EXHIBIT 10
EXECUTION COPY
VOTING AGREEMENT
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This Voting Agreement (the "Agreement"), dated as of March 29,
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2002, is by and among each of the persons listed on the signature pages hereto
(each, an "Equityholder" of American International Golf, Inc. ("Newco"),
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National Golf Properties, Inc. ("NGP") and/or National Golf Operating
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Partnership, L.P. ("NGOP"), as the case may be), NGP and NGOP.
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(A) Newco, NGP, NGOP and certain other persons are parties to an
Agreement and Plan of Merger and Reorganization dated as of the date hereof (as
the same may be modified or amended from time to time, the "Merger Agreement").
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Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Merger Agreement.
(B) NGP and NGOP have agreed to enter into the Merger Agreement
on the condition that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Representations, Warranties and Covenants.
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Each Equityholder (with respect to itself only) hereby
represents, warrants and covenants, severally and not jointly and only with
respect to such Equityholder's Interests (as defined below), to NGP and NGOP, as
applicable, as follows:
(a) Title
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As of the date hereof, each Equityholder owns beneficially and of
record (i) the number of shares of each class of capital stock of NGP set forth
after each Equityholder's name on Exhibit 1 hereto (with respect to each
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Equityholder, the beneficial interests in NGP specified after each
Equityholder's name on Exhibit 1 hereto shall be referred to herein as the
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"Shares") and (ii) the number of NGOP Common Units set forth after each
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Equityholder's name on Exhibit 1 hereto (with respect to each Equityholder, the
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beneficial interests in NGOP specified after each Equityholder's name on Exhibit
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1 hereto shall be referred to herein as the "Partnership Interests" and with
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respect to each Equityholder, the Partnership Interests together with the Shares
specified after each Equityholder's name on Exhibit 1 hereto shall be referred
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to herein as the "Interests"). The term "beneficial owner" and all correlative
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expressions are used in this Agreement as defined in Rules 13d-3 and 16a-1 under
the Securities Exchange Act of 1934, as amended; provided, however, that for
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purposes of this Agreement the Prices (i) shall be deemed to beneficially own
only those Interests over which they have, individually or together, the power
to vote or direct the vote, as distinguished from the power to influence the
vote, of such Interests, and (ii) shall be deemed not to beneficially own any
Interests owned of record by either Oaks Christian School or the Dallas P. Price
Charitable Lead Trust #1 benefiting the Museum of Contemporary Art.
(b) Right to Vote
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Except as set forth on Schedule A hereto, as of the date hereof
and at all times until the earlier of the (i) Closing Date and (ii) the date of
termination of the Merger Agreement in accordance with its terms, except for
this Agreement and as otherwise permitted by this Agreement, each Equityholder
has full legal power, authority and right to vote all of the Interests, to the
extent the Interests carry the right to vote thereon, in favor of the approval
and authorization of the NGP Merger, the NGOP Merger, the Merger Agreement and
the other transactions contemplated thereby (collectively, the "Proposed
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Transactions") without the consent or approval of, or any other action on the
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part of, any other person or entity. Without limiting the generality of the
foregoing, except for this Agreement and as otherwise permitted by this
Agreement, except as set forth on Schedule A hereto, each Equityholder has not
entered into any voting agreement with any person or entity with respect to any
of the Interests, granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any of the Interests,
deposited any of the Interests in a voting trust or entered into any arrangement
or agreement with any person or entity limiting or affecting its legal power,
authority or right to vote the Interests in favor of the Proposed Transactions.
