Exhibit 10.13
VOTING AGREEMENT
Voting Agreement (the "Agreement") dated as of the 2nd day of June
1995, among International Sports Wagering Inc., a Delaware corporation (the
"Company"), Xxxxx Xxxxxx (the "Founder"), and the investors listed on Schedule A
hereto (the "Investors").
W I T N E S S E T H:
WHEREAS, the Company and the Investors have entered into a Purchase
Agreement of even date herewith (the "Purchase Agreement"), pursuant to
which the Investors shall purchase certain shares of the Company's Common
Stock (the "Common Stock") and Warrants to purchase the Company's Common
Stock (the "Warrants"); and
WHEREAS, a condition to the obligations of the parties under the
Purchase Agreement is that the Company, the Founder and the Investors enter
into this Voting Agreement for the purpose of setting forth the terms and
conditions under which the Investors and the Founder shall, in certain
cases, vote their respective shares of the Company's Common Stock in the
election of directors.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and agreements contained herein, the parties hereby agree as
follows:
1. SELECTION OF DIRECTORS.
(a) AGREEMENT TO CONSTITUTE BOARD. The Company's Board of Directors shall
consist of five (5) members. The Investors and the Founder hereby agree and
covenant to vote all of the Common Stock and other voting securities of the
Company then owned by the Investors and Founder, respectively, or as to which
the Investors and the Founder have voting power, at a meeting of stockholders or
by written consent in lieu of a meeting, to cause to be elected or appointed to
the Board of Directors of the Company; the Investors' Representatives (as
defined in Section 1(b) below); and (ii) the Founder's Representatives (as
defined in Section 1(b) below.
(b) INVESTOR'S REPRESENTATIVES. The Investors' representatives shall
consist of two persons selected by the Investors (the "Investor's
Representatives").
(c) FOUNDER'S REPRESENTATIVES. The Founder's representatives shall
consist of three persons selected by the Founder (the "Founder's
Representatives").
(d) SUCCESSOR DIRECTORS. In the event that any of the persons nominated
pursuant to Sections 1(b) or (c) is unable or unwilling to serve as a director,
then the parties hereto agree to nominate and elect successors as follows:
(i) If the director in question is a nominee of the Investors, then
the successor director shall be nominated by the Investors and all of the
parties hereto agree to vote in favor of such nominee; and
(ii) If the director in question is a nominee of the Founder then the
successor director shall be nominated by the Founder, and all of the parties
hereto agree to vote in favor of such nominee.
In addition, the Investors and the Founder agree to vote their voting securities
for the removal (including removal without cause) of any director upon
instructions in writing to such effect from the party that designated such
director.
(e) SPECIFICATION OF DESIGNEES. Each of the parties entitled to designate
one or more of the directors shall notify the Company and the other parties
hereto of such designee within ten (10) days of receipt from the Company of
notice of any proposed stockholder meeting or the taking of any other action for
the purpose of electing directors. If a designee is not specified as provided
herein, the existing designees of such party or parties shall be elected or
appointed in accordance with this Agreement.
(f) BOARD MEMBERS. The members of the Board of Directors as of the Second
Closing (as defined in the Purchase Agreement), shall be comprised of Xxxxx
Xxxxxx, two persons designated by Xxxxx Xxxxxx, as the Founder's
Representatives, and Xxx Xxxxxxxx and Xxxxx Xxxxxxxxxx as the Investors'
Representatives. All such directors shall remain in office until the next
annual meeting of the stockholders of the Company or such time as the
stockholders of the Company, pursuant to a special meeting or written consent in
lieu thereof, shall elect their successors.
2. LEGEND ON CERTIFICATES. Each certificate representing shares of Common
Stock held by the Investors or the Founder, and any assignees or transferees
thereof, shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED AS OF JUNE 2, 1995, WHICH HAS BEEN DEPOSITED WITH THE
COMPANY AT ITS PRINCIPAL OFFICE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
UPON WRITTEN REQUEST FROM THE SECRETARY OF THE COMPANY.
