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EXHIBIT 99.01
VOTING AGREEMENT
VOTING AGREEMENT dated as of January 6, 1999, between The FINOVA Group
Inc., a Delaware corporation ("Parent"), and the persons listed on Schedule A
hereto (collectively, the "Securityholders").
WHEREAS, Parent, FINOVA Newco Inc., a Delaware corporation ("Merger
Sub"), and Sirrom Capital Corporation, a Tennessee corporation (the "Company"),
propose to enter into an Agreement and Plan of Merger, dated the date hereof (as
the same may be amended or supplemented, the "Merger Agreement") providing for
the merger of Merger Sub with and into the Company (the "Merger");
WHEREAS, each Securityholder, as of the date hereof, owns in the
aggregate (including shares held both beneficially and of record and other
shares held either beneficially or of record) the number of shares of common
stock, no par value, of the Company (the "Common Shares") set forth opposite
such Securityholder's name on Schedule A hereto and; such Common Shares, as they
may be adjusted by stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other chance or
transaction of or by the Company, together with securities that may be acquired
after the date hereof by such Securityholder including Common Shares issuable
upon the exercise of options to purchase Common Shares (as the same may be
adjusted as aforesaid), being collectively referred to herein as the
"Securities"; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Securityholders (who include all of the
members of the Board of Directors of the Company) enter into this Agreement
(capitalized terms not otherwise defined herein shall have the meanings set
forth in Merger Agreement);
NOW, THEREFORE, to induce Parent to enter into, and in consideration of
it entering into the Merger Agreement, and in consideration of the premises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. COVENANTS OF THE SECURITYHOLDERS. Each Securityholder, severally and
not jointly, agrees as follows:
(a) The Securityholder shall not, except as contemplated by
the terms of this Agreement, (i) sell, transfer, pledge, assign or otherwise
dispose of, or enter into any Contract (as defined below), option or other
arrangement (including any profit sharing arrangement) or understanding with
respect to the sale, transfer, pledge, assignment or other disposition of, the
Securities to any person or entity other than Parent or Parent's designee, (ii)
enter into any voting arrangement, whether by proxy, voting agreement, voting
trust, power-of-attorney or otherwise, with respect to the Securities, or (iii)
take any other action that would in any way restrict, limit or interfere with
the performance of its obligations hereunder or the transactions contemplated
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hereby; provided, however, that any Securityholder that is an individual may
transfer all or any part of his or her Securities to any sibling or any other
member of his or her immediate family, any of his or her lineal descendants or
any trust for the benefit of any of them, if the recipient of the Securities
agrees in advance, in a writing delivered to Parent, to be bound by this
Agreement.
(b) Until the Merger is consummated or the Merger Agreement is
terminated, the Securityholder shall not, nor shall the Securityholder permit
any investment banker, financial adviser, attorneys accountant or other
representative or the Securityholder to, directly or indirectly (i) solicit,
initiate or encourage (including, by way of furnishing information), or take any
other action designed or reasonably likely to facilitate, any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal or (ii) participate in any discussions or
negotiations regarding any Acquisition Proposal. Without limiting the foregoing,
it is understood that any violation of the restrictions set forth in the
preceding sentence by an investment banker, financial advisor, attorney,
accountant or other representative or agent of the Securityholder, acting on
behalf of such Securityholder and not on behalf of the Company shall be deemed
to be a violation of this Section l(b) by the Securityholder. Notwithstanding
the foregoing, any Securityholder that is a director of the Company shall not
violate this Section 1(b) to the extent that the Company's Board of Directors is
permitted to act under Section 4.4(b) and 4.14(a) of the Merger Agreement.
(c) At any meeting of Securityholders of the Company called to
vote upon the Merger and the Merger Agreement or at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, each Securityholder shall vote (or cause to be voted) such
Securityholder's Securities in favor of the Merger, the adoption of the Merger
Agreement and the approval of the other transactions contemplated by the Merger
Agreement. At any meeting of Securityholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Securityholder's vote, consent or other approval is sought, such Securityholder
shall vote (or cause to be voted) such Securityholder's Securities against (i)
any merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company or
any other Acquisition Proposal (collectively, "Alternative Transactions") or
(ii) any amendment of the Company's Charter or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement including any consent to the treatment of any Securities in
or in connection with such transaction (collectively, "Frustrating
Transactions").
