-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AF6iRmFSB08xVybx5PWVdSU35VaZF7p42x12/ueHSlHnv/SRKilZSWE2folzbCfR gCLcf2Mb0MgICngvYfKJyw== 0000950123-02-010013.txt : 20021028 0000950123-02-010013.hdr.sgml : 20021028 20021028174250 ACCESSION NUMBER: 0000950123-02-010013 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021028 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GAGNE KEVIN M CENTRAL INDEX KEY: 0001201160 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 1911 LAKE MARKHAM PRESERVE TR CITY: SANFORD STATE: FL ZIP: 32771 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE FINANCIAL HOLDING CO CENTRAL INDEX KEY: 0001094320 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-78557 FILM NUMBER: 02800543 BUSINESS ADDRESS: STREET 1: 1385 WEST STATE ROAD 434 CITY: LONGWOOD STATE: FL ZIP: 32750 BUSINESS PHONE: 4077741300 MAIL ADDRESS: STREET 1: 1385 WEST STATE ROAD 434 CITY: LONGWOOD STATE: FL ZIP: 32750 SC 13D 1 y64923sc13d.txt SC 13D FOR KEVIN GAGNE UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A) Empire Financial Holding Company (Name of Issuer) Common Stock (Title of Class of Securities) 291658102 (CUSIP Number) Stanley Goldstein, Esq., Goldstein & DiGioia LLP, 45 Broadway - 11th Floor, New York, New York 10006 Tel. (212) 599-3322 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 28, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 240.13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] Page 1 of 7 CUSIP NO. 291658102 13D PAGE 2 OF 7 PAGES - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Kevin Gagne - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 2,000,000 (see item 6) NUMBER OF SHARES _________________________________________________________________ 8 SHARED VOTING POWER 5,100 (see item 6) BENEFICIALLY OWNED BY ----------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER 2,000,000 (see item 6) REPORTING PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER 5,100 (see item 6) WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,005,100 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [-] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 41.74% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - --------------------------------------------------------------------------------
CUSIP NO. 291658102 13D PAGE 3 OF 7 PAGES ITEM 1. SECURITY AND ISSUER This Report on Form 13D relates to the Common Stock, par value $0.01 per share of Empire Financial Holding Company, a Florida corporation with its principal address at 1385 West State Road 434, Longwood, Florida 32750. ITEM 2. IDENTITY AND BACKGROUND (a)(b)This Report of Form 13D is filed on behalf of Kevin Gagne, with his business address at 1385 West State Road 434, Longwood, Florida 32750. The telephone number at the business address is (407) 774-1300. The 2,000,000 shares of which Mr. Gagne holds sole dispositive power are held though the Gage First Revocable Trust, of which Mr. Gagne is trustee. (c) Mr. Gagne serves as Co-Chief Executive Officer, Co-President and Co-Chairman of the Board of Directors of Empire Financial Holding Company ("Empire" or "Issuer"). Empire Financial Holding Company is a holding company for three operating entities, Empire Financial Group, Inc., Advantage Trading Group, Inc. Empire Investment Advisors, Inc. Mr. Gagne also serves as President of Empire Financial Group, Inc. and Vice President of Advantage Trading Group, Inc. (d) During the last five years, Mr. Gagne has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, Mr. Gagne has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding been subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding such violation with respect to such laws. (f) Mr. Gagne is a United States citizen. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Mr. Gagne has filed this Report on Form 13D to reflect his beneficial ownership of 2,000,000 shares of Common Stock of Empire. Mr. Gagne has owned these shares since prior to the initial public offering of Empire which occurred in April 2002. The shares were acquired in connection with the founding of Empire. On April 9, 2002, Empire Financial Holding Company completed its initial public offering and became subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended. Mr. Gagne owned the shares reflected in this report prior to the date of the initial public offering. The shares were obtained with his personal funds. In addition, Mr. Gagne and Mr. Richard Goble jointly own, through G&G Holdings, Inc., another 5,100 shares of Empire. G&G Holdings is jointly owned by such persons. Page 3 of 7 CUSIP NO. 291658102 13D PAGE 4 OF 7 PAGES ITEM 4. PURPOSE OF TRANSACTION Mr. Gagne acquired the securities reflected in this Schedule 13D as an investment in connection with his founding of Empire. At the current time, Mr. Gagne presently has no plans or proposals that relate to or would result in any of the actions specified in subparagraphs (b) through (j) of Item 4 of Schedule 13D; provided, however, certain business related disputes have arisen between Mr. Gagne and Mr. Richard Goble who also serves as Co-Chairman and Co-Executive officer of Empire Financial Holding Company. These disputes regard the operations and management of Empire Financial Holding Company and its subsidiaries. These disputer have led, in the judgement of Mr Gagne, to a deadlock in the management of Empire, which may effect its operation and financial condition. There can be no assurance, in the opinion of Mr. Gagne, that he and Mr. Goble will resolve their differences or that the present Board of Directors will be able to resolve the differences. Mr. Gagne may determine it to be in his best interests to seek to nominate a new slate of directors to the Board of Directors of Empire Financial Holding Company at the next annual or special meeting of the shareholders of Empire in order to obtain a change in the members, and composition of, the Board of Directors. In addition, Mr. Gagne may seek to terminate, through litigation or otherwise, the Voting Agreement and Shareholders Agreement entered into by him with Mr. Richard Goble (as described in Item 6 below), both of which agreements impact the election of directors and composition of the Board of Directors of Empire and management of the Empire. Additionally, Mr. Gagne may purchase additional shares of stock of Empire. Please refer to Item 6 below. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Mr. Gagne has the sole beneficial ownership and dispositive power of 2,000,000 shares of Common Stock, reflecting 41.6% of the outstanding common Stock of Empire Financial Holding Company , based upon the number of shares reported as outstanding (4,802,800) in the Form 10QSB for the quarter ended June 30, 2002. In addition, Mr. Gagne has shared beneficial ownership of 5,100 shares of Empire with Mr. Richard Goble. (b) Mr. Gagne has sole power to vote or dispose of the 2,000,000 shares (41.6%) indicated except as described; provided, however, there are certain agreements between Mr. Gagne and Mr. Richard Goble as described in Item 6 below, which impact the voting and disposition of the shares owned by Mr. Gagne and Mr. Goble. In addition, Mr. Gagne has shared beneficial ownership of 5,100 shares of Empire with Mr. Richard Goble. (c) No transactions were effected by the reporting person within the last 60 days. Mr. Gagne may determine to purchase additional shares of Common Stock of Empire in the future. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Mr. Gagne serves as Co-Chairman of the Board of Directors, Co-President and Co-Chief Executive Officer of Empire Financial Holding Company. The other person serving in these capacities is Mr. Richard Goble. Mr. Gagne and Mr. Goble are parties to two (2) separate agreements which impact the voting and disposition of shares owned by each of them. Mr. Gagne disclaims any and all beneficial ownership of the Page 4 of 7 CUSIP NO. 291658102 13D PAGE 5 OF 7 PAGES shares owned by Mr. Goble. These agreements are described below. A. Shareholders Agreement. Mr. Gagne and Mr. Goble and the Issuer are parties to a Shareholders Agreement dated as of March 13, 2000. The Shareholders Agreement provides that neither Gagne nor Goble shall transfer, assign, pledge, encumber or otherwise dispose of any shares or other securities (including options and warrants) of the Issuer owned by them except in compliance with the Shareholders Agreement. The Shareholders Agreement grants to each of Gagne and Goble a "right of first refusal" with respect to the shares owned by the other party. Under this right of first refusal, in the event that one party desires to sell all or any part of his shares and has received an offer from a third party, then the shareholder proposing to sell ("selling shareholder") must first offer the shares to the non-selling party upon the same terms as the selling shareholder proposes to sell. The selling shareholder must advise the non selling shareholder within 10 days of receipt of the third party offer. The non selling shareholder has the right to accept the offer within 20 days of receipt of the selling shareholder's offer. The non-selling shareholder may purchase all or part of the shares being offered for sale. The shares which are not accepted for purchase by the non selling shareholder may be sold by the selling shareholder, but any sale must be completed within 60 days and in conformity with the original terms of the third party offer. Certain permitted transfers under the Shareholders Agreement include transfers to children, spouses, trusts and entities affiliated with the shareholders, all as more fully described in the Shareholders Agreement. B. Voting Agreement. Mr. Gagne and Mr. Goble and the issuer are parties to a Voting Agreement date as of March 13, 2000. The Voting Agreement is intended to cover the voting of the shares (and