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EXHIBIT 10
VOTING AND STANDSTILL AGREEMENT, dated as of April 26, 2001 (this
"AGREEMENT"), by and among Mayor's Jewelers, Inc., a Delaware corporation (the
"COMPANY"), Xxxxxx Xxx-Xxxxxx, a person residing at 000 X. Xxxxx Xxxx 0, Xxxxx
000, Xxxxxxxxx, Xxxxxxx 00000 ("XXX-XXXXXX"), and Xxxxxxx Xxxxxxxxx, a person
residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxx 00000 ("XXXXXXXXX",
collectively with Xxx-Xxxxxx, the "STOCKHOLDERS", and each individually, a
"STOCKHOLDER").
WHEREAS, the Company and each Stockholder have agreed to enter into
this Agreement to provide for the orderly governance of the Company.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual agreements contained herein, the parties hereby
agree as follows:
Section 1. DIRECTOR NOMINEE. If the Company has not entered into a definitive
agreement to merge with, or sell substantially all of its assets to, another
person or entity within six (6) months from the date of this Agreement,
Xxx-Xxxxxx shall be entitled to designate one director to the class of directors
that serve until the Annual Meeting of stockholders of the Company to be held in
2002 (the "2002 ANNUAL MEETING") and, with respect to the 2002 Annual Meeting,
the Company shall take all necessary or appropriate action to assist in the
nomination and election as director the individual designated by Xxx-Xxxxxx to
be elected as a director of the class of directors of the Company to be elected
at the 2002 Annual Meeting; PROVIDED, THAT in each case such designee (i) will
qualify as an "independent" director, (ii) is not an affiliate of Xxx-Xxxxxx and
(iii) is otherwise reasonably acceptable to the Company at the time of his or
her designation. Notwithstanding the foregoing, in the event that at any time
Xxx-Xxxxxx shall no longer beneficially own at least 5% of the voting securities
of the Company, Xxx-Xxxxxx shall not have the right to designate a director of
the Company, Ben-Shmuel's rights and duties under Sections 1 and 2 shall
terminate, at the Company's request Xxx-Xxxxxx shall cause his designee to
resign forthwith such that no designee of Xxx-Xxxxxx remains on the Board of
Directors of the Company and all of the covenants under Sections 1 and 2 of this
Agreement shall lapse and no longer be of any force or effect. For purposes of
this Agreement, "affiliate" shall be defined as such term is defined under Rule
405 of the Securities Act of 1933, as amended. So long as Xxx-Xxxxxx is entitled
to designate one director in accordance with the provisions of Section 1 hereof
or until the 2002 Annual Meeting, except to the extent otherwise provided
herein, the Company shall take all necessary or appropriate action to assist in
the nomination and election as director the individual specified in this Section
1 designated by Xxx-Xxxxxx to be elected as a director of the Company and
further agrees not to oppose such designee's nomination and election at the 2002
Annual Meeting.
Section 2. VOTING.
(a) The Stockholders shall vote all voting securities of the
Company owned of record by the Stockholders and shall cause all voting
securities of the Company owned beneficially by the Stockholders to be
voted with respect to the election or removal of directors of the
Company, either (i) in accordance with the recommendations of a
majority of the Board of Directors, or, upon prior notification to the
Company, (ii) in the same proportions (including abstentions) as the
holders of record of voting securities of the Company other than those
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beneficially owned by the Stockholders that are entitled to vote on the
election of directors (or such other matter) vote their voting
securities of the Company; PROVIDED, HOWEVER, that Xxx-Xxxxxx may at
all times vote his voting securities of the Company for the election or
retention of the one director designated by Xxx-Xxxxxx in accordance
with Section 1 and reasonably acceptable to the Company, and any other
matters not relating to the election or removal or directors of the
Company as set forth in Section 2.
(b) EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, THE
COMPANY AND ANY DESIGNEE OF THE COMPANY, EACH OF THEM INDIVIDUALLY,
EACH STOCKHOLDER'S IRREVOCABLE (UNTIL THE TERMINATION DATE) PROXY AND
ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE VOTING
SECURITIES OF THE COMPANY AS SET FORTH IN SECTION 2(a) ABOVE. EACH
STOCKHOLDER INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION
DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION
AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE
THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY EACH SUCH STOCKHOLDER WITH RESPECT TO SUCH SHARES.
Section 3. STANDSTILL. Each Stockholder, respectively, agrees that for
a period of 18 months following the date of this Agreement (the "EFFECTIVE
PERIOD"), each will not, and each will ensure that his respective affiliates and
any person acting on behalf of or in concert with him or any of his respective
affiliates shall not, without the prior written consent of the Company:
(a) make, or in any way participate, directly or indirectly,
in, any "solicitation" for "proxies" to vote (as such terms are used in
the rules of the Securities and Exchange Commission) any voting
securities of the Company;
(b) initiate or propose any stockholder proposals for
submission to a vote of stockholders, whether by action at a
stockholder meeting or by written consent, with respect to the Company
or any of its affiliates, or, except as provided in this Agreement,
propose any person for election to the Board of Directors of the
Company;
(c) disclose to any third party, or make any filing under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
including, without limitation, under Section 13(d) thereof, disclosing,
any intention, plan or arrangement inconsistent with the foregoing; or
(d) form, join or in any way participate in a "group" as
defined in Section 13(d)(3) of the Exchange Act in connection with any
of the foregoing.
