AMENDED AND RESTATED VOTING AGREEMENT, IRREVOCABLE PROXY AND FORM OF STOCKHOLDERS’ WRITTEN CONSENT
Exhibit
10.4
AMENDED
AND RESTATED VOTING AGREEMENT, IRREVOCABLE PROXY
AND
FORM OF STOCKHOLDERS’ WRITTEN CONSENT
This
Amended and Restated Voting Agreement, Irrevocable Proxy and Form of
Stockholders’ Written Consent,
dated
as of August 31, 2006 (this “Agreement”),
is by
and among Solidus
Networks, Inc.,
a
Delaware corporation (“Solidus”),
WinWin
Gaming, Inc.,
a
Delaware corporation (“WinWin”),
and
the Stockholder listed on the signature page hereto (the “Stockholder”).
Capitalized terms used herein, except as otherwise defined herein, shall
have
the meanings assigned to them in the Joint Venture Agreement (defined
below).
Recitals
A. As
of the
date hereof, the Stockholder owns of record the number of shares of common
stock
(“Common
Stock”)
of
WinWin set forth opposite the Stockholder’s name on Annex I hereto (such Common
Stock, together with any and all shares of WinWin capital stock acquired
by the
Stockholder during the term of this Agreement, being referred to herein as
the
“Shares”);
B. Solidus
and WinWin have entered into an Amended and Restated Joint Venture Agreement,
dated April 14, 2006 (the “Prior
Joint Venture Agreement”),
that
provides, among other things, for the adoption and filing of an amendment
and
restatement of WinWin’s certificate of incorporation, as amended (the
“Prior
Restated Charter”);
C. In
connection with the execution and delivery of the Prior Joint Venture Agreement,
each Stockholder, Solidus and WinWin have entered into a Voting Agreement,
dated
as of April 14, 2006 (the “Original
Voting Agreement”),
pursuant to which, among other things, the parties made certain agreements
with
respect to the adoption of the Prior Restated Charter;
D. Concurrently
herewith, Solidus and WinWin are entering into a Second Amended and Restated
Joint Venture Agreement, dated as of the date hereof (the “Joint
Venture Agreement”),
that
provides, among other things, for the adoption and filing of an amendment
and
restatement of WinWin’s certificate of incorporation, as amended, in
substantially the form attached as Annex III hereto, that differs from the
Prior
Restated Charter in significant respects (the “Restated
Charter”);
E. As
a
condition to the willingness of Solidus to enter into the Joint Venture
Agreement, WinWin has requested that the Stockholder enter into this Agreement,
and, in order to induce Solidus to enter into the Joint Venture Agreement,
the
Stockholder has agreed to enter into this Agreement, amending and restating
the
Original Voting Agreement.
Now,
Therefore,
in
consideration of the premises and of the mutual agreements and covenants
set
forth herein, and intending to be legally bound hereby, the parties hereto
agree
as follows:
Agreement
1. Transfer
and Voting of Shares
(a) Transfer
of Shares.
The
Stockholder shall not, directly or indirectly, (i) sell, convey, transfer,
pledge or otherwise encumber or dispose of any or all of the Stockholder’s
Shares or any interest therein, (ii) deposit any Shares into a voting trust
or
enter into a voting agreement or arrangement with respect to any Shares or
grant
any proxy with respect thereto (other than as contemplated hereunder) or
(iii)
enter into any contract, option or other arrangement or undertaking (other
than
as contemplated hereunder) with respect to the direct or indirect acquisition
or
sale, assignment, transfer or other disposition of any Shares.
(b) Vote
in Favor of Restated Charter.
The
Stockholder, solely in Stockholder’s capacity as a stockholder of WinWin, agrees
to vote (or cause to be voted) all Shares at any meeting of the Stockholders
of
WinWin or any adjournment thereof, and in any action proposed to be taken
by
written consent of the Stockholders of WinWin, (i) in favor of the adoption
of
the Restated Charter in the form attached hereto, (ii) against any merger,
consolidation, sale of assets, recapitalization or other business combination
involving WinWin (other than as contemplated in the Joint Venture Agreement
or
Restated Charter) or any other action or agreement that could reasonably
be
expected to result in a material breach of any covenant, representation or
warranty or any other obligation or agreement of WinWin under the Joint Venture
Agreement or that could reasonably be expected to result in any of the
conditions to Solidus’ obligations under the Joint Venture Agreement not being
fulfilled, (iii) against any revocation of the consent attached hereto as
Annex
II and (iv) in favor of any other matter intended to facilitate the consummation
of the transactions contemplated by the Joint Venture Agreement.