other securities, if any) owned by Mr. Gagne and Mr. Goble with respect to all maters to be voted upon by shareholders of the Issuer, including, without limitation: i. Any change in authorized stock or capital structure; ii any amendment to the Issuer's certificate of incorporation; iii the election of directors; iv any change in the number of directors; v any merger of the Company; and vi the adoption of any stock option plan. Pursuant to the agreement, the Shareholders agreed that at any meeting of shareholders of the Company and/or in connection with any corporate action by the shareholders of the Company pursuant to written consent or otherwise, all of the shares shall be voted with respect to any matter presented to the Page 5 of 7 CUSIP NO. 291658102 13D PAGE 6 OF 7 PAGES shareholders of the Company in the manner and to the effect unanimously determined by the Shareholders, in each of his sole and absolute discretion. In the event that the Shareholders are not able to make such unanimous determination with respect to any matter to be presented to the shareholders of the Company, then the Shareholders agree that the Shares shall not be voted by the Shareholders with respect to such matter, but shall be voted by the Shareholders with respect to such matter in the manner and to the effect of placing that matter as the last subject to be presented to the shareholders of the Company for discussion during such shareholders meeting. In the event that the Shareholders are not able to make a unanimous determination with respect to such matter during the shareholder meeting, then the Shareholders shall vote their Shares in favor of the adjournment of the meeting to a future date mutually acceptable to the Shareholders. Accordingly, during the term of the agreement, neither Shareholder shall vote or attempt to vote any Shares or otherwise exercise or attempt to exercise any voting or other approval rights of any Shares without the concurrence of all the other Shareholders, and any such prohibited exercise by such Shareholder of [remainder of page intentionally left blank] Page 6 of 7 CUSIP NO. 291658102 13D PAGE 7 OF 7 PAGES voting or other approval rights shall be void and of no force or effect. In addition, each Shareholder agrees that all Shares owned by such Shareholder shall be present, in person or by proxy, at any meeting of shareholders of the Company. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit A - Shareholders Agreement dated as of March 13, 2000. Exhibit B - Voting agreement dated as of March 13, 2000. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: October 28, 2002 Signature: /s/ Kevin Gagne ---------------------------- Name: Kevin Gagne ---------------------------- Page 7 of 7 EX-99.A 3 y64923exv99wa.txt SHAREHOLDERS AGREEMENT DATED AS OF MARCH 13, 2000 SHAREHOLDERS AGREEMENT This Shareholders Agreement (this "Agreement"), effective as of March 13, 2000, is entered into by and among Empire Financial Holding Company, a Florida corporation (the "Company"), Kevin M. Gagne and Richard L. Goble (collectively, the "Current Shareholders") and each future holder of record of Voting Stock (hereinafter defined) who executes this Agreement or a separate agreement to be bound by the terms hereof, regardless of when executed (the Current Shareholders and such future holders of record are hereinafter sometimes referred to collectively as the "Shareholders" and each individually as a "Shareholder"). RECITALS A. As of the date of this Agreement, the Current Shareholders are the record and beneficial owners of all of the outstanding Shares (as hereinafter defined). B. The Company and the Current Shareholders are willing to execute this Agreement and to be bound by the provisions hereof. NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: SECTION 1. PROHIBITION ON TRANSFERS 1.1 No Transfers Unless Expressly Permitted. No Shareholder shall sell, assign, transfer, pledge, hypothecate, mortgage, encumber or otherwise dispose of (each, a "Transfer") all or any of such Shareholder's Shares, except in compliance with the terms and conditions of this Agreement. As used in this Agreement, "Shares" shall mean and include all shares of the Common Stock or Preferred Stock of the Company, and rights, options or warrants to purchase such Common Stock or Preferred Stock, and securities of any type whatsoever that are, or may become, convertible or exchangeable into such Common Stock or Preferred Stock, now owned or hereafter acquired by any Shareholder. 