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EXHIBIT 4.a.2
VOTING AND SUPPORT AGREEMENT
AGREEMENT, dated October 31, 2000 (this "Agreement"), by and
among Allied Capital Corporation, a Maryland corporation ("Acquiror"), Robert
Tannenhauser, Carol Tannenhauser, David Tannenhauser, Emily Tannenhauser, Peter
Blanck, Richard Blanck, Jennifer Goldstein, Dianne Rosenfeld, R. Matthew McGee
and Futuronics Corporation, a New York corporation (collectively the
"Shareholders").
W I T N E S S E T H:
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WHEREAS, concurrently herewith, Acquiror and BLC Financial
Services, Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement)
pursuant to which a subsidiary of Acquiror will be merged with and into the
Company (the "Merger");
WHEREAS, the Shareholders collectively own of record or are
Beneficial Owners of shares (the "Shares"), par value $0.01 per share, of common
stock of the Company ("Common Stock"); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Acquiror has required that the Shareholders agree, and the
Shareholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
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1. Provisions Concerning Shares. (a) Each Shareholder hereby
agrees that during the period commencing on the date hereof and continuing until
this provision terminates pursuant to Section 5 hereof, at any meeting of the
holders of shares of Common Stock, however called, or in connection with any
written consent of the holders of shares of Common Stock, such Shareholder shall
vote (or cause to be voted) the Shares held of record or Beneficially Owned (as
defined below) by such Shareholder, whether heretofore owned or hereafter
acquired, (i) in favor of the adoption of the Merger Agreement and any actions
required in furtherance thereof and hereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement (after giving effect to any materiality or similar qualifications
contained therein); and (iii) except as otherwise agreed to in writing in
advance by Acquiror, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company; (B) a sale, lease or transfer of a material
amount of assets of the Company, or a reorganization, recapitalization,
dissolution or liquidation of the Company; (C) (1) any change in a majority of
the persons who constitute the board of directors of the Company; (2) any change
in the present capitalization of the Company or any amendment of the Company's
Articles of Incorporation or By-Laws; (3) any other material change in the
Company's corporate structure or business. None of the Shareholders shall enter
into any agreement or understanding with any person the effect of which would be
inconsistent or violative of the provisions and agreements contained in Section
1 or 2 hereof. For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a person shall include securities Beneficially
Owned by all other persons with whom such person would constitute a "group" as
within the meanings of Section 13(d)(3) of the Exchange Act.
(b) In furtherance of the foregoing each Shareholder hereby
agrees to vote in accordance with the provisions of the preceding paragraph.
2. Other Covenants, Representations and Warranties. Each
Shareholder hereby agrees, severally and not jointly, represents and warrants as
to itself to Acquiror as follows:
(a) Ownership of Shares. Each Shareholder is the Beneficial Owner
of the number of shares set forth opposite such Shareholder's name on Schedule I
hereton. On the date hereof, such Shares constitute all of the shares of Common
Stock owned of record or Beneficially Owned by such Shareholder. Such
Shareholder has with respect to the Shares Beneficially Owned by such
Shareholder sole voting power and sole power to issue instructions with respect
to the matters set forth in Section 1 hereof, sole power of disposition, sole
power of conversion, sole power to demand appraisal rights and, subject to the
receipt of any required
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governmental approvals sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all such Shares Beneficially Owned
by such Shareholder, with no limitations, qualifications or restrictions on such
rights.
(b) Power; Binding Agreement. Such Shareholder has all necessary
power, authority or competence (if a natural person) to execute, deliver and
perform this Agreement. The execution, delivery and performance of this
Agreement by such Shareholder will not violate any other agreement to which such
Shareholder is a party including, without limitation, any voting agreement,
shareholders agreement or voting trust. The execution and delivery of this
Agreement by such Shareholder, the performance by such Shareholder of its
obligations hereunder and the consummation by such Shareholder of the
transactions contemplated hereby have been duly authorized in the case of such
Shareholder who is not natural a person by all requisite action on the part of
such Shareholder, and no other corporate or other proceedings on the part of
such Shareholder are necessary to approve this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Shareholder, enforceable against such Shareholder
in accordance with its terms.
(c) No Conflicts. (A) No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such Shareholder
and, the consummation by such Shareholder of the transactions contemplated
hereby and (B) none of the execution and delivery of this Agreement by such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby or compliance by such Shareholder with any of the provisions
hereof shall (1) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Shareholder is a
party or by which such Shareholder or any of such Shareholder's properties or
assets may be bound, or (2) violation any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Shareholder or
any of such Shareholder's properties or assets.
(d) No Solicitation. From and after the date hereof and
continuing until this provision terminates pursuant to Section 5 hereof and
except as permitted by the Merger Agreement, such Shareholder shall immediately
cease any existing discussions or negotiations with any third parties conducted
prior to the date hereof with respect to any Acquisition Proposal. Such
Shareholder shall not, directly or indirectly, through any officer, director,
employee, representative or agent or any of the Company's Subsidiaries, (i)
solicit or initiate any Acquisition Proposal, (ii) engage in negotiations or
discussions concerning or provide any nonpublic information to any person or
entity relating to, any Acquisition Proposal or (iii) agree to or approve any
Acquisition Proposal.
