VOTING AGREEMENT
Exhibit
10.13
THIS
VOTING AGREEMENT (this “Agreement”) is
entered into as of June 1, 2009, by and between Xxxxxxxx Xxxxxx (collectively
the “Management
Shareholders”), (collectively, the “MoqiZone Cayman Shareholders”) and
the undersigned shareholder (the “Trestle Shareholder,” and
together with the MoqiZone Cayman Shareholders and Management Shareholders, the
“Shareholders”)) of Trestle Holdings, Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS,
MoqiZone Holdings Limited, a Cayman Islands corporation (“MoqiZone Cayman”),
Xxxxxxxx Xxxxxx (“Xxxxxx”), the
Management Shareholders, the Shareholder and the Company entered into a Share
Exchange Agreement dated as of March 15, 2009 (the “Exchange Agreement”).
Capitalized terms used herein without definition have the meanings set forth in
the Exchange Agreement;
WHEREAS,
the stockholders of MobiZone Holdings Limited, a Hong Kong corporation (“MobiZone Hong Kong”),
have agreed to exchange all of their MobiZone Hong Kong shares for 100% of the
capital stock of MoqiZone Cayman, and pursuant to the Exchange Agreement, within
10 days after completion of the Maximum Offering, the MoqiZone Cayman
Shareholders will exchange (the “Share Exchange”) all
of their shares of MoqiZone Cayman for Series B Preferred Shares of the Company
(the “Series B
Preferred Stock”) that, following consummation of a one-for-254.5 reverse
split of the outstanding Company Common Stock (the “Company Reverse
Split”) will automatically
convert into a number of shares of Company Common Stock representing 95%
of the outstanding Company Common Stock at the time of such
conversion;
WHEREAS,
the parties hereto are entering into this Agreement pursuant to Section 5.15 of
the Exchange Agreement which provides, in part, that on the Closing Date, those
MoqiZone Cayman Shareholders who are not Management Shareholders and the Company
Principal Stockholder will enter into a voting agreement with the Management
Shareholders, pursuant to which each MoqiZone Cayman Shareholder who is not a
Management Shareholder and the Company Principal Stockholder shall agree that
for so long as such person(s) own of record any shares of Series B Preferred
Stock or Company Common Stock (each defined below), they will vote such shares
at any regular or special meeting of Company stockholders or in connection with
any written consents required of Company stockholders in the same manner as
those Management Shareholders owning a majority of all Company voting securities
held by the Management Shareholders as a group (the “Majority Management
Shareholders”) vote their Existing Shares;
WHEREAS,
as of the date hereof, each of the Shareholders is the record holder and
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) of
such number of shares of the outstanding common stock, $0.0001 par value, of the
Company (the “Company
Common Stock”), shares of Series B Preferred Stock of the Company (the
“Company Series B
Preferred Stock”) and/or the shares of Company Common Stock issuable upon
exercise of the Company Series B Preferred Stock (the “Conversion Shares”),
each as is indicated on the signature page of this Agreement (collectively, the
“Existing
Shares”); and
WHEREAS,
as an inducement and a condition to the willingness of MoqiZone Cayman and
MobiZone Hong Kong to enter into the Exchange Agreement, MoqiZone Cayman and
MobiZone Hong Kong desire the Shareholders to agree, and the Shareholders are
willing to agree, to vote their Existing Shares at any regular or special
meeting of Company stockholders or in connection with any written consents
required of Company stockholders in the same manner as the Management
Shareholders as provided herein.
NOW,
THEREFORE, in consideration of the foregoing, and the respective
representations, warranties, covenants, agreements and conditions contained
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Agreement to Vote Existing
Shares. During the term hereof, at every meeting of the
shareholders of the Company called with respect to any of the following matters,
and at every adjournment thereof, and on every action or approval by written
consent of the shareholders of the Company with respect to any of the following
matters, the Shareholders, in his, her or its capacity as such, shall appear, or
otherwise cause his, her or its Existing Shares to be counted as present for
purposes of determining a quorum, and vote, or cause to be voted, the Existing
Shares in the same manner as those Management Shareholders owning a majority of
all Company voting securities held by the Management Shareholders as a group
vote their Existing Shares, at any such meeting of shareholders or in such
consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing or, at the such
Shareholder’s request, to permit a Management Shareholder to vote such Existing
Shares directly. The voting obligations set forth in this Section 1
will be binding upon any transferee of such Existing Shares in a private
transaction, but will terminate as to any shares of Company Common Stock that
are publicly sold pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Act”), or in
connection with a sale under Rule 144, promulgated under the Act by a MoqiZone
Cayman Shareholder who is not a Management Shareholder or the Trestle
Stockholder or their transferees.