1.2 Certain Permitted Transfers. Notwithstanding Section 1.1, nothing herein shall restrict: (i) a Transfer by a Shareholder of Shares to (A) to any spouse, child, child of a spouse, parent or grandchild of such Shareholder, (B) a trust of which there are no principal beneficiaries other than such Shareholder and one or more of such relatives of such Shareholder, (C) a partnership of which there are no partners other than such Shareholder, one or more of such relatives of such Shareholder or one or more trusts or corporations which would qualify as a Permitted Transferee (as defined below) under clause (0(B) or (0(D) hereof, or (D) a corporation of which there are no stockholders other than such Shareholder, one or more of such relatives of such Shareholder or one or more trusts or other corporations which would qualify as a Permitted Transferee under clause (0(B) or this (0(D) hereof~ (ii) any Transfer to a legal representative or guardian of a Shareholder in the event such Shareholder becomes mentally incompetent; (iii) any Transfer by will or the laws of descent; or (iv) any Transfer made in a market transaction in which the Shareholder does not solicit nor arrange for the solicitation of an order to buy the Shares; provided, however, that the aggregate amount of Transfers by the Shareholder in market transactions shall not exceed 10,000 Shares during any calendar quarter (each, a "Permitted Transferee"). SECTION 2. RIGHT OF FIRST REFUSAL 2.1 Right of First Refusal. (a) Except for Transfers permitted by Section 1.2, if at any time a Shareholder (the "Selling Shareholder") desires to Transfer all or any part of such Selling Shareholder's Shares pursuant to a bona fide offer from a third party (the "Proposed Transferee"), the Selling Shareholder must comply with the provisions of this Section prior to accepting the third party offer. Within ten days of receipt of a third party offer, the Selling Shareholder shall submit a written offer (the "Offer") to sell such Shares (the "Offered Shares") to the other Shareholders (excluding the Selling Shareholder) (the "Other Shareholders") on terms and conditions, including price, not less favorable than those on which the Selling Shareholder proposes to sell such Offered Shares to the Proposed Transferee. The Offer shall disclose the identity of the Proposed Transferee, the number of Offered Shares proposed to be sold, the total number of Shares owned by the Selling Shareholder, the terms and conditions, including price, of the proposed sale, and any other material facts relating to the proposed sale. The Offer shall further state (i) that the Other Shareholders may acquire, in accordance with the provisions of this Agreement, any of the Offered Shares for the price and upon the other terms and conditions set forth therein and (ii) that if all such Offered Shares are not purchased by any Other Shareholders, the remaining Other Shareholders may purchase any Offered Shares not purchased by any Other Shareholder. (b) Each Other Shareholder shall have the irrevocable and exclusive option, but not the obligation (the "Option"), to purchase all, but not less than all, of the Offered Shares in pro portion to the number of Shares owned by such Other Shareholder compared to the total number of Shares owned by all of the Other Shareholders for the purchase price and on the terms set forth in the Offer. The Option shall be exercisable by the Other Shareholders by giving notice of such exercise (the "Exercise Notice") to the Selling Shareholder and the Other Shareholders within 20 days following the Other Shareholder's receipt of the Offer. The Exercise Notice shall, when taken in conjunction with the Offer, be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Offered Shares. Failure by any Other Shareholder to exercise the Option or to give an Exercise Notice shall be deemed an election by such Other Shareholder not to exercise the Option. (c) If any of the Offered Shares are not purchased by the Other Shareholder pursuant to this Section 2.1, then, the Selling Shareholder may sell the Offered Shares at any time during the ensuing 60 days in strict conformity with the terms set forth in the Offer. Any such sale shall be to the Proposed Transferee, at not less than the price and upon other terms and conditions, if any, not more favorable to the Proposed Transferee than those specified in the Offer. If at the end of such 60-day period the Selling Shareholder has not sold the Offered Shares, all restrictions on the sale or transfer of the Offered Shares set forth in this Agreement shall again be in effect. 2.2 Closing. If any Shares are purchased by an Other Shareholder pursuant to the Option, then such purchases shall, unless the parties thereto otherwise agree, be completed at a closing to be held at the principal office of the Company on the tenth business day following the exercise of the Option. SECTION 3. MISCELLANEOUS 3.1 Term. This Agreement shall terminate only upon the earlier to occur of the occurrence of any one of the following events: (A) either of the Current Shareholders becomes the beneficial owner of less than ten percent of the aggregate voting rights of all of the then issued and outstanding capital stock of the Company; or (B) the death of either Current Shareholder or incapacity of either Current Shareholder to act hereunder or (C) the termination of this Agreement by written agreement of the Shareholders, which written agreement must be signed by each of the Shareholders. 