(c) Grant
of Proxy; Execution of Consent; Further Assurances.
(i) The
Stockholder, by this Agreement, with respect to the Shares, does hereby
irrevocably constitute and appoint Solidus, or any nominee of Solidus, with
full
power of substitution, as the Stockholder’s true and lawful attorney and proxy,
for and in the Stockholder’s name, place and stead, to vote, at any time prior
to the Expiration Date (as defined below), the Shares as the Stockholder’s
proxy, both at every annual, special or adjourned meeting of the stockholders
of
WinWin and including the right to sign the Stockholder’s name (as Stockholder)
to any written consent, certificate or other document relating to the Shares
that may be permitted or required by applicable law (A) in favor of the
adoption of the Restated Charter in the form attached hereto, (B) against
any merger, consolidation, sale of assets, recapitalization or other business
combination involving WinWin (other than as contemplated in the Joint Venture
Agreement or Restated Charter) or any other action or agreement that could
reasonably be expected to result in a material breach of any covenant,
representation or warranty or any other obligation or agreement of WinWin
under
the Joint Venture Agreement or that could reasonably be expected to result
in
any of the conditions to Solidus’ obligations under the Joint Venture Agreement
not being fulfilled, (C) against any revocation of the consent attached
hereto as Annex II and (D) in favor of any other matter intended to
facilitate the consummation of the transactions contemplated by the Joint
Venture Agreement. This proxy is coupled with an interest and is irrevocable.
As
used herein, the term “Expiration
Date”
shall
mean the earlier to occur of (I) such date as the Joint Venture Agreement
shall have been validly terminated in accordance with Section 13 thereof
or
(II) such date and time as the Second Closing (as defined in the Joint
Venture Agreement) shall have occurred.
2
(ii) As
contemplated by this Agreement and the Joint Venture Agreement, the Stockholder
has irrevocably executed the written consent attached hereto as Annex II,
pursuant to which the Stockholder has approved the adoption and filing of
the
Restated Charter.
(iii) The
Stockholder shall perform such further acts and execute such further documents
and instruments as may reasonably be required to vest in Solidus the power
to
carry out the provisions of this Agreement.
(d) Termination.
This
Agreement and the proxy granted hereunder shall terminate and cease to be
effective upon the Expiration Date. This proxy revokes all prior proxies
granted
by the Stockholder and is irrevocable, until such time as this Agreement
terminates pursuant to this Section 1(d).
2. Representation
and Warranties; Covenants of the Stockholder. The
Stockholder hereby represents and warrants and covenants to Solidus as
follows:
(a) Organization;
Authorization.
The
Stockholder has all requisite capacity and authority to execute and deliver
this
Agreement, to perform his, her or its obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement, including the consent
attached hereto as Annex II, has been duly executed and delivered by or on
behalf of the Stockholder and, assuming the due authorization, execution
and
delivery of this Agreement by Solidus, constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights and to general equity principles.
(b) No
Conflict; Required Filings and Consents.
(i) The
execution and delivery of this Agreement by the Stockholder does not, and
the
performance of this Agreement by the Stockholder and the consummation of
the
transactions contemplated hereby will not, (A) conflict with or violate any
law,
rule, regulation, order, judgment or decree applicable to the Stockholder
or by
which the Stockholder or any of the Stockholder’s assets or properties is bound
or affected or (B) result in any breach of or constitute a default (or an
event
that with notice or lapse of time or both would become a default) under,
or give
to another party any right of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien or encumbrance on
any of
the property or assets of the Stockholder, including, without limitation,
the
Shares, pursuant to any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
the
Stockholder is a party or by which the Stockholder or any of the Stockholder’s
assets or properties is bound or affected. There is no beneficiary or holder
of
a voting trust certificate or other interest of any trust of which the
Stockholder is a trustee or any party to a voting agreement whose consent
is
required for the execution and delivery of this Agreement or the consummation
by
the Stockholder of the transactions contemplated by this Agreement.