2. Irrevocable
Proxy. By execution of this Agreement, each Shareholder does
hereby appoint and constitute [ ], until the Expiration Date (as
defined in Section 5 hereof), with full power of substitution and
resubstitution, as Shareholder’s true and lawful attorney and irrevocable proxy,
to the full extent of the undersigned’s rights with respect to the Existing
Shares, to vote each of such Existing Shares in accordance with Section 1
hereof. Shareholder intends this proxy to be irrevocable and coupled
with an interest hereafter until the Expiration Date, and hereby revokes any
proxy previously granted by Shareholder with respect to the Existing
Shares.
3. Representations and
Warranties of the Shareholder. Each of the Shareholders hereby
severally (and not jointly and severally) represent,
warrant and covenants as follows:
3.1 Authorization. Shareholder
has full power, corporate or otherwise, and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by or on behalf of Shareholder
and constitutes a legal, valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms. The
Shareholder has not granted any proxies relating to, transferred any interests
in or otherwise granted any rights with respect to, the Existing
Shares.
3.2 No Conflict, Violation;
Consents.
(a) The
execution and delivery of this Agreement by Shareholder do not, and the
performance by Shareholder of the obligations under this Agreement and the
compliance by Shareholder with any provisions hereof does not and will not,
(i) conflict with or violate any law, statute, rule, regulation, order,
writ, judgment or decree applicable to Shareholder or the Existing Shares,
(ii) conflict with or violate Shareholder’s charter, bylaws, partnership
agreement or other organizational documents, if applicable, or (iii) 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 others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Existing Shares pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Shareholder is a party or
by which Shareholder or the Existing Shares are bound.
(b) The
execution and delivery of this Agreement by Shareholder do not, and the
performance of this Agreement by Shareholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority by Shareholder except for applicable
requirements, if any, of the Exchange Act, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, could not prevent or delay the performance by
Shareholder of his, her or its obligations under this Agreement in any material
respect.
3.3 Ownership of
Shares. Shareholder: (a) is the beneficial owner of the
Existing Shares, which as of the date hereof are, and at all times up until the
Expiration Date will be, free and clear of any and all liens, claims, options,
charges, proxies or voting restrictions or other encumbrances (except such
encumbrances, proxies and voting restrictions as are created in this Agreement);
and (b) does not beneficially own any shares of capital stock of the
Company other than the Existing Shares.
4. Additional
Documents. Shareholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the opinion of
MoqiZone Cayman, to carry out the intent of the Agreement.
5. Termination. This
Agreement shall terminate and shall have no further force or effect as of
[ ] (the “Expiration
Date”).
6. Miscellaneous.
6.1 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions of this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by law, the parties
hereto waive any provision of law which renders any such provision prohibited or
unenforceable in any respect.
6.2 Binding Effect and
Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but, except as otherwise
specifically provided herein, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either party
without the prior written consent of the other.
6.3 Amendment and
Modifications. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
6.4 Specific Performance;
Injunctive Relief. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof or was otherwise
breached. It is accordingly agreed that the parties shall be entitled
to specific relief hereunder, including, without limitation, an injunction or
injunctions to prevent and enjoin breaches of the provisions of this Agreement
and to enforce specifically the terms and provisions hereof, in any state or
federal court in the State of New York, in addition to any other remedy to which
they may be entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to any such remedy are hereby
waived.
6.5 Notices. All
notices, communications and deliveries under this Agreement will be made in
writing signed by or on behalf of the party making the same, will specify the
Section under this Agreement pursuant to which it is given or being made,
and will be delivered personally or by facsimile or other electronic
transmission or sent by registered or certified mail (return receipt requested)
or by next day courier (with evidence of delivery and postage and other fees
prepaid) at each party’s address set forth in the Exchange
Agreement.
6.6 Governing Law; Jurisdiction
and Venue. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York without regard to
its rules of conflict of laws. The parties hereto hereby irrevocably
and unconditionally consent to and submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America
located in such state (the “New York Courts”) for
any litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agree not to commence any litigation relating thereto
except in such courts), waive any objection to the laying of venue of any such
litigation in the New York Courts and agree not to plead or claim in any New
York Court that such litigation brought therein has been brought in any
inconvenient forum.
6.7 Entire Agreement.
This Agreement contains the entire understanding of the parties in respect of
the subject matter hereof, and supersedes all prior negotiations and
understandings between the parties with respect to such subject
matter.
6.8 Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which will be
deemed an original, and it will not be necessary in making proof of this
Agreement or the terms of this Agreement to produce or account for more than one
(1) of such counterparts. Facsimile or PDF signatures shall have the
same effect as original signatures.
6.9 Effect of Headings.
The section headings herein are for convenience only and shall not affect the
construction of interpretation of this Agreement.
(Remainder
of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed on the date first above
written.
SHAREHOLDER:
By:_______________________________________
Name:
Title:
Shareholder’s
Address for Notice:
________________________________
________________________________
________________________________
Shares of
Company Common Stock
beneficially
owned: _______________
Shares of
Series B Preferred Stock
beneficially
owned: _______________
MANAGEMENT
SHAREHOLDERS:
______________________________________
XXXXXXXX XXXXXX