A counterpart of this Agreement shall be deposited with the Company at its
principal office and shall be subject to the same
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rights of examination by a stockholder of the Company (or a proposed bona fide
assignee or transferee thereof), in person or by agent or attorney, as are the
books and records of the Company.
3. NO LIABILITY FOR ELECTION OF RECOMMENDED DIRECTORS. Neither the Company,
the Founder, the Investors, nor any officer, director, stockholder, partner,
employee or agent of such parties, makes any representation or warranty as to
the fitness or competence of the nominee of any party hereunder to serve on the
Board of Directors of the Company by virtue of such party's execution of this
Agreement or by the act of such party in voting for such nominee pursuant to
this Agreement.
4. GRANT OF PROXY. Should the provisions of this Agreement be construed to
constitute the granting of proxies, such proxies shall be deemed coupled with an
interest and are irrevocable for the term of this Agreement.
5. SPECIFIC ENFORCEMENT. It is agreed and understood that monetary damages
would not adequately compensate an injured party for the breach of this
Agreement by any party, that this Agreement shall be specifically enforceable,
and that any breach or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining order. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
6. MANNER OF VOTING. The voting of shares pursuant to this Agreement may be
effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
7. AMENDMENT AND WAIVERS. Any term hereof may be amended and the observance
of any term hereof may be waived only with the written consent of each party
hereto. Any amendment or waiver so effected shall be binding upon the Company,
the Investors and the Founder and any assignee or transferee thereof.
8. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any additional
issuance of securities to the Founder or Investors, including but not limited
to, any securities issued on a stock split, stock dividend, recapitalization,
reorganization or combination, or upon exercise of any stock option or warrant,
the securities issued to the Investors or the Founder shall be subject to this
Agreement.
9. SEVERABILITY. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating
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the remainder of such provision or the remaining provisions of this Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York without regard to principles
of conflict of laws.
11. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but which shall together constitute a single
instrument.
12. ASSIGNEES AND TRANSFEREES. The Investors and the Founder hereby agree, and
any transferee or assignee of any voting securities of the Company that are
owned by the Investors or the Founder is hereby on notice that, any transfer or
assignment of such securities of the Company is conditioned upon such
transferee's or assignee's execution and delivery of this Agreement prior to
such transfer or assignment for the purpose of becoming a party to this
Agreement. Any transfer or assignment of any of such voting securities of the
Company in violation of this Section 12 shall be void and be of no force or
effect.
13. CAPTIONS. The captions and headings contained in this agreement are for
the convenience of the parties only and shall not effect the interpretation or
construction of this Agreement.
14. NOTICES. All notices ("NOTICES") hereunder shall be in writing, signed by
the party giving or making the same, and shall be delivered personally or sent
by internationally recognized courier service or by telex or facsimile
transmission to each party entitled to receive the same, at such party's last
known address on the books of the Corporation, unless such party shall have
previously notified in writing the party sending such Notice of a change of
address, in which case it shall be sent to the new address. A copy of each such
Notice to the Corporation or the Founder shall also be sent in similar fashion
to Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx, 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq. A copy of each such
Notice to the Investors shall also be sent in similar fashion to Mr. Xxxxxxx
Xxxxx, c/o Geo Capital, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
All Notices shall be deemed given when delivered, sent or transmitted in
accordance herewith.
15. TERM. This Agreement shall terminate and be of no further force or effect
upon the first to occur of (a) any merger or sale of the Company in which the
Company is not the surviving corporation (other than a merger with or into a
wholly-owned subsidiary) or any transaction in which more than 50% of the voting
power of the Company is disposed of; (b) the consummation of the Company's sale
of its Common Stock or other securities pursuant to a registration statement
under the Securities Act of 1933, as amended,
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(other than a registration statement relating either to sale of securities to
employees of the Company pursuant to its stock option stock purchase or similar
plan or a SEC Rule 145 transaction); or (c) if the Investors and their
affiliates do not purchase or cease to own at least twenty-five percent (25%) of
the outstanding voting securities of the Company. In the event that the
Investors fail to timely exercise all Warrants to purchase 400,000 shares of
Common Stock of the Company then the number of Investor's Representatives
referred to in Section 1(b) shall be reduced to one person and the number of
Founder's Representatives referred to in Section 1(c) shall be increased to four
persons, and all other provisions of this Agreement shall continue in accordance
with the terms set forth herein.
