersigned, a copy of which is attached
hereto and made a part hereof (as hereafter amended from time to time, the
"Shareholders Agreement"), and is granted in consideration of Littlejohn
entering into the Securities Purchase Agreement, dated as of the date hereof,
among Littlejohn, Quilvest American Equity, Ltd. ("Quilvest") and the Company
(as hereafter amended from time to time, the "Purchase Agreement"). Capitalized
terms used but not otherwise defined in this proxy have the meanings ascribed to
such terms in the Purchase Agreement.
The attorney and proxy named above will be empowered, and may exercise
this proxy, to vote the Subject Shares, at any time and from time to time, in
its sole and absolute discretion (subject only to the terms and conditions of
the Shareholders Agreement), at any meeting of the shareholders of the Company,
however called, or in any written action by consent of shareholders of the
Company, with respect to:
(a) the Matters to be Considered;
(b) any action or agreement that would result in a breach of any
covenant, obligation or agreement or any representation or warranty of the
Company or Quilvest under or pursuant to the Purchase Agreement;
(c) any action or agreement that would impede, interfere with,
delay, postpone or attempt to discourage obtaining the Required Approval (as
defined in the Purchase Agreement), including (i) any corporate transaction not
entered into in the ordinary course of business, including a merger, other
business combination, reorganization, consolidation, recapitalization,
dissolution or liquidation involving the Company, (ii) a sale or transfer of a
material amount of assets of Company, (iii) any election of members to the board
of directors of Company, (iv) any change in the capitalization of the Company,
except in accordance with the Purchase Agreement,
(v) any change in the Articles of Incorporation, By-laws or other organizational
or constitutive documents of the Company, except in accordance with the Purchase
Agreement, or (vi) any other material change in the corporate structure or
business of the Company; and
(d) so long as the Purchase Agreement has not been terminated in
accordance with its terms, on all other matters brought before a vote of the
shareholders, including a vote for the election of directors; provided, that
nothing contained in this proxy shall permit Littlejohn to vote the Subject
Shares in contravention of the provision of the Shareholders Agreement.
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Subject Shares in
accordance with the Shareholders Agreement).
The undersigned hereby confirms each and every action to be taken by
Littlejohn pursuant to this proxy as if it were its own and waives any right to
make any claim against Littlejohn that may arise, directly or indirectly, as a
result of Littlejohn's voting of any of the Subject Shares by virtue of this
proxy.
Any term or provision of this proxy which is invalid or unenforceable,
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this proxy or affecting the
validity or enforceability of any of the terms or provisions of this proxy in
any other jurisdiction. If any provision of this proxy is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
Notwithstanding anything to the contrary, this proxy shall become
effective only as of, and subject to, the occurrence of the Effective Time, and
shall terminate immediately upon the termination of the Shareholders Agreement
pursuant to Section 11 thereof and shall terminate earlier as to particular
Subject Shares to the extent set forth in Section 11 of the Shareholders
Agreement.
Dated: February 18, 2000
/s/ Willem de Vogel
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Willem de Vogel
Number of shares of Class A Common Stock,
$.01 par value per share, of the Company
owned of record as of the date of this proxy: ______
-2-
Number of shares of Class B Common Stock,
$.01 par value per share, of the Company
owned of record as of the date of this proxy: 122,379
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Number of shares of Series A Cumulative Convertible
Pay-in-Kind Preferred Stock, $1.00 par value per share, of the Company
owned of record as of the date of this proxy: ___________
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