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(d) No person executing this Agreement who is or becomes
during the term hereof a director or officer of the Company makes any agreement
or understanding herein in his or her capacity as such director or officer. Each
Securityholder signs solely in his or her capacity as the record holder and/or
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of such Securityholder's Securities and nothing herein shall
limit or affect any actions taken by a Securityholder in its capacity as an
officer or director of the Company to the extent specifically permitted by the
Merger Agreement.
2. GRANT OF IRREVOCABLE PROXY COUPLED WITH AN INTEREST; APPOINTMENT OF
PROXY.
(a) Each Securityholder hereby irrevocably grants to, and
appoints, Samuel L. Eichenfield, Matthew Breyne, Glenn E. Gray or any other
individual designated by Parent, and each of them, such Securityholder's proxy
and attorney-in-fact with full power of substitution), for and in the name,
place and stead of such Securityholder, to vote such Securityholder's
Securities, or grant a consent or approval in respect of such Securities, at any
meeting of Securityholders of the Company or at any adjournment thereof or in
any other circumstances upon which their vote, consent or their approval is
sought, (i) in favor of the Merger, the adoption by the Company the Merger
Agreement and the approval of the other transactions contemplated by the Merger
Agreement, and (ii) against any Alternative Transaction or Frustrating
Transaction.
(b) Each Securityholder represents that any proxies heretofore
given in respect of such Securityholder's Securities are not irrevocable, and
that any such proxies are hereby revoked.
(c) EACH SECURITYHOLDER HEREBY AFFIRMS THAT THE PROXY SET
FORTH IN THIS SECTION 2 IS COUPLED WITH INTEREST AND IS IRREVOCABLE UNTIL SUCH
TIME AS THIS AGREEMENT TERMINATES IN ACCORDANCE WITH ITS TERMS. Such
Securityholder hereby further affirms that the irrevocable proxy is given in
connection with the execution of the Merger Agreement and that such irrevocable
proxy is given to secure the performance of the duties of such Securityholder
under this Agreement. Such Securityholder hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable in accordance
with provisions of Section 48-17-203(d) of the Tennessee Business Corporation
Act ("TBCA"). Such irrevocable proxy shall be valid until the later to occur of
(i) one year from the date hereof or (ii) termination of this Agreement in
accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDERS.
Securityholder hereby, severally and not jointly, represents and warrants to
Parent as follows:
(a) The Securityholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions
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contemplated hereby have been duly authorized by the Securityholder. This
Agreement has been duly executed and delivered by the Securityholder and
constitutes a valid and binding obligation of the Securityholders enforceable
against the Securityholder in accordance with its terms. Except for the
informational filings with the Securities and Exchange Commission, neither the
execution, delivery or performance of this Agreement by the Securityholder of
the transactions contemplated hereby will (i) require any filing with, or
permit, authorization, consent or approval of, any federal, state, local or
municipal foreign or other government or subdivision, branch, department or
agency thereof or any government or quasi-governmental authority of any nature,
including any court or other tribunal, (a "Governmental Entity"), (ii) result in
a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default under, or give rise to any right of termination,
amendment, cancellation or acceleration under, or result in the creation of any
Lien upon any of the properties or assets of the Securityholder under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, permit, concession, franchise, contract, agreement or other
instrument or obligation (a "Contract") to which the Securityholder is a party
or by which the Securityholder or any of the Securityholder's properties or
assets, including the Securityholder's Securities, may be bound or (iii) violate
any judgment, order, writ, preliminary or permanent injunction or decree (an
"Order") or any statute, law, ordinance, rule or regulation of any Governmental
Entity (a "Law") applicable to the Securityholder or any of the Securityholder's
properties or assets, including the Securityholder's Securities.
(b) THE SECURITIES. The Securityholder's Securities and the
certificates representing such Securities are now, and it all times during the
term hereof will be, held by such Securityholder, or by a nominee or custodian
for the benefit of such Securityholder, and such Securities are not subject to
any proxies, voting trusts or agreements, understandings, arrangements or other
similar restrictions. The Securityholder owns of record or beneficially no
securities of the Company, or any options, warrants or rights exercisable for
securities of the Company, other than such Securityholder's Securities and
shares of Common Stock issuable upon the exercise of any Company options, in
each case as set forth on Schedule A hereto.
