Exhibit 99.3
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VOTING AGREEMENT
VOTING AGREEMENT made as of the 13th day of October, 2000 (the "Agreement"),
between XxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "Shareholder"), in
its capacity as a shareholder of Real Goods Trading Corporation, a California
corporation (the "Company"), and Gaiam, Inc., a Colorado corporation ("Gaiam").
R E C I T A L S
Concurrently with the execution of this Agreement, Gaiam and the Company
have entered into a Merger Agreement dated as of the date of this Agreement (the
"Merger Agreement") pursuant to which a subsidiary of Gaiam to be formed will
merge with and into the Company (the "Merger"). The transactions contemplated by
the Merger Agreement are collectively referred to as the "Transactions."
In order to induce Gaiam to enter into the Merger Agreement with the
Company, Gaiam has requested, and the Shareholder has agreed, that the
Shareholder enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
Voting Agreement
The Shareholder hereby agrees with Gaiam as follows:
Section 1.1. Voting of Shares. (a) At any meeting of the shareholders of the
Company, however called, at every adjournment of any such meeting, and in
connection with any written consent of the shareholders of the Company, the
Shareholder will cause all of its Shares (as hereinafter defined) to be voted,
during the term of this Agreement, in favor of (i) the Merger and the approval
and adoption of the Merger Agreement, and (ii) all other Transactions as to
which shareholders of the Company are called upon to vote.
For purposes of this Agreement, (i) "Person" shall mean an individual,
partnership, limited liability company, corporation, joint stock company, trust,
estate, joint venture, association or unincorporated organization, or any other
entity or organization, including a government or political subdivision or any
agency or instrumentality thereof, and (ii) "Shares" shall mean any and all
shares of capital stock of the Company which are entitled to vote in any
election of the board of directors of the Company now owned and/or subsequently
acquired by the Shareholder through purchase, gift, stock splits, stock
dividends and the exercise of stock options.
(b) The Shareholder agrees that, during the term of this Agreement,
the Shareholder shall attend or otherwise participate in (in person or by proxy)
all duly called shareholder meetings and any adjournments of such meetings and
in all actions by written consent of shareholders in which the Merger or any
Transaction is being considered.
Section 1.2. No Proxies or Encumbrances. The Shareholder shall not (i)
grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any of the Shares in a manner which
would be inconsistent with the provisions of this Agreement, (ii) prior to
closing of the Merger, sell, assign, transfer, encumber or otherwise dispose of
or enter into any contract, option or other arrangement or understanding with
respect to, the direct or indirect sale, assignment, transfer, encumbrance or
other disposition of any of its Shares or any interest therein, except for
Permitted Transfers to Permitted Transferees (as such terms are defined below)
and except for the outstanding option granted to Xxxxx.xxx, Inc. to acquire such
Shares (the "Xxxxx.xxx Option"), or (iii) other than agreements with Gaiam, seek
or solicit any of the foregoing. For purposes of this Agreement, (i) "Permitted
Transferee" means any Person controlled, directly or indirectly, by the
Shareholder and (ii) each transfer to a Permitted Transferee shall constitute a
"Permitted Transfer" only if it is a:
(a) transfer to a Permitted Transferee and, in the case of a Permitted
Transferee, transfer to the Shareholder or to other Permitted Transferees of
the Shareholder; provided that, any such Permitted Transferee shall enter
into a supplement to this Agreement, consented to in writing by Gaiam,
agreeing to be bound by the terms of this Agreement; or
(b) pledge to a bank or securities firm of Shareholder's Shares
securing a bona fide loan; provided that the pledge agreement with the
pledgee shall provide that the Shareholder shall continue at all times to
have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to such pledged Shares; and provided
further that any pledge agreement that Shareholder enters into shall provide
that the pledgee shall give written notice to Gaiam at least 10 days prior
to the date such pledgee takes any action to exercise any remedies with
respect to such Shares;
provided that no such transfer is in violation of applicable federal or state
securities laws.
ARTICLE 2
Representations and Warranties
The Shareholder represents and warrants to Gaiam as follows:
Section 2.1. Valid Title. The Shareholder is the true and lawful owner of
100% of the Shares set forth next on the signature page to this Agreement, with
full power to vote and dispose of such Shares, and there are no restrictions on
the Shareholder's voting rights or rights of disposition pertaining to such
Shares which would be inconsistent with this Agreement or interfere with
Shareholder's performance of this Agreement (other than the Xxxxx.xxx Option).
Section 2.2. Non-Contravention. The execution, delivery and performance by
the Shareholder of this Agreement and the consummation of the transactions
contemplated hereby, do not and will not contravene or conflict with the
Shareholder's certificate of incorporation or by-laws, or contravene or
constitute a default under or give rise to a right of termination, cancellation
or acceleration of any material right or obligation of the Shareholder or to a
loss of any material benefit of the Shareholder under any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument binding on the Shareholder.
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Section 2.3. Authorization. The execution, delivery and performance by the
Shareholder of this Agreement are within the Shareholder's powers and have been
duly authorized by all necessary corporate actions.
Section 2.4. Binding Effect. This Agreement constitutes a valid and binding
agreement of the Shareholder, enforceable against the Shareholder in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
Section 2.5. No Other Shares. The number of Shares set forth on the
signature page to this Agreement are the only Shares owned by the Shareholder.
ARTICLE 3
Miscellaneous
Section 3.1. Notices. All notices, requests and other communications to any
party hereunder shall be deemed to have been duly given when delivered in
person, by facsimile or by overnight courier to such party at its address set
forth on the signature pages hereto.
Section 3.2. Amendments; No Waivers. (a) Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by each of the parties hereto, or in the
case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 3.3. Termination. This Agreement shall automatically terminate upon
termination of the Merger Agreement in accordance with its terms.
Section 3.4. Severability. If any provision of this Agreement or the
application of such provision to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement or under
any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
Section 3.5. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof.
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Section 3.6. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that, except as permitted by Section
1.2, no party may assign, delegate or otherwise transfer all or any of its
rights or obligations under this Agreement without the consent of the other
party hereto.
Section 3.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party shall have received
counterparts (or signature pages) hereof signed by all of the other parties.
Section 3.8. Governing Law; Specific Performance. The terms of this
Agreement shall be governed by and construed in accordance with the laws of the
State of California (without regard to principles of conflict of laws). Each of
the parties acknowledges and agrees that the parties' respective remedies at law
for a breach or threatened breach of any of the provisions of this Agreement
would be inadequate and, in recognition of that fact, each agrees that, in the
event of a breach or threatened breach by any party of the provisions of this
Agreement, in addition to any remedies at law, each party, without posting any
bond, shall be entitled to seek equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
Section 3.9. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 3.10. Certain Events. The Shareholder agrees that this Agreement and
the obligations hereunder shall attach to its Shares and shall be binding upon
any Person to which legal or beneficial ownership of such shares shall pass,
whether by operation of law or otherwise.
Section 3.11. No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked prior to termination of this
Agreement in accordance with Section 3.3, except by written consent of Gaiam.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be duly executed by their respective authorized
officers or representatives, as of the day and year first above written.
Gaiam, Inc.
By: /s/ Xxxxx Xxxxxx
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Its: President
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Address: 000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
Shareholder:
XxxxxXxxxxx.xxx, Inc.
By: /s/ Xxxx Xxxxxx
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Its: President
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Number of Shares Owned: 800,000
Address: 0000 X. 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Fax: (303) ________
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