3.2 Representations of Shareholders. Each Shareholder represents and warrants to the Company and each other Shareholder that as of the date of such Shareholder's execution of this Agreement, such Shareholder is the record and beneficial owner of the Shares indicated on Exhibit A attached hereto, free and clear of all liens, claims, encumbrances, and equities of every kind and character whatsoever. Each Shareholder agrees to indemnify and hold harmless the Company and each other Shareholder from and against any and all liabilities, losses, costs or expenses (including attorney's fees) arising from the breach or inaccuracy of the foregoing representation and warranty. 3.3 Amendments, Waivers and Consents. This Agreement shall not be changed, modified or amended in any respect except by the mutual written agreement of the parties hereto. Any provision of this Agreement may be waived in writing by the party which is entitled to the benefits thereof. No waiver of any provision of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall any such waiver constitute a continuing waiver 3.4 Governing Law. This Agreement shall be deemed to be a contract made under, and shall be construed in accordance with, the laws of the State of Florida, without giving effect to conflicts of laws principles thereof. Any proceedings of whatever nature brought to enforce the provisions of this Agreement shall be brought and heard in Seminole County, Florida, and the parties hereto consent to personal jurisdiction and venue in such forum. 3.5 Binding Effect: Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; but neither this Agreement nor any of the rights, benefits or obligations hereunder shall be assigned, by operation of law or otherwise, by any party hereto. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the parties hereto and their respective permitted successors and assigns, any rights, benefits or obligations hereunder. 3.6 Headings. The captions, headings and titles herein are for convenience of reference only and shall not effect the construction, meaning or interpretation of this Agreement or any term or provision hereof. 3.7 Notices and Demands. Any notices, requests, consents, demands and other communications required or permitted to be given hereunder must be in writing and, except as otherwise specified in writing, will be deemed to have been duly given when personally delivered, telexed or facsimile transmitted, or three days after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, addressed to the parties at its address set forth on Exhibit A or such other address as such party may specify by notice to the other parties hereto. 3.8 Severability. Any term or provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 3.9 Endorsement of Stock Certificates. Conformed copies of this Agreement shall be filed with the Secretary of the Company and kept with the records of the Company at its principal office. Certificates representing the Shares issued prior to the date of this Agreement to the Shareholders shall be recalled by the Company on or before one day after the effective date of this Agreement, and an officer of the Company shall endorse each certificate representing such Shares heretofore and hereafter issued by the Company to the Shareholders by causing to be placed on the face thereof the following: "See restrictions on back of certificate" and by causing to be placed on the back thereof the following legend: THE SHARES REPRESENTED BY THE WITHIN CERTIFICATE IS ISSUED, ACCEPTED AND HELD SUBJECT TO THE TERMS OF A SHAREHOLDERS AGREEMENT, DATED AS OF MARCH 13, 2000. A COPY OF SUCH SHAREHOLDERS AGREEMENT HAS BEEN FILED AT THE OFFICE OF THE CORPORATION. THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT AS PROVIDED IN SUCH SHAREHOLDERS AGREEMENT, TO ALL OF WHICH AND TO WHICH SHAREHOLDERS AGREEMENT THE HOLDER HEREOF, BY THE ACCEPTANCE HEREOF, AGREES. The Company may also cause to be imposed upon such certificates such other legends as counsel to the Company shall determine to be required under the provisions of any federal or state securities law. 3.10 Specific Performance. Each of the parties acknowledge that it will be impossible to measure in money the damage to the parties or to any of them, if any party fails to comply with any of the restrictions or obligations imposed by this Agreement, that every such restriction and obligation is material, and that in the event of any such failure, the other parties will not have an adequate remedy at law or in damages. Therefore, each party consents to the issuance of an injunction or the enforcement of other equitable remedies against her/him/it at the suit of an aggrieved party without bond or other security, to compel performance of all of the terms hereof, and waives any defenses thereto, including, without limitation, the defenses of (I) failure of consideration, (ii) breach of any other provision of this Agreement and (iii) availability of relief in damages. 