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(e) Restriction on Transfer, Proxies and Non-Interference. Such
Shareholder shall not, directly or indirectly, during the period commencing on
the date hereof and continuing until this provision terminates pursuant to
Section 5 hereof: (i) except (A) as contemplated by the Merger Agreement, (B) as
a result of the operation of law or (C) as in connection with the exercise of
any Company Options, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of their Shares or any interest therein; (ii) except as contemplated
by this Agreement, grant any proxies or powers of attorney, deposit any Shares
Beneficially Owned by such Shareholder into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any of its representations or warranties contained herein untrue or
incorrect or have the effect of preventing or disabling any of them from
performing his or her obligations under this Agreement.
(f) Reliance by Acquiror. Such Shareholder understands and
acknowledges that Acquiror is entering into the Merger Agreement in reliance
upon such Shareholder's execution and delivery of this Agreement.
3. Further Assurances. From time to time, at the other party's
request and without further consideration, each Shareholder, on the one hand,
and Acquiror, on the other hand, shall execute and deliver such additional
documents and take all such further lawful action as may be necessary or
desirable in Acquiror's reasonable judgment to consummate and make effective, in
the most expeditious manner practicable, the transactions contemplated by this
Agreement and the Merger Agreement.
4. Stop Transfer. Each Shareholder agrees with, and covenants to,
Acquiror that such Shareholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing the Shares, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
5. Termination. Except as otherwise provided herein, the
covenants and agreements contained in Sections 1 through 4 hereof with respect
to the Shares shall terminate (a) in the event the Merger Agreement is
terminated in accordance with the terms of Article 12 thereof, upon such
termination, and (b) in the event the Merger is consummated, at the Effective
Time.
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6. Reorganization. Each shareholder and the Acquiror understands
that the Merger is intended to qualify as a reorganization within the meaning of
section 368(a) of the Internal Revenue Code of 1986, as amended, and agrees that
it will not take any action or omit to take any action including taking any
position on any tax return, inconsistent with such qualification or that would
disqualify the Merger as a reorganization.
7. Miscellaneous.
(a) Entire Agreement. This Agreement and constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Assignment. Except for any assignment pursuant to a transfer
permitted by Section 2(e)(i), this Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other party. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors.
(c) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the relevant
parties hereto.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, or when sent by facsimile transmission (with
receipt confirmed by an electronically generated written confirmation),
addressed as follows (or to such other address as a party may designate by
notice to the others):
If to the Shareholders: To the addresses set forth on the Signature Pages hereto
with a concurrent copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Simeon Gold
Telecopy No.: (212) 310-8007
If to Acquiror: Allied Capital Corporation
1919 Pennsylvania Ave., 3rd Floor
Washington, D.C., 20006
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Attention: Joan M. Sweeney
Telecopy No.: (202) 973-6351
with a concurrent copy to:
Sutherland Asbill & Brennan LLP
1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Attention: James D. Darrow
Telecopy No.: (202) 637-3593
(e) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(f) Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(g) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any person or entity
who or which is not a party
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hereto. Without limiting the foregoing, no direct or indirect holder of any
equity interests or securities of any party hereto (whether such holder is a
limited or general partner, member, stockholder or otherwise), nor any affiliate
of any party thereto, nor any director, officer, employee, representative, agent
or other controlling person of each of the parties hereto and their respective
affiliates, shall have any liability or obligation arising under this Agreement
or the transactions contemplated hereby.
(j) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York, without giving effect to
the principles of conflicts of law thereof.
(k) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(l) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Acquiror and the Shareholders have caused
this Agreement to be duly executed as of the day and year first above written.
ALLIED CAPITAL CORPORATION
By: /s/ Joan Sweeney
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Name: Joan Sweeney
Title: Managing Director and Chief
Operating Officer
/s/ Robert Tannenhauser
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Robert Tannenhauser
210 East 68th Street
New York, NY 10022
/s/ Carol Tannenhauser
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Carol Tannenhauser
210 East 68th Street
New York, NY 10022
/s/ Emily Tannenhauser
----------------------------------
Emily Tannenhauser
210 East 68th Street
New York, NY 10022
/s/ David Tannenhauser
----------------------------------
David Tannenhauser
210 East 68th Street
New York, NY 10022
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/s/ Peter Blanck
----------------------------------
Peter Blanck
3652 Forest Gate Drive
Iowa City, Iowa 52240
/s/ Richard H. Blanck, M.D.
----------------------------------
Dr. Richard Blanck
9 Hickory Road
Manhasset Hills, NY 11040
/s/ Jennifer Goldstein
----------------------------------
Jennifer Goldstein
50 West 72nd Street
New York, NY 10023
/s/ Dianne Rosenfeld
----------------------------------
Dianne Rosenfeld
RR #1, Box 427
Amenia, NY 12501
/s/ R. Matthew McGee
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R. Matthew McGee
101 Thomashire Court
Richmond, VA 23229
FUTRONICS CORPORATION
3652 Forest Gate Drive
Iowa City, Iowa 52240
By: /s/ Peter Blanck
------------------------------
Name: Peter Blanck
Title: Director
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