3
(ii) The
execution and delivery of this Agreement by the Stockholder does not, and
the
performance of the Agreement by the Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to,
any
governmental or regulatory authority, domestic or foreign, except where the
failure to obtain such consents, approvals authorizations or permits, or
to make
such filings or notifications, could not prevent, delay or impair the
Stockholder’s ability to consummate the transactions contemplated by this
Agreement. The Stockholder does not have any understanding in effect with
respect to the voting or transfer of any Shares. The Stockholder is not required
to make any filing with or notify any governmental or regulatory authority in
connection with this Agreement, the Joint Venture Agreement or the transactions
contemplated hereby or thereby.
(c) Litigation.
There is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the knowledge of the Stockholder or any of the Stockholder’s affiliates,
threatened against the Stockholder or any of the Stockholder’s affiliates or any
of their respective properties or any of their respective officers or directors,
in the case of a corporate entity (in their capacities as such) that,
individually or in the aggregate, would reasonably be expected to prevent,
delay
or impair the Stockholder’s ability to consummate the transactions contemplated
by this Agreement. There is no judgment, decree or order against the Stockholder
or any of the Stockholder’s affiliates, or, to the knowledge of the Stockholder,
any of their respective directors or officers, in the case of a corporate
entity
(in their capacities as such), or any of their respective partners (in the
case
of a partnership), that could reasonably be expected to prevent, enjoin,
alter
or delay any of the transactions contemplated by this Agreement, or that
could
reasonably be expected to have a material adverse affect on the Stockholder’s
ability to consummate the transactions contemplated by this
Agreement.
(d) Title
to Shares.
Annex I
hereto correctly sets forth, as of the date of this Agreement, the number
of
Shares owned beneficially and of record by the Stockholder, divided between
those Shares owned both of record and beneficially and those Shares for which
the Stockholder solely has voting power or the power to direct the voting
thereof. The Shares constitute the Stockholder’s entire interest in the
outstanding capital stock of WinWin. The Stockholder has good title to all
of
the Shares indicated as owned by the Stockholder in the capacity set forth
on
Annex I as of the date hereof, and all such Shares are so owned free and
clear
of any liens, security interests, charges or other encumbrances or restrictions
of any kind, except for the cap on sales, loans, disposition, pledges or
transfers referenced in Section 4(g) of that certain Securities Purchase
Agreement, dated as of February 25, 2005, among WinWin and the other parties
thereto, in the form as filed with the Securities and Exchange Commission
as
Exhibit 10.1 to WinWin's Current Report on Form 8-K dated February 25, 2005
and
as in effect as of the date of this Agreement.
(e) Public
Announcements.
The
Stockholder shall not issue any press release or otherwise make any public
statement with respect to this Agreement, the Joint Venture Agreement or
the
Restated Charter without the prior written consent of Solidus.
4
3. General
Provisions
(a) Company
Stop Transfer Agreement.
WinWin
hereby acknowledges the restrictions on transfer of Shares contained in Section
1(a) hereof. WinWin agrees not to register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
Shares, unless such transfer is made pursuant to and in compliance with this
Agreement. WinWin further agrees to instruct its transfer agent, if any,
not to
transfer any certificate or uncertificated interest representing any Shares
until (i) the transfer agent has received Solidus’ consent to such a transfer or
(ii) this Agreement has been terminated pursuant to Section 1(d) hereof.
(b) Further
Instruments and Actions.
The
Stockholder and WinWin agree to execute such further instruments and to take
such further action as may reasonably be necessary or desirable to carry
out the
intent of this Agreement. The Stockholder and WinWin agree to cooperate
affirmatively with Solidus, to the extent reasonably requested by Solidus,
to
enforce the rights and obligations of the parties under this
Agreement.
(c) Notices.
Any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and delivered personally or sent
by
express mail or equivalent over-night courier service, prepaid, or by
facsimile:
if
to
WinWin:
WinWin
Gaming, Inc.
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Fax:
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Attention:
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with
a
copy to:
▇▇▇▇▇▇
▇▇▇▇ & Priest LLP
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Fax:
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Attention:
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if
to
Solidus:
Solidus
Networks, Inc.
