EXHIBIT 10.13
VOTING AGREEMENT
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VOTING AGREEMENT, dated as of January __, 2001 (this "Agreement"),
between Xxxxx.xxx, Inc. a Delaware corporation ("Guild"), and [name of
stockholder] ("Stockholder").
W I T N E S S E T H :
WHEREAS, Xxxxxxx.xxx, Inc. a Delaware corporation ("Ashford"),
Ashford-Guild Art Corporation, a Delaware corporation and a wholly owned
subsidiary of Ashford ("Merger Sub") and Guild propose to enter into an
Agreement and Plan of Reorganization dated as of even date herewith (as the same
may be amended from time to time, the "Merger Agreement"; capitalized terms used
but not defined in this Agreement shall have the meanings ascribed to them in
the Merger Agreement), which provides, upon the terms and subject to the
conditions thereof, for the merger (the "Merger") of Merger Sub with and into
Xxxxx.xxx;
WHEREAS, as of the date hereof, Stockholder owns beneficially or of
record or has the power to vote, or direct the vote of, the number of shares of
common stock, $0.001 par value per share of Ashford (the "Ashford Common Stock")
as set forth opposite such Stockholder's name on Exhibit A hereto. All such
Ashford Common Stock and any shares of Ashford Common Stock of which ownership
of record or beneficially or the power to vote is hereafter acquired by the
Stockholder prior to the termination of this Agreement being referred to herein
as (the "Shares"); and
WHEREAS, as a condition to the willingness of Guild to enter into the
Merger Agreement, Guild has requested that Stockholder agree to enter into this
Agreement, and, in order to induce Guild to enter into the Merger Agreement,
Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement and for
other good and valuable consideration the receipt and adequacy of which are
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
-----------------------------
SECTION 1.01 Transfer of Shares. Until the Effective Time, Stockholder shall
not, directly or indirectly, (a) sell, pledge, encumber, transfer or otherwise
dispose of any or all of Stockholder's Shares or any interest in such Shares,
(b) deposit any Shares or any interest in such 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 (c)
enter into any contract, commitment, option or other arrangement or undertaking
(other than the Merger Agreement) with respect to the direct or indirect
acquisition or sale, assignment, pledge, encumbrance, transfer or other
disposition of any Shares.
SECTION 1.02 Vote in Favor of Merger. During the period commencing on the
date hereof and terminating at the Effective Time, Stockholder, solely in
Stockholder's capacity as a Stockholder of Ashford, agrees to vote (or cause to
be voted) all of the Shares at any meeting of the stockholders of Ashford or any
adjournment thereof, and in any action by written consent of the stockholders of
Ashford, (i) in favor of the adoption of the Merger Agreement and approval of
the Merger, and in favor of the other transactions contemplated by the Merger
Agreement, (ii) against any merger, consolidation, sale of assets,
recapitalization or other business combination involving Ashford (other than the
Merger) or any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Ashford under the Merger Agreement or which would result in any of the
conditions to the Ashford's obligations under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Merger Agreement.
SECTION 1.03 Grant of Irrevocable Proxy. Concurrently with the execution of
this Agreement, Stockholder agrees to deliver to Guild a proxy with respect to
the Stockholder's Shares in the form attached hereto as Exhibit B (the "Proxy"),
which shall be irrevocable to the fullest extent permissible by law.
SECTION 1.04 Termination. The obligations of Stockholder pursuant to this
Article I shall terminate upon the earlier of (i) the Effective Time and (ii)
the date of the termination of the Merger Agreement pursuant to Section 7.1
thereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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OF STOCKHOLDER
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Stockholder hereby represents and warrants to Guild as follows:
SECTION 2.01 Authorization; Binding Agreement. Stockholder has all legal
right, power, authority and capacity to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by or on behalf of Stockholder and
constitutes a legal, valid and binding obligation of Stockholder, enforceable
against Stockholder in accordance with its terms, subject to (i) the effect of
any applicable bankruptcy, insolvency, moratorium or similar law affecting
creditors' rights generally and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
SECTION 2.02 No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement and the grant of the irrevocable proxy to Guild
by the Stockholder does not, and the performance of this Agreement and the grant
of the irrevocable proxy to Guild by
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Stockholder will not, (i) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Stockholder or by which Stockholder or
any of Stockholder's properties is bound or affected, (ii) violate or conflict
with Ashford's Amended and Restated Certificate of Incorporation, Bylaws or
other equivalent organizational documents of the Stockholder (if any), or (iii)
result in or constitute (with or without notice or lapse of time or both) any
breach of or 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 or restriction on any of the property or assets of
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Stockholder is a party or by which Stockholder or any of the
Stockholder's properties is bound or affected. There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by Stockholder of the
transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement and the grant of the
irrevocable proxy to Guild by Stockholder does not, and the performance of this
Agreement and the grant of the irrevocable proxy to Guild by Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any third party or any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and (ii) where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not prevent or materially delay the
performance by Stockholder of Stockholder's obligations under this Agreement.