(c) BROKERS. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of such
Securityholder.
(d) MERGER AGREEMENT. The Securityholder understands and
acknowledges that Parent is entering into, the Merger Agreement in reliance upon
the Securityholder's execution and delivery of this Agreement.
4. BOARD APPROVAL. The Board of Directors of the Company has duly and
validly authorized and approved by all necessary corporate action, this
Agreement, the Merger Agreement and the transactions contemplated hereby and
thereby, so that by the execution and delivery hereof no restrictive provision
of any "fair price," "moratorium," "control-share
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acquisition," "interested shareholders" or other similar anti-takeover statute
or regulation (including, without limitation, Section 48-35-205 of the TBCA) or
restrictive provision of any applicable anti-takeover provision in the Articles
of Incorporation or by-laws of the Company is, or at the closing of the
transactions contemplated hereby will be, applicable to the Company, Parent, the
Securities, the Merger or any other transaction contemplated by this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby represents
and warrants to the Securityholders as follows:
(a) AUTHORITY. Parent has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Parent and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Parent. This Agreement has been duly executed and delivered by Parent and
constitutes a valid and binding obligation of the Securityholders, constitutes a
valid and binding obligation of Parent enforceable in accordance with its terms.
6. FURTHER ASSURANCES. Each Securityholder will, from time to time,
execute and deliver, or cause to be executed and delivered. such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Securityholder's Securities as contemplated by Section 2. Parent agrees to use
reasonable efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed with respect to
the transactions contemplated by this Agreement.
7. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
8. TERMINATION. This Agreement, including all rights and obligations of
the parties hereunder, shall terminate upon the earlier of the termination of
the Merger Agreement pursuant to Section 6.1 thereof or the Effective Time,
PROVIDED, HOWEVER, that if the Merger Agreement is terminated pursuant to
Section 6.1(d), 6.1(g) or 6.1(h) of the Merger Agreement and at the time of
termination there shall have been an Acquisition Proposal, this Agreement shall
not terminate until the earlier of (i) four months following the termination of
the Merger Agreement or (ii) payment to the Parent of a Termination Fee pursuant
to Section 6.2.
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9. STOP TRANSFER. The Company agrees with, and covenants to, Parent
that the Company shall not register the transfer of any certificate representing
any Securityholder's Securities unless such transfer is made in accordance with
the terms of this Agreement.
10. GENERAL PROVISIONS.
(a) EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
(b) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(c) NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed given upon receipt to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to Parent, to
The FINOVA Group Inc.
1850 N. Central Avenue
P.O. Box 2209
Phoenix, Arizona 85002-2209
Facsimile: (602) 207-1019
with a copy to:
Jeffrey N. Klauder
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103
Facsimile: (215) 963-5694
and
(ii) if to a Securityholder, to the address set forth
under the name of such Securityholder on Schedule A hereto
with a copy to:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, TN 37238
Telecopy: (615) 742-6262
Attention: Bob F. Thompson
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(d) INTERPRETATION. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(e) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(f) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without regard to
any applicable conflicts of law, except that the provisions of the TBCA shall
apply with respect to the granting of the irrevocable proxy pursuant to Section
2(c) hereof.
(h) PUBLICITY. Except as otherwise required by law, court
process or the rules of a national securities exchange or the New York Stock
Exchange or as contemplated or provided in the Merger Agreement, for so long as
this Agreement is in effect, neither any Securityholder nor Parent shall issue
or cause the publication of any press release or other public announcement with
respect to the transactions contemplated by this Agreement or the Merger
Agreement without the consent of the other parties, which consent shall not be
unreasonably withheld.
11. ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States. This
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
EACH SECURITYHOLDER AGREES THAT, IN CONNECTION WITH ANY
LEGAL SUIT OR PROCEEDING ARISING WITH RESPECT TO THIS AGREEMENT IT
SHALL SUBMIT TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF DELAWARE AND AGREES TO VENUE IN SUCH COURTS. EACH
SECURITYHOLDER HEREBY APPOINTS THE SECRETARY OF THE COMPANY AS ITS AGENT FOR
SERVICE OF PROCESS FOR PURPOSES OF THE FOREGOING SENTENCE ONLY. EACH PARTY
HERETO WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY SUCH SUIT OR
PROCEEDING.