From the date hereof and until the earlier of (i) the date of
termination of the Merger Agreement in accordance with its terms and (ii) the
Closing Date, except as otherwise permitted by this Agreement, each Equityholder
will not commit any act that could restrict or otherwise affect its legal power,
authority and right to vote all of the Interests, to the extent the Interests
carry the right to vote thereon, in favor of the Proposed Transactions. Without
limiting the generality of the foregoing, except for this Agreement and as
otherwise permitted by this Agreement, from the date hereof and until the
earlier of (i) the date of termination of the Merger Agreement in accordance
with its terms and (ii) the Closing Date, each Equityholder will not enter into
any voting agreement with any person or entity with respect to any of the
Interests, grant any person or entity any proxy (revocable or irrevocable) or
power of attorney with respect to any of the Interests, deposit any of the
Interests in a voting trust or otherwise enter into any agreement or arrangement
with any person or entity, which in any such case limits or affects each
Equityholder's legal power, authority or right to vote the Interests in favor of
the approval of the Proposed Transactions.
(c) Authority
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Each Equityholder has full legal power, authority and right to
execute and deliver, and to perform his or its obligations under this Agreement.
This Agreement has been duly and validly executed and delivered by each
Equityholder and constitutes a valid and binding agreement of each Equityholder
enforceable against each Equityholder in accordance with its terms.
(d) Conflicting Instruments
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Neither the execution and delivery of this Agreement nor the
performance by each Equityholder of his or its agreements and obligations
hereunder will result in any breach or violation of or be in conflict with or
constitute a default under any term of any agreement, judgment, injunction,
order, decree, law, regulation or arrangement to which each Equityholder is a
party or
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by which each Equityholder (or any of his or its assets) is bound, except for
any such breach, violation, conflict or default which, individually or in the
aggregate, would not impair or adversely affect each Equityholder's ability to
perform its obligations under this Agreement.
2. Restrictions on Transfer.
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(a) Each Equityholder agrees, for a period from the date hereof
until the earlier of the Closing Date and the termination of the Merger
Agreement in accordance with its terms, not to Transfer (or to agree to
Transfer) any Interests, or warrants, options or other rights to acquire or
receive any Shares or Partnership Interests (collectively, "Rights"), owned of
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record or beneficially by such Equityholder, unless the transferor remains, and
agrees in writing to remain, and the transferee agrees in writing to be, bound
by the terms of this Agreement.
(b) Each Equityholder agrees, for a period from the date hereof
until the earlier of the Closing Date and the termination of the Merger
Agreement in accordance with its terms, not to effect, directly or indirectly,
or through any arrangement with a third party pursuant to which such third party
may effect, directly or indirectly, any short sales of any share of NGP capital
stock or NGOP Common Units or any derivative securities relating to NGP capital
stock or NGOP Common Units.
(c) As used in this Agreement, the term "Transfer" means, with
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respect to any security, the direct or indirect assignment, sale, transfer,
tender, pledge, hypothecation, or the grant, creation or sufferage of a lien or
encumbrance in or upon, or the gift, placement in trust, or the constructive
sale or other disposition of such security (including transfers by testamentary
or intestate succession or operation of law), or the record or beneficial
ownership thereof, the offer to make such a sale, transfer, constructive sale or
other disposition, and each agreement, arrangement or understanding, whether or
not in writing, to effect any of the foregoing. The term "constructive sale"
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means a short sale with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security or entering
into any other hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership.
3. Agreement to Vote; No Solicitation.
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Each Equityholder, in its capacity as an equity holder of NGP
and/or NGOP, as the case may be, hereby irrevocably and unconditionally agrees,
for a period from the date hereof until the earlier of the Closing Date and the
termination of the Merger Agreement in accordance with its terms to vote or to
cause to be voted all of the Interests, to the extent the Interests carry the
right to vote thereon, at each annual or special meeting of Equityholders of NGP
where any such proposal is submitted, and/or at each meeting of Equityholders of
NGOP and in any action by written consent in lieu thereof, (i) in favor of the
Proposed Transactions and (ii) against (x) approval of any proposal made in
opposition to or in competition with the transactions contemplated by the Merger
Agreement and (y) any merger, consolidation, sale of assets, business
combination, share exchange, reorganization or recapitalization of NGP, NGOP or
any of their respective subsidiaries, with or involving any party other than as
contemplated by the Merger
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Agreement, (iii) against any liquidation or winding up of NGP and/or NGOP, (iv)
against any extraordinary dividend by NGP and/or NGOP, (v) against any change in
the capital structure of NGP and/or NGOP (other than pursuant to the Merger
Agreement) and (vi) against any other action that may reasonably be expected to
impede, interfere with, delay, postpone or attempt to discourage the NGP Merger,
the NGOP Merger or consummation of the other transactions contemplated by the
Merger Agreement or result in a breach of any of the covenants, representations,
warranties or other obligations or agreements of NGP, NGOP, any member of the
Price Group or the Price Entities under the Merger Agreement, which would
adversely affect NGP, NGOP, any member of the Price Group or the Price Entities
or their respective abilities to consummate the transactions contemplated by the
Merger Agreement.