Stockholder does not have any understanding in effect with respect to the voting
or transfer of any Shares, other than the Agreement.
SECTION 2.03 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 Stockholder or any of
Stockholder's affiliates, threatened against Stockholder or any of 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
materially delay or impair Stockholder's ability to consummate the transactions
contemplated by this Agreement. There is no judgment, decree or order against
Stockholder or any of Stockholder's affiliates, or, to the knowledge of
Stockholder of any of Stockholder's affiliates, 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 prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement, or that could reasonably be expected to have a
material adverse effect on Stockholder's ability to consummate the transactions
contemplated by this Agreement.
SECTION 2.04 Absence of Claims. Stockholder has no knowledge of any cause of
action or other claim that could have been, or in the future might be, asserted
by Stockholder against Ashford or any of its predecessors, successors, assigns,
directors, employees, agents or representatives arising out of facts or
circumstances occurring at any time on or prior to the date hereof, except for
claims arising from (i) obligations under written agreements (which have been
provided to Guild prior to the execution of this Agreement) between Stockholder
and Ashford
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and (ii) obligations to pay any fees or salaries to (or provide other benefits
to) such Stockholder in such Stockholder's capacity as a director, officer,
employee or consultant to Ashford.
SECTION 2.05 Title to Shares. As of the date of this Agreement, Stockholder
is the record or beneficial owner of the Shares free and clear of all
encumbrances, proxy or voting restrictions other than pursuant to this
Agreement. The shares of Ashford Common Stock, including the options, warrants
or other rights to acquire such stock, set forth on Exhibit A hereto, are all
the securities of Ashford owned, directly or indirectly, of record or
beneficially by the Stockholder on the date of this Agreement.
SECTION 2.06 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times until termination of
this Agreement and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
ARTICLE III
COVENANTS OF STOCKHOLDER
------------------------
SECTION 3.01 Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Guild may
reasonably request for the purpose of carrying out and furthering the intent of
this Agreement.
SECTION 3.02 Release of Claims. (a) Stockholder, on behalf of Stockholder's
affiliates or any of their respective officers or directors, in the case of a
corporate entity, releases and forever discharges Ashford and its predecessors,
successor, assigns, officers, directors, stockholders, employees and agents, and
each of them, from any and all claims, actions, causes of actions, suits, debts,
liens, demands, contracts, liabilities, agreements, costs, expenses, or losses
of any type, whether known or unknown, fixed or contingent, based on any fact or
circumstance from the beginning of time to the date of this Agreement,
including, without limitation, any claims arising from such Stockholder's
ownership of the Shares, whether based on contract, tort, statute, local
ordinance, regulation or any comparable law in any jurisdiction.
(b) Stockholder hereby acknowledges that the Stockholder has been advised by
legal counsel and is familiar with Section 1542 of the California Civil Code,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Stockholder acknowledges in that connection that Stockholder may have
sustained damage, loss, cost or expense that is presently unknown or
unsuspected, and that such damage, loss, cost or expense as may have been
sustained may give rise to additional damage, loss, cost or expense in the
future. Nevertheless, Stockholder acknowledges that this Agreement has been
negotiated and agreed upon in light of this situation and expressly waives any
and all
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rights which the Stockholder may have under Section 1542 of the California Civil
Code, or any other state or federal statute or common law principle of similar
effect.
SECTION 3.03 Acknowledgement and Approval of the Merger Agreement.
Stockholder hereby acknowledges and agrees that the Stockholder has received a
copy of the Merger Agreement, including all schedules and exhibits thereto, and
that Stockholder has reviewed and understands the terms thereof. Stockholder
agrees to be bound by the terms of the Merger Agreement and all agreements
contemplated thereby and accepts and assumes the obligations of the stockholders
under the Merger Agreement and all agreements contemplated thereby.
SECTION 3.04 Waiver of Dissenters' Rights. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Merger or any related transaction that Stockholder or any
other person may have by virtue of the ownership of any Shares.
ARTICLE IV
GENERAL PROVISIONS
------------------
SECTION 4.01 Entire Agreement. This Agreement, the Merger Agreement and the
other agreements referred to herein and therein constitute the entire agreement
of the parties and supersedes all prior agreements and undertakings, both
written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 4.02 Survival of Representations and Warranties. All representations
and warranties made by Stockholder in this Agreement shall survive any
termination of the Merger Agreement and this Agreement.
