EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), is made and entered into as of April
16, 2003, by and among YaYa, LLC ("YaYa"), a Delaware limited liability company,
American Vantage Companies, a Nevada corporation (the "Company"), and Xxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx"), an individual, with reference to the following facts:
A. YaYa is a stockholder of the Company.
C. YaYa acquired 824,811 shares of the Company's common stock, par value $0.01
("Company Common Stock"), pursuant to the terms and conditions of that certain
Asset Purchase Agreement, by and among YaYa, the Company, and YaYa Media, Inc, a
Delaware corporation and wholly owned subsidiary of the Company.
D. The parties desire to enter into this Agreement to memorialize their
agreements regarding the voting of their shares of Company Common Stock in
certain situations as further described herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the agreements
and covenants contained herein and other valuable consideration, the parties
hereto agree as follows:
16. DEFINITIONS
16.1 "Additional Shares" has the meaning ascribed to it in
Section 2.3.
16.2 "Agreement" has the meaning ascribed to it in the
preamble.
16.3 "Board of Directors" means the Company's board of
directors.
16.4 "Company" has the meaning ascribed to it in the recitals.
16.5 "Company Common Stock" has the meaning ascribed to it in
the recitals.
16.6 "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
16.7 "Merger" means the completion of any transaction, as a
result of which (a) the Company has merged or consolidated with or into any
other Person other than an affiliate of the Company, Xxxxxxxxx or any
Shareholder, and (b) the stockholders of the Company as of immediately prior to
the consummation of such transaction represent, in the aggregate, less than
fifty percent (50%) of the total voting power of the resulting Person
immediately after the consummation of the transaction.
16.8 "Person" includes any individual, corporation,
partnership, joint venture, limited liability company, limited liability
partnership, association, trust or other entity or organization, whether or not
a legal entity and whether foreign or domestic, or any governmental body.
16.9 "Publicly Traded Value" means, for each share of Company
Common Stock that is listed on a national securities exchange or quoted on the
Nasdaq Stock Market or
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the Nasdaq SmallCap Market, the closing price for such share of Company Common
Stock, as reported in the Wall Street Journal.
16.10 "Shareholders" or "Shareholder" means, YaYa and each
other Person that becomes a party to this Agreement in accordance with Section
3.3.
16.11 "Stock Event" means (i) the issuance of shares of
Company Common Stock in connection with a dividend on, a stock split of, or a
combination of shares of, then issued and outstanding shares of Company Common
Stock, or (ii) an adjustment to the number of shares of then outstanding Company
Common Stock as a result of any merger, consolidation, reorganization,
recapitalization, reincorporation, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other transaction not involving the receipt of
consideration by the Company.
16.12 "Xxxxxxxxx" has the meaning ascribed to it in the
preamble.
16.13 "Vote its Shares" means, with respect to any Person, to
(i) vote, or to cause to be voted, all of the shares of Company Common Stock
beneficially owned by such Person, to the extent that such shares of Company
Common Stock carry the right to vote thereon, at all annual and special meetings
of the Company's stockholders, however called, or any postponements or
continuations thereof and (ii) execute, or cause to be executed, with respect to
all of the shares of Company Common Stock beneficially owned by such Person, all
written consents of the Company's stockholders in lieu of any annual or special
meeting of the Company's stockholders.
16.14 "YaYa" has the meaning ascribed to it in the preamble.
17. AGREEMENT TO VOTE.
17.1 VOTING AGREEMENT. Until the termination of this Agreement
in accordance with its terms, each Shareholder hereby irrevocably and
unconditionally agrees to Vote its Shares as directed by the Board of Directors
(or any committee thereof formed for the purpose of giving such direction to the
Shareholders), subject to the following restrictions:
(a) YaYa shall only be required to Vote its Shares as so
directed in favor of the election of members of the Board of Directors at any
annual or special meeting of the Company's stockholders, however called, or any
postponements or continuations, or pursuant to any written consent of the
stockholders in lieu thereof, so long as after such election (assuming the
election of all nominees that the Board of Directors directs YaYa to elect) (i)
one individual designated by YaYa becomes, or continues to be, a member of the
Board of Directors, for so long as the Board of Directors is comprised of at
least five (5), but no more than seven (7) individuals, and (ii) two individuals
designated by YaYa become, or continues to be, members of the Board of
Directors, for so long as the Board of Directors is comprised of at least eight
(8) individuals.