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Tel:
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Fax:
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Attention:
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with
a
copy to:
Cooley
Godward llp
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Tel:
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Fax:
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Attention:
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if
to a
Stockholder:
To
the
address of Stockholder on file with WinWin
5
or
at
such other address or facsimile number as a Party may designate by giving
at
least ten days’ advance written notice to the other Party. All such notices and
other communications shall be deemed given upon (I) receipt or refusal of
receipt, if delivered personally, (II) three days after being placed in the
mail, if mailed, or (III) confirmation of facsimile transfer, if
faxed.
(d) Headings.
The
underlined headings contained in the Agreement are for convenience of reference
only, shall not be deemed to be a part of the Agreement and shall not be
referred to in connection with the construction or interpretation of the
Agreement.
(e) Confidentiality.
The
parties agree that the terms and conditions of this Agreement shall remain
confidential and shall not be disclosed to any third parties, except as may
be
required to enforce the parties’ rights and obligations hereunder.
(f) Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity
or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or any circumstance,
is
invalid or unenforceable, (i) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (ii) the remainder of this Agreement and the application of such provision
to other Persons or circumstances shall not be affected by such invalidity
or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof,
in any
other jurisdiction. Subject to the preceding sentence, this Agreement shall
be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
(g) Entire
Agreement.
This
Agreement constitutes the entire agreement, and supersedes all other prior
agreements, understandings, representations and warranties, both written
and
oral, among the parties with respect to the subject matter hereof. From and
after the date hereof, the Original Voting Agreement shall be amended and
restated in its entirety hereby.
(h) Amendments.
Subject
to the provisions of applicable law, at any time prior to the Effective Time,
the parties hereto may modify or amend this Agreement, by a written agreement
specifically referring to this Agreement executed and delivered by the
Stockholder and Solidus.
6
(i) Assignment.
This
Agreement shall not be assignable by operation of law or otherwise; provided,
however,
that
Solidus may assign this Agreement to any direct or indirect wholly owned
subsidiary of Solidus, provided that no such assignment shall relieve Solidus
of
its obligations hereunder.
(j) Fees
and Expenses.
Except
as otherwise provided herein or in the Joint Venture Agreement, all costs
and
expenses (including, without limitation, all fees and disbursements of counsel,
accountants, investment bankers, experts and consultants to a party) incurred
in
connection with this Agreement and the transactions contemplated hereby shall
be
paid by the party incurring such costs and expenses.
(k) Remedies
Cumulative; Specific Performance.
The
rights and remedies of the parties hereto shall be cumulative (and not
alternative). The parties to the Agreement agree that, in the event of any
breach or threatened breach by any party to the Agreement of any covenant,
obligation or other provision set forth in the Agreement for the benefit
of any
other party to the Agreement, such other party shall be entitled (in addition
to
any other remedy that may be available to it) to (i) a decree or order of
specific performance or mandamus to enforce the observance and performance
of
such covenant, obligation or other provision and (ii) an injunction restraining
such breach or threatened breach.
(l) Applicable
Law; Jurisdiction.
The
Agreement shall be construed in accordance with, and governed in all respects
by, the internal laws of the State of Delaware (without giving effect to
principles of conflicts of laws). In any action between the parties arising
out
of or relating to this Agreement or any of the transactions contemplated
by this
Agreement, (i) each of the parties irrevocably and unconditionally consents
and
submits to the exclusive jurisdiction and venue of the state and federal
courts
located in the State of California and (ii) each of the parties irrevocably
consents to service of process by first class certified mail, return receipt
requested, postage prepaid, to the address at which such party is to receive
notice in accordance with Section 3(c).
(m) No
Third Party Beneficiaries.
None of
the provisions of the Agreement is intended to provide any rights or remedies
to
any Person other than the parties hereto and their respective successors
and
assigns (if any).
(n) No
Waiver.
(i) No
failure on the part of any Person to exercise any power, right, privilege
or
remedy under the Agreement, and no delay on the part of any Person in exercising
any power, right, privilege or remedy under the Agreement, shall operate
as a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any
other
or further exercise thereof or of any other power, right, privilege or
remedy.
(ii) No
Person
shall be deemed to have waived any claim arising out of the Agreement, or
any
power, right, privilege or remedy under the Agreement, unless the waiver
of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of such Person; and any
such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7
(o) Counterparts.
The
Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
[Signature
page follows]
8
Each
of
Solidus, WinWin and Stockholder has executed or has caused this Agreement
to be
executed by their respective officers thereunto duly authorized as of the
date
first written above.