SECTION 4.03 Indemnification. Stockholder shall hold harmless and indemnify
Guild and Guild's affiliates from and against, and shall compensate and
reimburse Guild and Guild's affiliates for, any loss, damage, claim, liability,
fee (including attorney's fees), demand, cost or expense (regardless of whether
or not such loss, damage, claim, liability, fee, demand, cost or expense relates
to a third-party claim) that is directly of indirectly suffered or incurred by
Guild or any of Guild's affiliates, or to which Guild or any of Guild's
affiliates otherwise becomes subject, and that arises directly or indirectly
from, or relates directly or indirectly to (i) any inaccuracy in or breach of
any representation or warranty contained in this Agreement or (ii) any failure
on the part of Stockholder to observe, perform or abide by, or any other breach
of, any restriction, covenant, obligation or other provision contained in this
Agreement.
SECTION 4.04 Assignment. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided that any assignment, delegation or
attempted transfer any of rights, interests or obligations under this Agreement
by the Stockholder without the prior written consent of Guild shall be void.
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SECTION 4.05 Fees and Expenses. Except as otherwise provided herein, 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.
SECTION 4.06 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the respective parties at the
following addresses (or at such other addresses as shall be specified by notice
given in accordance with this Section 4.06):
(a) If to Guild:
Xxxxx.xxx, Inc.
000 X. Xxxx Xxxxxx, Xxxxx 0
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Email address: xxxxxx@xxxxx.xxx
with a copy to:
Xxxxxx and Xxxxxx, P.A.
2400 IDS Center, 00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000]
(b) If to the Stockholder to:
c/o Stockholders' Representative
[Name]
[Address]
[Telephone No.]
[Facsimile No.]
SECTION 4.07 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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SECTION 4.08 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 materially
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 to the fullest extent permitted by
applicable law in an acceptable manner.
SECTION 4.09 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement is not
performed in accordance with its specific terms or is otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement, Guild
shall be entitled (in addition to any other remedy that may be available to it,
including monetary damages) to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation and (b) an injunction restraining such breach or threatened breach.
Stockholder further agrees that neither Guild nor any other party shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 4.09,
and Stockholder irrevocably waives any right he may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
SECTION 4.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that state without regard to any
conflicts of laws. In any action between the parties hereto arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement: (a) 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 Delaware, (b) if any such action is commenced in a state
court, then, subject to applicable law, no party shall object to the removal of
such action to any federal court located in Delaware, (c) each of the parties
irrevocably waives the right to a trial by jury and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid.
SECTION 4.11 No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Ashford shall
not be deemed to have waived any claim available to it arising out of this
Agreement, or any right, power or privilege hereunder, unless the waiver is
expressly set forth in writing duly executed and delivered on behalf of Ashford.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 4.12 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.
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[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, each of Guild, and Stockholder has executed or has
caused this Agreement to be executed by its duly authorized officer as of the
date first written above.
XXXXX.XXX, INC.
By:
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
STOCKHOLDER
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[Name: Title]
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EXHIBIT A
---------
SHARES HELD
Number of Shares
of Ashford
Common Stock
Number of Shares Issuable upon
of Ashford Exercise of
Common Stock Options, Warrants
Name of Owned Beneficially and Other Rights to
Stockholder and of Record Acquire Such Stock
------------------ ---------------------- ----------------------
A-1
EXHIBIT B
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IRREVOCABLE PROXY
The undersigned stockholder of Xxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of Xxxxx.xxx, Inc., a
Delaware corporation ("Guild"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "Shares") in accordance with the terms of this
Proxy. The Shares beneficially owned by the undersigned stockholder of the
Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Guild and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Guild
entering into that certain Agreement and Plan of Reorganization (the "Merger
Agreement"), among the Company, Ashford-Guild Art Corporation, a Delaware
corporation and a wholly owned subsidiary of Ashford ("Merger Sub"), and Guild.
The Merger Agreement provides for the merger of Merger Sub with and into Guild
in accordance with its terms (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger Agreement shall have been validly terminated pursuant to Section 7.1
thereof or (ii) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of Ashford and in every written consent in lieu of such meeting in favor of (i)
approval of the Merger, (ii) the execution and delivery by Ashford of the Merger
Agreement and the adoption and approval of the terms thereof, (iii) in favor of
each of the other actions contemplated by the Merger Agreement and any action
required in furtherance hereof and thereof and (iv) against any competing
transaction (as defined in the Merger Agreement) or any other matter that could
be reasonably be expected to delay or not to facilitate approval of the Merger.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder may vote
the Shares on all other
B-1
matters. Any obligation of the undersigned hereunder
shall be binding upon the successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated: January __, 2001
Signature of Stockholder:
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Print Name of Stockholder:
------------------------------
Shares beneficially owned:
_____ shares of the Company Common Stock
_____ shares of the Company Common Stock issuable
upon exercise of outstanding options or warrants
SIGNATURE PAGE TO IRREVOCABLE PROXY
B-2