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(b) No Shareholder shall be required to Vote its Shares as
directed by the Board of Directors (or any committee thereof formed for the
purpose of giving such direction to the Shareholders) in any action related to:
(i) Such Shareholder's sale of its shares of Company Common
Stock in a tender offer for shares of Company Common Stock initiated by any
Person other than YaYa or an affiliate of YaYa, which is subject to Section
14(d)(1) of the Exchange Act and the rules and regulations promulgated
thereunder;
(ii) Such Shareholder's sale of its shares of Company Common
Stock in a "Rule 13e-3 transaction," as that term is defined in Rule 13e-3
promulgated under the Exchange Act; or
(iii) a Merger.
17.2 GRANTING OF PROXY. In furtherance of the terms and
provisions of this Agreement, each Shareholder hereby grants an irrevocable
proxy, coupled with an interest, until the termination of this Agreement in
accordance with Section 3.1, to Xxxxxxxxx, for the sole purpose to Vote its
Shares in accordance with the provisions of Section 2.1 above. Each Shareholder
hereby ratifies and approves of each and every action taken by Xxxxxxxxx
pursuant to the foregoing proxy. Notwithstanding the foregoing, if requested by
Xxxxxxxxx, each Shareholder will execute and deliver applicable proxy material
in furtherance of the provisions of this Agreement. Notwithstanding anything
contrary in this Agreement, if for any reason the proxy granted pursuant to this
Section 2.2 is deemed unenforceable, it shall not affect the enforceability of
Section 2.1 above.
17.3 ADDITIONAL SHARES. If, after the date hereof, any
Shareholder acquires beneficial or record ownership of any additional shares of
Company Common Stock (any such shares, "Additional Shares"), including, without
limitation, upon exercise of any option, warrant or right to acquire shares of
Company Common Stock or through any Stock Event, the provisions of this
Agreement applicable to the shares of Company Common Stock now held by the
Shareholders shall thereafter be applicable to such Additional Shares as if such
Additional Shares had been held by the Shareholders as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by any Shareholder of beneficial ownership of such Additional
Shares.
18. TERMINATION AND AMENDMENT OF AGREEMENT; ADMISSION OF
ADDITIONAL MEMBERS.
18.1 GENERAL. This Agreement shall terminate upon the first to
occur of the following events:
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(a) The written agreement of Xxxxxxxxx and those parties who
then hold at least 50% of the shares of Company Common Stock originally held by
YaYa (or issued pursuant to such shares as a result of a Stock Event), which are
then subject to this Agreement;
(b) The first day on which the Publicly Traded Value of a
share of Company Common Stock is in excess of $7.50 (subject to adjustment in
the event of a Stock Event after the date of this Agreement) for 20 consecutive
trading days immediately preceding such date; and
(c) April 16, 2010.
18.2 AMENDMENT AND MODIFICATION. This Agreement may be amended
or modified only with the written consent of Xxxxxxxxx and those parties who
then hold at least 50% of the shares of Company Common Stock originally held by
YaYa (or issued pursuant to such shares as a result of a Stock Event), which are
then subject to this Agreement, expressly setting forth the amendments or
modifications.
18.3 AGREEMENT OF PARTIES TO ADMIT ADDITIONAL SHAREHOLDERS.
Each party to this Agreement, by its execution hereof, hereby (i) agrees that it
shall cause any Person to whom any Shareholder transfers any shares of Company
Common Stock to execute and deliver a counterpart signature page to this
Agreement in a form substantially similar to EXHIBIT A, and upon such execution
and delivery, such Person shall become a party to this Agreement and thereby
agree to be bound by and to observe all of the terms and conditions contained
herein, and (ii) consents to the admission of such additional Persons as parties
to this Agreement in accordance with clause (i) of this Agreement.
19. MISCELLANEOUS.
19.1 ENTIRE AGREEMENT. This Agreement, including the exhibits
hereto and the agreements expressly referred to herein, constitutes the entire
understanding between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written. There are no warranties, representations or other
agreements between the parties, in connection with the subject matter hereof,
except as specifically set forth herein. No supplement, modification, waiver or
termination of this Agreement shall be binding unless made in writing and in
compliance with the provisions of Section 4.2.