16. SURVIVAL. The provisions of Section 3 of this Agreement shall survive the
termination of this Agreement.
17. EXECUTION BY THE COMPANY. The Company, by its execution in the space
provided below, agrees that it will cause the certificate(s) evidencing the
shares of Common Stock to bear the legend required by Section 2 herein, and it
shall supply, free of charge, a copy of this Agreement to any holder of a
certificate evidencing shares of capital stock of the Company upon written
request from such holder to the Company at its principal office. The parties
hereto do hereby agree that the failure to cause the certificates evidencing the
shares of Common Stock to bear the legend required by Section 2 herein and/or
failure of the Company to supply, free of charge, a copy of this Agreement as
provided under this Section 2 shall not affect the validity or enforceability of
this Agreement.
18. OTHER MATTERS. This Agreement shall not effect the rights of the Founder
or the Investors with respect to voting on any matters on which stockholders of
the Company are entitled to vote, whether granted by law or by the Certificate
of Incorporation of the Company, except with respect to the election of
directors of the Company.
19. MISCELLANEOUS.
(a) This Agreement contains the entire understanding of the parties hereto
concerning the subject matter hereof and supersedes any and all prior agreements
made by the parties with respect thereto and may not be amended, terminated or
discharged, except by an instrument in writing, signed by the party to be
charged.
(b) Each of the parties agrees to execute and deliver any and all
documents or other instruments and shall do or cause to be done all such acts or
things as may reasonably be necessary or proper to carry out the purposes of
this Agreement.
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(c) The parties hereto irrevocably consent that any suit, legal action or
proceeding with respect to any of the rights or obligations arising directly or
indirectly under or relating to this Agreement may be brought in any New York
State or United States federal court located in the Borough of Manhattan, City
and State of New York, and by execution and delivery of this Agreement each
party hereby irrevocably submits to and accepts with regard to any such suit,
legal action or proceeding, for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Each party
irrevocably consents to the service of process in any such suit, legal action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, return receipt requested, to it at its address set forth
herein. The foregoing shall not limit the right of any party to serve process
in any other manner permitted by law. Each party hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any suit,
legal action or proceeding arising directly or indirectly under or relating to
this Agreement in any court located in the Borough of Manhattan, City and State
of New York and hereby further irrevocably waives any claim that a court located
in the Borough of Manhattan, City and State of New York is not a convenient
forum for any such suit, legal action or proceeding. Each party hereby (i)
irrevocably waives any right it may have under the laws of any jurisdiction to
commence by publication any suit, legal action or proceeding with respect to
this Agreement, and (ii) irrevocably agrees that any suit, legal action or
proceeding commenced by it with respect to any rights or obligations arising
directly or indirectly under or relating to this Agreement shall be brought
exclusively in any New York State or United States federal court located in the
Borough of Manhattan, City and State of New York.
The parties hereto have executed this Agreement as of the and year first
written above.
COMPANY: FOUNDER:
INTERNATIONAL SPORTS WAGERING INC.
By: /s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President Xxxxx Xxxxxx
Address: 00 Xxxxxxx Xxxx Address: 00 Xxxxxxx Xxxx
Xxxxx, XX 00000 Xxxxx, XX 00000
Fax: 000-000-0000 Fax: 000-000-0000
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SCHEDULE A
SCHEDULE OF INVESTORS
INITIAL CLOSING:
---------------
Seneca Ventures
Woodland Partners
Woodland Venture Fund
Xxxxxxx Xxxxxxxxxx
Xxx Xxxxxxxx
SECOND CLOSING:
--------------
DISS Partners
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
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INVESTORS, CONT.
Xxxxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
XxxXxxx Xxxx
Xxxx X. Xxxxxxx
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