Solidus
Networks, Inc.
By:
________________________
Name:
Title:
WinWin
Gaming, Inc.
By:
________________________
Name:
Title:
________________________
Stockholder
________________________
Signature
of Stockholder
________________________
Printed
Name of Stockholder
________________________
Name
of
Person Signing for the Stockholder (If signing in a representative capacity
for
a corporation, trust, partnership and other entity)
_________________________
Title
of
Person Signing for the Stockholder (If signing in a representative capacity
for
a corporation, trust, partnership and other entity)
[Signature
page to Amended and Restated Voting Agreement, Irrevocable
Proxy
and
Form of Stockholders’ Written Consent]
ANNEX
I
Total
number of shares owned of record by _____________________ [insert name of
Stockholder] as of the date of this Agreement, all of which are shares of
common
stock: _____________.
ANNEX
II
WRITTEN
CONSENT IN LIEU OF SPECIAL
MEETING
OF THE STOCKHOLDERS OF
WINWIN
GAMING, INC.
The
undersigned, being the record holder of the shares of capital stock of WinWin
Gaming, Inc., a Delaware corporation (the “Company”),
set
below the undersigned’s signature, acting by written consent in lieu of a
meeting pursuant to the provisions of Section 228 of the General Corporation
Law
of the State of Delaware and the bylaws of the Company, hereby waives all
notice
of time, place and purpose of meeting and adopts and consents to the adoption
of
the following actions with the same effect as if taken by a vote of the
stockholders of the Company at a duly called meeting of the
stockholders:
Adoption
of Restated Charter
Whereas,
the
Board of Directors of the Company has approved and adopted an amendment and
restatement of the Company’s currently effective Certificate of Incorporation,
as amended to date (the “Current
Certificate”),
in
order (i) to designate a series of preferred stock as "Series A Preferred
Stock," (ii) to authorize an aggregate of 60,000,000 shares of Series A
Preferred Stock, (iii) to set forth the rights, preferences and privileges
of
the Series A Preferred Stock, (iv) to increase the number of authorized shares
of Company common stock to 750,000,000 and (v) to make certain additional
modifications;
Now,
Therefore, Be It Resolved,
that the
Current Certificate be, and it hereby is, amended and restated to read in
the
form attached hereto as Exhibit A (the “Restated
Certificate”)
and
the Restated Certificate be and hereby is approved; and
Resolved
Further,
that the
approved officers of the Company be, and they hereby are, authorized and
directed to take or cause to be taken, any such actions, to execute such
agreements, documents and instruments and to make such filings as may be
necessary or appropriate to file the Restated Certificate with the Secretary
of
State of the State of Delaware and to carry out the intent and accomplish
the
purpose of the foregoing resolution, and all such actions heretofore taken
by
the officers in connection therewith are hereby ratified and
approved.
[Signature
page follows]
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
____________, 2006
_________________________
Signature
of Stockholder
_________________________
Printed
Name of Stockholder
__________________________
Name
of
Person Signing for the Stockholder (If signing in a representative capacity
for
a corporation, trust, partnership and other entity)
__________________________
Title
of
Person Signing for the Stockholder (If signing in a representative capacity
for
a corporation, trust, partnership and other entity)
Total
number of shares owned of record as of the above date:
Common
Stock ____________________
ANNEX
III
FORM
OF RESTATED CHARTER
(See
Attached)
Schedule
of Signatories
|
Stockholder
|
Shares
|
|
China
▇▇▇ Trust
|
500,000
|
|
▇▇▇▇▇▇
Living Trust
|
8,500,000
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
4,709,678
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
69,000
|
|
▇▇▇▇
Family Trust, dated 9/10/91
|
1,942,647
|
|
Calico
Capital Management, LLC
|
500,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
150,000
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
150,000
|
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
200,000
|
|
▇▇▇
▇▇▇▇▇▇▇ Crossover Fund LP
|
2,000,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
7,750
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Revocable Trust
|
3,931,175
|
|
Players
Club Partners, LLC
|
156,000
|
|
▇▇▇▇▇▇
▇. Call
|
72,000
|
|
Galt
Funding, LLC
|
2,430,773
|
|
IPO
Pang P.C.
|
2,279,357
|