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Exhibit
10.1
VOTING
AGREEMENT
This VOTING AGREEMENT (this
“Agreement”) is made and entered into as of
July 18, 2007, by and between the undersigned stockholder
(“Stockholder”) and OAKMONT ACQUISITION CORP., a
Delaware corporation (“Oakmont”). Capitalized terms
used and not otherwise defined herein shall have the meanings given
to such terms in the Merger Agreement (as defined
herein).
RECITALS
A Stockholder is a
stockholder of BROOKE CREDIT CORPORATION, a Kansas corporation (the
“Company”).
B. Oakmont, the Company and
the -Stockholder have entered into an Agreement and Plan of Merger
dated as of April 30, 2007 (the “Merger
Agreement”), providing for the merger of the Company with and
into Oakmont, with Oakmont being the surviving corporation and
changing its name to Brooke Credit Corporation (the
“Merger”). The surviving corporation is herein referred
to as “New Brooke Credit.”
C. The Merger Agreement
provides that, among other things, upon consummation of the Merger,
holders of shares of the common stock of the Company will receive
shares of common stock of New Brooke Credit (“New Brooke
Credit Common Stock”) in exchange for their shares of common
stock of the Company.
D. It is contemplated that
Stockholder will receive shares of New Brooke Credit Common Stock
in exchange for its shares of common stock of the Company upon the
consummation of the Merger and pursuant to the Earnout Payments, if
any (collectively, the “Merger Shares”).
E. The execution and delivery
of this Agreement is a condition to Oakmont’s obligation to
close the Merger, and it is being executed and delivered
immediately prior to the consummation of the Merger.
F. Stockholder agrees that
the Merger Shares received by Stockholder in connection with the
Merger will be subject to certain voting covenants as more fully
set forth herein.
AGREEMENT
NOW, THEREFORE, as an inducement to and
in consideration of Oakmont’s agreement to enter into the
Merger Agreement and proceed with the Merger, and for other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Stockholder and New Brooke Credit hereby
agrees as follows:
1. Board Composition
.
(a) Election of Board
Members . Stockholder agrees to vote all of its Merger Shares
and other shares of voting securities in New Brooke Credit, whether
now owned or hereafter acquired or which such Stockholder may be
empowered to vote (together the “Shares”), from time to
time and at all times, in whatever manner shall be necessary to
ensure that at each annual or special meeting of stockholders at
which an election of directors is held or pursuant to any written
consent of the stockholders:
(i) The number of directors
which shall constitute the Board of Directors of New Brooke Credit
(the “Board”) shall be fixed at seven (7);
and
(ii) The Board shall consist
of
(1) three
(3) independent directors designated by Stockholder and
approved by Robert J. Skandalaris (or his designee, successor or
assign), such approval not to be unreasonably withheld (provided
that no such approval shall be required with respect to Mick Lowry,
Anita Larson, Barb Davison, Lindsay Olsen and/or Keith
Bouchey),
(2) two (2) directors
designated by Stockholder and approved by Mr. Skandalaris (or
his designee, successor or assign), such approval not to be
unreasonably withheld (provided that no such approval shall be
required with respect to Mick Lowry, Anita Larson, Barb Davison,
Lindsay Olsen and/or Keith Bouchey), one of whom shall be
designated Chairman as selected by Stockholder, and
(3) two (2) directors
designated by Mr. Skandalaris (or his designee, successor or
assign) and approved by Stockholder, such approval not to be
unreasonably withheld (provided that no such approval shall be
required with respect to Mr. Skandalaris and/or Mr. Azar)
(the “Oakmont Representatives”).
(b) Removal of Board
Members . Stockholder also agrees to vote, or cause to be
voted, all Shares from time to time and at all times, in whatever
manner as shall be necessary to ensure that:
(i) the Oakmont
Representatives elected pursuant to Section 1.1 of this
Agreement may not be removed from office unless such removal is
directed or approved by Mr. Skandalaris (or his designee,
successor or assign); and
(ii) any vacancies created by
the resignation, removal or death of an Oakmont Representative
elected pursuant to Section 1.1 of this Agreement shall be
filled pursuant to the provisions of this
Section 1.
Notwithstanding the foregoing
provision of this Section 1, the parties agree an Oakmont
Representative may be removed from the Board (x) for breach of
fiduciary duty (including material breach of the confidentiality of
Board deliberations), provided that (i) all of the Board
members, other than such Oakmont Representative, agree by written
resolution that the actions, in the opinion of such other members,
were intentional and are likely to have a material adverse effect
on New Brooke Credit, and (ii) an independent law firm
delivers a legal opinion that such actions by the Oakmont
Representative constituted a breach of fiduciary duty, or
(y) for Cause. For purposes of this Agreement,
“Cause” shall mean an Oakmont Representative’s
commission of a felony or any other crime involving moral turpitude
or fraud against New Brooke Credit or any of its subsidiaries, or
any act or omission by an Oakmont Representative that is the result
of willful misconduct or bad faith and that is, or may reasonably
be expected to be, materially injurious to New Brooke Credit or any
of its subsidiaries.
(c) No Liability for
Election of Recommended Directors . No party, nor any affiliate
of any such party, shall have any liability as a result of
designating a person for election as a director for any act or
omission by such designated person in his or her capacity as a
director of New Brooke Credit, nor shall any party have any
liability as a result of voting for any such designee in accordance
with the provisions of this Agreement.
2. Covenants of New Brooke
Credit . New Brooke Credit agrees to use its best efforts to
ensure that the rights granted under this Agreement are effective
and that the Oakmont Representatives enjoy the benefits of this
Agreement. Such actions include, without limitation, the use of New
Brooke
Credit’s best efforts to cause the
nomination and election of the Oakmont Representatives as provided
above at each annual or special meeting of stockholders at which an
election of directors is held or pursuant to any written consent of
the stockholders. New Brooke Credit will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms to be performed hereunder by New Brooke Credit, but
will at all times in good faith assist in the carrying out of all
of the provisions of this Agreement and in the taking of all such
actions as
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