4. Granting of Proxy.
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In furtherance of the terms and provisions of this Agreement,
each Equityholder hereby grants an irrevocable proxy (subject to Section 10 of
this Agreement), coupled with an interest, to (i) each of the Chief Executive
Officer of NGP, the Secretary of NGP and any other NGP authorized representative
or agent and to vote all of the Shares beneficially owned by each Equityholder
and (ii) to NGP, in its capacity as General Partner of NGOP, to vote all of the
Partnership Interests beneficially owned by each Equityholder, in each case in
favor of the Proposed Transactions and against any of the matters specified in
Section 3 for the period from the date hereof until the Closing Date or earlier
termination of the Merger Agreement in accordance with its terms. Each
Equityholder hereby ratifies and approves of each and every action taken by (i)
the Chief Executive Officer of NGP, the Secretary of NGP and any other NGP
authorized representative or agent and/or (ii) NGP, in its capacity as General
Partner, as applicable, pursuant to the foregoing proxy. Notwithstanding the
foregoing, if reasonably requested by NGP, each Equityholder will execute and
deliver applicable proxy material in furtherance of the provisions of Sections 3
and 4.
5. Action in Equityholder Capacity Only.
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Each Equityholder who is a director or officer of NGP and/or NGOP
makes no agreement or understanding herein as director or officer of NGP and/or
NGOP. Each Equityholder signs solely, individually and in his capacity as a
record holder and beneficial owner of Interests, and nothing herein shall limit
or affect any actions taken in his capacity as an officer or director of NGP
and/or NGOP. Nothing herein is intended require any Equityholder who is a party
to the Merger Agreement in any capacity to agree to or execute any amendment or
modification to the Merger Agreement or to waive any provision, right or
obligation set forth in the Merger Agreement.
6. Interpretation.
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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. In this Agreement, unless a contrary intention appears, (i) the
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section or other
subdivision, and (ii) reference to any Article or Section means such Article or
Sec-
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tion hereof. No provision of this Agreement shall be interpreted or construed
against any party hereto solely because such party or its legal representative
drafted such provision. Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
7. Successors and Assigns.
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The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective legal successors
(including in the case of any individual Equityholder or any other individual,
any executors, administrators, estates, legal representatives and heirs of such
Equityholder or such individual) and permitted assigns; provided, however, that,
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except as otherwise provided in this Agreement, no party may assign, delegate or
otherwise transfer (by operation of law or otherwise) any of its rights or
obligations, under this Agreement without the consent of NGP and NGOP. For the
avoidance of doubt, Equityholders may assign, delegate or otherwise transfer any
of their respective rights or obligations under this Agreement in connection
with any Transfer permitted under Section 2(a). Without limiting the scope or
effect of the restrictions on Transfer set forth in Section 2, each Equityholder
agrees that this Agreement and the obligations hereunder shall attach to the
Interests and shall be binding upon any person or entity to which legal or
beneficial ownership of such Interests shall pass, whether by operation of law
or otherwise.