19.2 WAIVERS. No term, condition or provision of this
Agreement may be waived except by an express written instrument to such effect
signed by the party to whom the benefit of such term, condition or provision
runs. No such waiver of any term, condition or provision of this Agreement shall
be deemed a waiver of any other term, condition or provision, irrespective of
similarity, or shall constitute a continuing waiver of the same term, condition
or provision, unless otherwise expressly provided. No failure or delay on the
part of any party in exercising any right, power or privilege under any term,
condition or provision of this Agreement
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shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any other right, power or
privilege.
19.3 SEVERABILITY. In the event any one or more of the terms,
conditions or provisions contained in this Agreement should be found in a final
award or judgment rendered by any court or arbitrator or panel of arbitrators of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining terms, conditions and
provisions contained herein shall not in any way be affected or impaired
thereby, and this Agreement shall be interpreted and construed as if such term,
condition or provision, to the extent the same shall have been held invalid,
illegal, or unenforceable, had never been contained herein, provided that such
interpretation and construction is consistent with the intent of the parties as
expressed in this Agreement.
19.4 HEADINGS, DEFINITIONS. The headings of the Sections
contained in this Agreement are included herein for reference purposes only,
solely for the convenience of the parties hereto, and shall not in any way be
deemed to affect the meaning, interpretation or applicability of this Agreement
or any term, condition or provision hereof. All references to Sections,
Articles, Schedules or Exhibits contained herein mean Sections, Articles,
Schedules or Exhibits of this Agreement unless otherwise stated. All capitalized
terms defined herein are equally applicable to both the singular and plural
forms of such terms.
19.5 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without reference
to the choice of law principles thereof.
19.6 ATTORNEYS' FEES. In the event that any party to this
Agreement shall commence any suit, action, arbitration or other proceeding to
interpret this Agreement, or determine or enforce any right or obligation
created hereby, including but not limited to any action for rescission of this
Agreement or for a determination that this Agreement is void or ineffective ab
initio, the prevailing party in such action shall recover such party's costs and
expenses incurred in connection therewith, including attorney's fees and costs
of appeal, if any. Any court, arbitrator or panel of arbitrators shall, in
entering any judgment or making any award in any such suit, action, arbitration
or other proceeding, in addition to any and all other relief awarded to such
prevailing party, include in such judgment or award such party's costs and
expenses as provided in this Section 41.6.
19.7 EXECUTION AND COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall
constitute only one instrument. Any one of such counterparts shall be sufficient
for the purpose of proving the existence and terms of this Agreement, and no
party shall be required to produce an original or all of such counterparts in
making such proof.
19.8 COVENANT OF FURTHER ASSURANCES. All parties to this
Agreement shall, upon request, perform any and all acts and execute and deliver
any and all certificates,
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instruments and other documents that may be necessary or appropriate to carry
out any of the terms, conditions and provisions hereof or to carry out the
intent of this Agreement.
19.9 REMEDIES CUMULATIVE. Each and all of the several rights
and remedies provided for in this Agreement shall be construed as being
cumulative and no one of them shall be deemed to be exclusive of the others or
of any right or remedy allowed by law or equity, and pursuit of any one remedy
shall not be deemed to be an election of such remedy, or a waiver of any other
remedy.
19.10 BINDING EFFECT. This Agreement shall inure to the
benefit of and be binding upon all of the parties hereto and their respective
executors, administrators, successors and permitted assigns.
19.11 COMPLIANCE WITH LAWS. Nothing contained in this
Agreement shall be construed to require the commission of any act contrary to
law, and whenever there is a conflict between any term, condition or provision
of this Agreement and any present or future statute, law, ordinance or
regulation contrary to which the parties have no legal right to contract, the
latter shall prevail, but in such event the term, condition or provision of this
Agreement affected shall be curtailed and limited only to the extent necessary
to bring it within the requirement of the law, provided that such construction
is consistent with the intent of the parties as expressed in this Agreement.
19.12 GENDER. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number, shall be deemed to
include the others whenever the context so indicates.
19.13 NO THIRD PARTY BENEFIT. Nothing contained in this
Agreement shall be deemed to confer any right or benefit on any Person who is
not a party to this Agreement.
19.14 CONSTRUCTION; REPRESENTATION BY COUNSEL. The parties
hereto represent that they have been represented and advised by counsel in
connection with the negotiation and preparation of this Agreement, and this
Agreement shall be deemed to have been drafted jointly by the parties,
notwithstanding that one party or the other may have performed the actual
drafting hereof. This Agreement shall be construed and interpreted in accordance
with the plain meaning of its language, and not for or against either party, and
as a whole, giving effect to all of the terms, conditions and provisions hereof.
