VOTING AGREEMENT, IRREVOCABLE PROXY AND FORM OF STOCKHOLDERS’ WRITTEN CONSENT
VOTING
AGREEMENT, IRREVOCABLE PROXY
AND
FORM OF STOCKHOLDERS’ WRITTEN CONSENT
This
Voting Agreement, Irrevocable Proxy and Form of Stockholders’ Written
Consent,
dated
as of April 14, 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”);
and
B. Solidus
and WinWin intend to enter into an 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 (the
“Restated
Charter”);
and
C. 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.
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, (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.
1
(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, (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 Initial Closing (as defined in the Joint
Venture Agreement) shall have occurred.
(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, the written consent of Stockholder delivered in connection herewith
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
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.
(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.
3
(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 of the power to direct the voting
thereof. The Shares constitute Stockholder’s entire interest in the outstanding
capital stock of WinWin. 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 SEC 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.
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:
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| if to WinWin: | |
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:
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WinWin
Gaming, Inc.
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0000
Xxxx Xxxxxx, Xxxxx 000
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Xxx
Xxxxx, XX 00000
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Tel:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxxxxx Xxxxxx
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with
a copy to:
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Xxxxxx
Xxxx & Priest LLP
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000
Xxxxxx Xxxxxx, X.X.
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Xxxxxxxxxx,
X.X. 00000
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Tel:
000.000.0000
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Fax:
000.000.0000
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Attention:
Xxxxx
X. Xxxxxxxxxx
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Solidus
Networks, Inc.
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000
Xxxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
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Tel:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxx Xxxxxx
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with
a copy to:
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Cooley
Godward
llp
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000
Xxxxxxxxxx Xxxxxx, 0xx
Xxxxx
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Xxx
Xxxxxxxxx, XX 00000
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Tel:
(000) 000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxxxxx X. Xxxxxxxx
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| if to a Stockholder: | |
| To the address of Stockholder on file with WinWin |
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.
5
(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.
(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.
(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).
6
(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.
(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]
7
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.
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Solidus
Networks, Inc.
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
President
and Chief Executive Officer
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Stockholder
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Signature
of Stockholder
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Printed
Name of Stockholder
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Name
of Person Signing for the Stockholder (If signing
in a representative
capacity for a corporation, trust, partnership
and other
entity)
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxxxxx Xxxxxx
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Signature
of Stockholder
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| Xxxxxx Living Trust | ||
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Printed
Name of Stockholder
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Xxxxxxx
Xxxxxx
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Name
of Person Signing for the Stockholder (If signing
in a representative
capacity for a corporation, trust, partnership
and other
entity)
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Managing
Director
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxxxxx Xxxxxx
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Signature
of Stockholder
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China
Xxx Trust
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Printed
Name of Stockholder
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Xxxxxxx
Xxxxxx
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Name
of Person Signing for the Stockholder (If signing
in a representative
capacity for a corporation, trust, partnership
and other
entity)
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Managing
Director
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxxxxx Xxx
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Signature
of Stockholder
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Xxxxxxx
Xxx
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Printed
Name of Stockholder
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Name
of Person Signing for the Stockholder (If
signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxx Xxx
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Signature
of Stockholder
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Xxxx
Xxx
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Printed
Name of Stockholder
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Name
of Person Signing for the Stockholder (If signing
in a representative
capacity for a corporation, trust, partnership
and other
entity)
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxxxxx Xxxxxxxx
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Signature
of Stockholder
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ICAG,
Inc.
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Printed
Name of Stockholder
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Xxxxxxx
Xxxxxxxx
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Name
of Person Signing for the Stockholder (If
signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
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President/CEO
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Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
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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.
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Solidus
Networks, Inc.
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Xxxxx
Xxxxxx
Executive
Vice President
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WinWin
Gaming, Inc.
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Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
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Stockholder
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/s/
Xxxxxxx X. Xxxx
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Signature
of Stockholder
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Xxxx
Family Trust
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||
|
Printed
Name of Stockholder
|
||
|
Xxxxxxx
X. Xxxx
|
||
|
Name
of Person Signing for the Stockholder (If
signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
|
||
|
Trustee
|
||
|
Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
|
||
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxx Xxxxxxxxx
|
|
Signature
of Stockholder
|
||
|
Galt
Funding LLC
|
||
|
Printed
Name of Stockholder
|
||
|
Xxxx
Xxxxxxxxx
|
||
|
Name
of Person Signing for the Stockholder (If
signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
|
||
|
Manager
|
||
|
Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
|
||
[Signature
page to Voting Agreement, Irrevocable Proxy
and
Form of Stockholders’ Written Consent]
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxx X. Xxxxxx
|
|
Signature
of Stockholder
|
||
|
Xxxx
X. Xxxxxx
|
||
|
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 Voting Agreement, Irrevocable Proxy
and
Form of Stockholders’ Written Consent]
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxxxx Xxxxxx
|
|
Signature
of Stockholder
|
||
|
Xxxxxx
Xxxxxx
|
||
|
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 Voting Agreement, Irrevocable Proxy
and
Form of Stockholders’ Written Consent]
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxxx Xxxx
|
|
Signature
of Stockholder
|
||
|
Landward
International Ltd.