3.11 Entire Agreement. This Agreement, including the exhibits referred to herein, constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. 3.12 Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute but one and the same document. (Continued on Signature Page) IN WITNESS WHEREOF, the parties hereto have executed this Shareholders Agreement on the date first written above. EMPIRE FINANCIAL HOLDING COMPANY By: ----------------------------------- Richard L. Goble, Co-Chairman of the Board By: ----------------------------------- Kevin M. Gagne, Co-Chairman of the Board KEVIN M. GAGNE ------------------------------ RICHARD L. GOBLE ------------------------------ EXHIBIT A LIST OF SHAREHOLDERS
NAME AND ADDRESS NUMBER OF SHARES HELD ---------------- --------------------- Kevin M. Gagne 2,000,000 Richard L. Goble 2,000,000
EX-99.B 4 y64923exv99wb.txt VOTING AREEEMENT DATED MARCH 13, 2000 VOTING AGREEMENT THIS VOTING AGREEMENT ("Agreement") is made and entered into as of the 13th day of March, 2000, by and between Kevin M. Gagne ("Gagne") and Richard L. Goble ("Goble" and collectively with Gagne, the "Shareholders"), each of whom is a shareholder of Empire Financial Holding Company, a Florida corporation (the "Company"). RECITALS A. Gagne and Goble each is the owner of record of 2,000,000 shares common stock, par value $.01 per share, of the Company ("Common Stock"). B. This Agreement is made and entered into pursuant to Section 607.0731 of the Florida Business Corporation Act. C. The Shareholders desire to establish certain rights and obligations regarding their beneficial ownership of Common Stock and are willing to enter into this Agreement to govern all shares of Common Stock presently beneficially owned by any one of the Shareholders and any and all shares of Common Stock of the Company acquired by them hereafter, whether by gift, devise, purchase, exercise of a warrant or option, receipt of stock dividend or otherwise (all shares of Common Stock presently beneficially owned or acquired hereafter by Shareholders are hereinafter Sometimes referred to in the aggregate as the "Shares"). As used in this Agreement, a Shareholder shall be a beneficial owner of all Shares in which the Shareholder, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise (other than pursuant to the terms of this Agreement) has or shares (1) voting power which includes the power to vote, or direct the voting of, such Shares; and/or (2) investment power which includes the power to dispose, or to direct the disposition of such Shares. D. The Shareholders deem it to be in their best interests to enter into this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, each of the parties hereto, intending legally to be bound, hereby agrees as follows: 1. INCORPORATION OF RECITALS. The parties to this Agreement hereby agree and acknowledge that all of the recitals set forth above are true, complete and correct in every respect and hereby incorporate said recitals into this Agreement by this reference. 2. REPRESENTATIONS OF SHAREHOLDER. The Shareholders hereby severally represent and warrant to each other that, each Shareholder: (a) owns and has the right to vote the number of Shares set forth above, (b) has full power to enter into this Agreement and has not, prior to the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement with respect to the Shares and (c) will not take any action inconsistent with the purposes and provisions of this Agreement. 3. SCOPE OF AGREEMENT. This Agreement shall govern the voting of the Shares by the Shareholders with respect to any and all matters voted upon by shareholders of the Company, whether at a meeting or pursuant to written consent or otherwise, including, but not limited to: (i) any change in the authorized capital stock or capital structure of the Company, including the creation of any additional class of shares; (ii) any amendment of the Company's Articles of Incorporation; (iii) any merger of the Company; (iv) the election of any director to the Company's Board of Directors; (v) any change in the number of directors fixed to serve on the Company's Board of Directors; and (vi) the adoption of any stock option plan. Unless terminated as hereinafter provided, this Agreement shall remain in effect without regard to any action taken by the shareholders of the Company. 4. CHANGES IN COMMON STOCK; DISPOSITIONS. In the event that subsequent to the date of this Agreement any shares of Common Stock or other securities of the Company or another corporation are issued on, or in exchange for, any of the Shares by reason of any stock dividend, stock split, consolidation of shares, reclassification, exchange, merger or consolidation or otherwise involving the Company, such shares of Common Stock or other securities shall be deemed to be Shares for purposes of this Agreement. Any Shares that are no longer beneficially owned by a Shareholder as a result of a sale, disposition or other transfer shall not be deemed to be Shares for purposes of this Agreement. 