8. Miscellaneous.
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The parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the Court of Chancery or other
Courts of the State of Delaware, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of the Court
of Chancery or other Courts of the State of Delaware in the event any dispute
arises out of this Agreement or the transactions contemplated by this Agreement,
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (c) agrees that it
will not bring any action relating to this Agreement or the transactions
contemplated by this Agreement in any court other than the Court of Chancery or
other Courts of the State of Delaware, and each of the parties irrevocably
waives the right to trial by jury, (d) agrees to waive any bonding requirement
under any applicable law, in the case any other party seeks to enforce the terms
by way of equitable relief and (e) 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. THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION
AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.
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9. Counterparts.
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This Agreement may be executed in two or more counterparts, and
by facsimile, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
10. Amendments; Termination.
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This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by all parties hereto. Except for provisions of this Agreement that by
their terms survive the termination hereof (including without limitation Section
15), the provisions of this Agreement shall terminate upon the earliest to occur
of (i) the Closing Date, and (ii) the termination of the Merger Agreement in
accordance with its terms.
11. Entire Agreement.
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This Agreement, together with the Merger Agreement, the
Confidentiality Agreement, and the documents and agreements contemplated
thereby, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings
and negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement (other than the Merger Agreement, the
Confidentiality Agreement, and the documents and agreements contemplated
thereby). No representation, inducement, promise, understanding, condition or
warranty not set forth herein has been made or relied upon by any party hereto.
Neither this Agreement nor any provision hereof is intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
12. Severability.
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If any provision of this Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such invalidity or unenforceability only, without it affecting the
remaining provisions of this Agreement.
13. Specific Performance.
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The parties hereto agree that irreparable damage would occur in
the event any of the provisions of this Agreement were not to be performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof in addition to any other remedies at
law or in equity.
14. Additional Interests.
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If, after the date hereof, any Equityholder acquires beneficial
ownership of any additional shares of NGP capital stock or NGOP Common Units
(any such shares or units, "Additional Interests"), including upon exercise of
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any option, warrant or right to acquire shares of NGP capital stock or NGOP
Common Units or through any equity dividend or equity split, the provisions of
this Agreement applicable to the Interests shall be applicable to such
Additional
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Interests as if such Additional Interests had been Interests as of the date
hereof. The provisions of the immediately preceding sentence shall be effective
with respect to Additional Interests without action by any person or entity
immediately upon the acquisition by any Equityholder of beneficial ownership of
such Additional Interests.
15. Subsequent Agreement
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The Equityholders agree that if, at the time of the Closing, a
third-party investor has not made an equity investment in Newco and/or provided
financing to Newco as contemplated by Section 13.2(f) of the Merger Agreement,
then the Equityholders shall on the Closing Date enter into a voting agreement
with Newco, containing terms that are substantially identical to the terms
contained herein, pursuant to which such Equityholders shall commit to vote the
shares of common stock, par value $.01 per share, of Newco that they receive in
the NGP Merger and the NGOP Merger in favor of the issuance of equity securities
to, and/or the provision of financing by, such third-party investor at each
meeting of stockholders of Newco where any such proposal is submitted; provided
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that such agreement shall terminate the earlier of the consummation of such
investment and/or financing and the second anniversary of the Closing Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AMERICAN INTERNATIONAL GOLF, INC.
By /s/ Xxxxxxx X. Xxxx
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Title: CEO
NATIONAL GOLF PROPERTIES, INC.
By /s/ Xxxxxxx X. Xxxx
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Title: Interim CEO
NATIONAL GOLF OPERATING PARTNER-
SHIP, L.P.
By /s/ Xxxxxxx X. Xxxx
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Title: Interim CEO
XXXXX X. XXXXX
By /s/ Xxxxx X. Xxxxx
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DALLAS P. PRICE
By /s/ Dallas P. Price
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XXXXX X. XXXXX TRUST DATED MARCH 5,
1998, AS AMENDED
By /s/ Xxxxx X. Xxxxx
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DALLAS P. PRICE TRUST DATED MAY 14,
1998, AS AMENDED
By /s/ Dallas P. Price
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