|
||
|
Printed
Name of Stockholder
|
||
|
Xxxxx
Xxxx
|
||
|
Name
of Person Signing for the Stockholder (If
signing in a representative
capacity for a corporation, trust, partnership
and other
entity)
|
||
|
Managing
Director
|
||
|
Title
of Person Signing for the Stockholder
(If signing in a representative
capacity for a corporation, trust,
partnership and other
entity)
|
||
[Signature
page to Voting Agreement, Irrevocable Proxy
and
Form of Stockholders’ Written Consent]
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxx Xxxxxxxx
|
|
Signature
of Stockholder
|
||
|
Xxxx
Xxxxxxxx
|
||
|
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 Voting Agreement, Irrevocable Proxy
and
Form of Stockholders’ Written Consent]
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.
|
||
| |
|
|
|
Xxxxx
Xxxxxx
Executive
Vice President
|
||
|
WinWin
Gaming, Inc.
|
||
| |
|
|
|
|
||
|
Xxxxxxx
Xxxxxx
President
and Chief Operating Officer
|
||
|
Stockholder
|
||
| |
|
/s/
Xxxxxx Call
|
|
Signature
of Stockholder
|
||
|
Xxxxxx
Call
|
||
|
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 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 provide for a purchase option in favor of Solidus Networks, Inc.
(the "Purchase Option"), (ii) to provide a redemption right in favor of the
Company with respect to all shares of Company common stock (the "Redemption
Right") (iii) to designate a series of preferred stock as "Series A Preferred
Stock," (iv) to authorize an aggregate of 60,000,000 shares of Series A
Preferred Stock, (v) to set forth the rights, preferences and privileges of
the
Series A Preferred Stock, (vi) to increase the number of authorized shares
of
Company common stock to 750,000,000 and (vii) 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
substantially the form attached hereto as Exhibit A (the “Restated
Certificate”);
Resolved
Further,
that the
Purchase Option and the Redemption Right are hereby acknowledged and approved
in
all respects; 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 resolutions, and all such actions hereto fore taken
by
the officers in connection therewith are hereby ratified and
approved.
This
written consent shall terminate and cease to be effective upon the valid
termination of the Joint Venture Agreement.
[Signature
page follows]
1
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxxx Xxxxxx |
| Signature of Stockholder |
| Xxxxxx Living Trust |
| Printed Name of Stockholder |
| Xxxxxxx Xxxxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| Managing Director |
| Title of Person Signing for 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 8,500,000
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxxx Xxxxxx |
| Signature of Stockholder |
| China Xxx Trust |
| Printed Name of Stockholder |
| Xxxxxxx Xxxxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| Managing Director |
| Title of Person Signing for 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 500,000
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxxx Xxx |
| Signature of Stockholder |
| Xxxxxxx Xxx |
| 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 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 921,021
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxx Xxx |
| Signature of Stockholder |
| Xxxx Xxx |
| 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 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 766,443
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxxx Xxxxxxxx |
| Signature of Stockholder |
| ICAG, Inc. |
| Printed Name of Stockholder |
| Xxxxxxx Xxxxxxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| President/CEO |
| Title of Person Signing for 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 742,027
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxxx X. Xxxx |
| Signature of Stockholder |
| Xxxx Family Trust |
| Printed Name of Stockholder |
| Xxxxxxx X. Xxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| Trustee |
| Title of Person Signing for 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 307,608
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxx Xxxxxxxxx |
| Signature of Stockholder |
| Galt Funding LLC |
| Printed Name of Stockholder |
| Xxxx Xxxxxxxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| Manager |
| Title of Person Signing for 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 2,430,773
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxx X. Xxxxxx |
| Signature of Stockholder |
| Xxxx X. Xxxxxx |
| 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 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 150,850
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxx Xxxxxx |
| Signature of Stockholder |
| Xxxxxx Xxxxxx |
| 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 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 4,932,678
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxx Xxxx |
| Signature of Stockholder |
| Landward International Ltd. |
| Printed Name of Stockholder |
| Xxxxx Xxxx |
| Name of Person Signing for the Stockholder (If signing in a representative capacity for a corporation, trust, partnership and other entity) |
| Managing Director |
| Title of Person Signing for 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 2,279,347
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxx Xxxxxxxx |
| Signature of Stockholder |
| Xxxx Xxxxxxxx |
| 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 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 4,043,600
2
The
undersigned has signed this written consent on the date appearing next to
the
undersigned’s name.
Dated:
April 13, 2006
| /s/ Xxxxxx Call |
| Signature of Stockholder |
| Xxxxxx Call |
| 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 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 72,000
2