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Each Stockholder shall promptly advise the Company of any inquiry or proposal
made to it with respect to any of the foregoing.
Section 4. STOCKHOLDER PROPOSALS.
(a) XXX-XXXXXX PROPOSALS. Xxx-Xxxxxx hereby irrevocably
withdraws all proposals that he or any of his affiliates has submitted
to the Company for inclusion on the agenda at the Annual Meeting of
stockholders of the Company to be held in 2001 (the "2001 ANNUAL
MEETING").
(b) XXXXXXXXX PROPOSALS. Xxxxxxxxx hereby (1) irrevocably
withdraws all proposals that he or any of his affiliates has submitted
to the Company for inclusion on the agenda at the 2001 Annual Meeting,
(2) irrevocably withdraws the nominees, including himself, that he
proposed to be nominated at the 2001 Annual Meeting for election as
directors, (3) irrevocably withdraws his preliminary proxy statement
from review at the Securities and Exchange Commission and (4)
irrevocably withdraws his request made pursuant to Rule 14a-7 under the
Exchange Act.
Section 5. QUORUMS. From the date hereof and until the Termination Date
(as defined in Section 8), each Stockholder that is a holder of record of voting
securities of the Company shall be present, and each Stockholder that is a
beneficial owner of voting securities of the Company shall cause the holder of
record to be present, in person or by proxy, at all meetings of stockholders of
the Company so that all voting securities of the Company owned of record or
beneficially by each Stockholder may be counted for the purpose of determining
the presence of a quorum at such meetings.
Section 6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 7. CERTAIN EVENTS. Nothing in this Agreement shall in any
manner restrict Ben-Shmuel's, Xxxxxxxxx'x or any of their respective affiliates'
ability to freely transfer or sell at any time their respective legally or
beneficially owned securities of the Company to an unaffiliated third party.
Section 8. TERMINATION. The obligations of each of the Stockholders and
the Company shall terminate upon the first to occur of (a) the end of the
Effective Period, (b) the date that the Company enters into (i) a merger
agreement with another person or entity, (ii) a sale of the Company or (iii) a
sale of all or substantially all of the Company's assets, (c) the date that
Xxx-Xxxxxx shall not legally or beneficially own at least 5% of voting
securities of the Company and have no designee on the Board of Directors of the
Company, (d) the date seven months from the date hereof and Xxx-Xxxxxx does not
have a designee appointed to the Board of Directors of the Company, (e) the date
that is 30 days from the date of the resignation, death or removal of
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Ben-Shmuel's designee to the Board of Directors of the Company and no
replacement has been appointed or elected to the Company's Board of Directors in
accordance with Section 1 or (f) the day following the 2002 Annual Meeting and
Ben-Shmuel's designee to the Board of Directors of the Company is not elected to
the Board of Directors of the Company at the 2002 Annual Meeting (the
"TERMINATION DATE").
Section 9. MISCELLANEOUS.
(a) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by overnight courier service, by cable, by facsimile, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 9(a)):
If to the Company:
00000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Xxx-Xxxxxx:
Xx. Xxxxxx Xxx-Xxxxxx
000 X. Xxxxx Xxxx 0
Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to Xxxxxxxxx:
Xx. Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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(b) WAIVER. At any time prior to the Termination Date, any party hereto
may, with respect to any other party hereto, (i) extend the time for the
performance of any of the obligations or other acts or (ii) waive compliance
with any of the agreements or conditions contained herein PROVIDED, THAT any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed by Xxx-Xxxxxx and the Company. No failure or delay on the part of
any party hereto in the exercise of any right hereunder shall impair such right
or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
(c) SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and supersede
all prior agreements and undertakings, both written and oral with respect to the
subject matter hereof and thereof and except as otherwise expressly provided
herein.
(e) ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise.
(f) EXPENSES. Each party agrees to bear its own expenses in connection
with the transactions contemplated hereby.
(g) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without regard to
principles of conflicts of laws. EACH OF THE PARTIES HERETO AGREES THAT ANY
LEGAL ACTION BETWEEN THE PARTIES RELATING TO THE ENTRY INTO OR PERFORMANCE OF
THIS AGREEMENT OR THE INTERPRETATION OR ENFORCEMENT OF THE TERMS HEREOF SHALL
EXCLUSIVELY BE BROUGHT IN A FEDERAL OR STATE COURT LOCATED IN DADE COUNTY,
FLORIDA, HAVING JURISDICTION OF THE SUBJECT MATTER THEREOF, AND EACH PARTY
IRREVOCABLY CONSENTS TO PERSONAL JURISDICTION IN ANY SUCH FEDERAL OR STATE
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COURT, WAIVES ANY RIGHT TO OBJECT TO SUCH VENUE OR TO ASSERT THE DEFENSE OF
FORUM NON-CONVENIENS, AND AGREES THAT SERVICE OF COMPLAINT OR OTHER PROCESS MAY
BE MADE BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS
SET FORTH IN, OR DETERMINED IN ACCORDANCE WITH, SECTION 9(a) HEREOF.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MAYOR'S JEWELERS, INC.
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
STOCKHOLDER
XXXXXX XXX-XXXXXX
By: /s/ XXXXXX XXX-XXXXXX
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STOCKHOLDER
XXXXXXX XXXXXXXXX
By: /s/ XXXXXXX XXXXXXXXX
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