19.15 INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties
hereby agree and acknowledge that a breach of any material term, condition or
provision of this Agreement would result in severe and irreparable injury to the
other party, which injury could not be adequately compensated by an award of
money damages, and the parties therefore agree and acknowledge that they shall
be entitled to injunctive relief in any court of competent jurisdiction in the
event of any breach of any material term, condition or provision of this
Agreement, or to enjoin or prevent such a breach, including without limitation
an action for specific performance hereof,
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and the parties hereby irrevocably consent to the issuance of any such
injunction. The parties further agree that no bond or surety shall be required
in connection therewith.
19.16 JURISDICTION AND VENUE. The federal and state courts
located within Las Vegas, Nevada, shall have exclusive jurisdiction and venue
with respect to all actions, claims and proceedings arising out of or relating
to this Agreement, or its enforcement. The parties to this Agreement hereby
waive any right to commence any claim, action or proceeding in any other venue
or jurisdiction, except as set forth in this paragraph, or to seek dismissal of
any action, claim or proceeding in Las Vegas, Nevada, on the basis of improper
venue or forum non conveniens. Moreover, the parties hereby consent to the
personal jurisdiction of the courts of Las Vegas, Nevada.
19.17 LEGEND. Each stock certificate representing Shares when
issued shall have conspicuously thereon the following legend:
"THE SALE, ASSIGNMENT, TRANSFER, CONVEYANCE, EXCHANGE,
MORTGAGE, GRANT OF A SECURITY INTEREST IN, GIFT,
ENCUMBRANCE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SHARES REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST THEREIN IS RESTRICTED BY AND SUBJECT TO A
VOTING AGREEMENT DATED APRIL 16, 2003. A COPY OF SAID
AGREEMENT MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF
THE CORPORATION."
A copy of this Agreement shall be delivered to the Secretary of the Company and
shall be shown to any Person making any inquiry with respect thereto.
19.18 NOTICES. All notices and communications to be given or
otherwise made to YaYa or any Xxxxxxxxx Party shall be deemed to be sufficient
if contained in a written instrument delivered in person or by facsimile or duly
sent by first class registered or certified mail, return receipt requested,
postage prepaid, or by overnight courier, or addressed to such party at the
following address:
If to YaYa: If to Xxxxxxxxx:
YaYa, LLC American Vantage Companies
0000 0xx Xxxxxx, Xxxxx 000 c/o Xxxxx X. Xxx, Esq.
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Telephone No.: (000) 000-0000 Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000 Telephone No: (000) 000-0000
Attn: Xx. Xxxxxxx X. Xxxxx Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
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If to the Company:
American Vantage Companies
c/o Xxxxx X. Xxx, Esq.
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telephone No: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxxxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other party hereto in writing in accordance herewith. Any such
notice or communication shall be deemed to have been delivered and received: (a)
in the case of personal delivery or delivery by facsimile, on the date of such
delivery, (b) in the case of nationally-recognized overnight courier, on the
next business day after the date when sent and (c) in the case of mailing, on
the third business day following that on which the piece of mail containing such
communications is posted. As used in this Section, "business day" shall mean any
day other than a day on which banking institutions in the State of California
are legally closed for business.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date, month and year first above written. YAYA, LLC, a Delaware limited
liability company
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Secretary
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/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX, an individual
AMERICAN VANTAGE COMPANIES,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: President and Chief Executive Officer
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EXHIBIT A
COUNTERPART SIGNATURE PAGE
The undersigned, by execution of this Counterpart Signature Page, hereby agrees
and covenants as follows:
1.That the undersigned has received a copy of the Voting Agreement, dated as of
______________, 2003 (the "Agreement");
2.That the undersigned has thoroughly read and reviewed the Agreement, and is
familiar with all of the terms and conditions thereof;
3.That the undersigned hereby accepts, enters into, and agrees to be bound by,
the Agreement and all of its terms and conditions, and that all shares of
Company Common Stock owned by the undersigned are owned subject to all of such
terms and conditions, and further agrees that any and all certificates
representing Shares owned by the undersigned will bear the legend referenced in
Section 4.17 of the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date, month and year first above written.
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(Signature)
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(Print Name)