IN WITNESS WHEREOF Parent has caused this Agreement to be signed by its
officer thereunto duly authorized and each Securityholder has signed this
Agreement, all as of the date first written above.
THE FINOVA GROUP INC.
By: /s/ Glenn E. Gray
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Name: Glenn E. Gray
Title: Vice President
SECURITYHOLDER
By: /s/ E. Townes Duncan
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Name: E. Townes Duncan
SECURITYHOLDER
By: /s/ William D. Eberle
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Name: William D. Eberle
SECURITYHOLDER
By: /s/ Edward J. Mathias
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Name: Edward J. Mathias
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SECURITYHOLDER
By: /s/ Robert A. McCabe, Jr.
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Name: Robert A. McCabe, Jr.
SECURITYHOLDER
By: /s/ George M. Miller, II
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Name: George M. Miller, II
SECURITYHOLDER
By: /s/ John A. Morris, Jr., M.D.
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Name: John A. Morris, Jr., M.D.
SIRROM PARTNERS, L.P.
By: /s/ John A. Morris, Jr., M.D.
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Name: John A. Morris, Jr., M.D.
SECURITYHOLDER
By: /s/ Raymond H. Pirtle, Jr.
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Name: Raymond H. Pirtle, Jr.
SECURITYHOLDER
By: /s/ Keith M. Thompson
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Name: Keith M. Thompson
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SECURITYHOLDER
By: /s/ Christopher H. Williams, III
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Name: Christopher H. Williams, III
SECURITYHOLDER
By: /s/ L. Edward Wilson
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Name: L. Edward Wilson
JOINDER
The undersigned joins in the execution and delivery of this Agreement
for the sole purpose of agreeing to be bound by the provisions of Section 9 of
this Agreement.
SIRROM CAPITAL CORPORATION
By: /s/ David M. Traversi
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Name: David M. Traversi
Title: President
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SCHEDULE A TO EXHIBIT 2
COMMON ADDITIONAL SECURITIES
NAME AND ADDRESS SHARES BENEFICIALLY OWNED
- ---------------- ------ ------------------
E. Townes Duncan 400 Options to purchase
Solidus 12,000 shares
30 Burton Hills Boulevard
Suite 100
Nashville, TN 37215
William D. Eberle 3,000 Options to purchase
13 Garland Road 32,000 shares
Concord, MA 01742
or
1059 Buttonwood Lane
Bandy Beach, Unit D-101
Sanibel, FL 33957
Edward J. Mathias 128,660 Options to purchase
The Carlyle Group 32,000 shares
1001 Pennsylvania Avenue, N.W.
Suite 220 S.
Washington, D.C. 20004
Robert A. McCabe, Jr. 200 Options to purchase
First American Bank 20,400 shares
First American Center
6th Floor
Nashville, TN 37237
George M. Miller, II 215,318 (Direct) Options to purchase
500 Church Street 190,830 (held by 1,224,680 shares
Suite 200 three trusts the
Nashville, TN 37219 trustee of which is
Mr. Miller's Wife)
John A. Morris, Jr., M.D. 716,112 (by
243 Medical Center South Sirrom, Ltd.)
2100 Pierce Avenue 3,402,296 (by
Nashville, TN 37212 Sirrom Partners,
L.P.)
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Raymond H. Pirtle, Jr. 37,456 Options to purchase
Equitable Securities 44,000 shares
900 Nashville City Center
Nashville, TN 37219
Keith M. Thompson 11,000 Options to purchase
Republic Automotive Parts 16,000 shares
500 Wilson Pike Circle, Ste. 115
Brentwood, TN 37027
Christopher H. Williams, III 609,358
Harris Williams & Co.
707 East Main Street, 19th Floor
Richmond, VA 23219
L. Edward Wilson 107,327 Options to purchase
SRF, Inc. 44,000 shares
500 Church Street
Suite 200
Nashville, TN 37219