5. VOTING OF SHARES. The Shareholders agree and covenant that AT any meeting of shareholders of the Company and/or in connection with any corporate action by the shareholders of the Company pursuant to written consent or otherwise, all of the Shares shall be voted with respect to any matter presented to the shareholders of the Company in the manner and to the effect unanimously determined by the Shareholders, in each of his sole and absolute discretion. In the event that the Shareholders arc not able to make such unanimous determination with respect to any matter to be presented to the shareholders of the Company, then the Shareholders agree that the Shares shall not be voted by the Shareholders with respect to such matter, but shall be voted by the Shareholders with respect to such matter in the manner and to the effect of placing that matter as the last subject to be presented to the shareholders of the Company for discussion during such shareholders meeting. In the event that the Shareholders are not able to make a unanimous determination with respect to such matter during the shareholder meeting, then the Shareholders shall vote their Shares in favor of the adjournment of the meeting to future date mutually acceptable to the Shareholders. Accordingly, during the term of this Agreement, neither Shareholder shall vote or attempt to vote any Shares or otherwise exercise or attempt to exercise any voting or other approval rights of any Shares without the concurrence of all of the other Shareholders, and any such prohibited exercise by such Shareholder of voting or other approval rights shall be void and of no force or effect. In addition, each Shareholder agrees that all Shares owned by such Shareholder shall be present, in person or by proxy, at any meeting of shareholders of the Company. 6. TERMINATION. This Agreement shall terminate only upon the earlier to occur of the occurrence of any one of the following events: (A) either of the Shareholders becomes the beneficial owner of less than ten percent of the aggregate voting rights of all of the then issued and outstanding capital stock of the Company; or (B) the death of either Shareholder or incapacity of either Shareholder to act hereunder; or (C) the termination of this Agreement by written agreement of the Shareholders, which written agreement must be signed by each of the Shareholders. 7. LEGEND. The Shareholders will imprint all certificates for the Shares with notice of this Agreement. 8. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to rules regarding choice of law. Any proceedings of whatever nature brought to enforce the provisions of this Agreement shall be brought and heard in Seminole County, Florida, and the parties hereto consent to personal jurisdiction and venue in such forum. 9. BENEFITS BINDING EFFECT. This Agreement shall be for the benefit of and binding upon the parties hereto and their respective heirs, personal representatives, legal representatives, successors, assigns and transferees. 10. COUNTERPARTS. This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all the parties hereto, notwithstanding that all the parties are not signatories to the original or same counterpart. 11. AMENDMENT OR MODIFICATION. This Agreement may be altered, modified or amended only by the unanimous consent, in writing, of the parties subject hereto, either now or hereafter. Any such modification must be signed by each party to this Agreement and each signature must be acknowledged and notarized in order for the modification to take effect. 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, among the parties hereto with respect to such subject matter. 13. ENFORCEABILITY. The Shareholders expressly agree that this Agreement shall be specifically enforceable in any court of competent jurisdiction in accordance with its terms against each of the parties hereto. If any provision of this Agreement shall be declared void or unenforceable by any court or administrative board of competent jurisdiction, such provision shall be deemed to have been severed from the remainder of this Agreement and this Agreement shall continue in all respects to be valid and enforceable and shall be construed so as to best give effect to the purposes and intents hereof 14. REFERENCES. Whenever required by the context, and is used in this Agreement, the singular number shall include the plural and pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identification the person may require. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. ------------------------- Kevin M. Gagne ------------------------- Richard L. Goble 4 -----END PRIVACY-ENHANCED MESSAGE-----