VOTING AGREEMENT
This
VOTING AGREEMENT (the “Agreement”),
dated
as of February 15, 2007, is entered into by and between NexCen Brands,
Inc.,
a
Delaware corporation (the “Company”),
Xxxxxx X. Xxxxxxx,
solely
in his capacity as Stockholders’ Representative on behalf of himself and Xxxxxx
X. Xxxxxxx and Xxxxxxx Xxxxxxxx.
WHEREAS,
the Company, Blass Acquisition Corp., a Delaware corporation (“Jeans”),
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxx (collectively, the
“Stockholders”),
Xxxx
Xxxxx Holding Co., Inc., a Delaware corporation (“Holding”),
Xxxx
Xxxxx International LLC, a Delaware limited liability company, and Xxxx Xxxxx
Licensing Co., Inc., a New York corporation, have entered into that certain
Stock Purchase Agreement, dated as of December 19, 2006 (the “Purchase
Agreement”),
pursuant to which the Stockholders have agreed to sell 100% of the issued and
outstanding shares of capital stock of Holding to Jeans;
WHEREAS,
pursuant to the terms of the Purchase Agreement, at the Closing, the
Stockholders (1) will be issued shares of common stock, par value $0.01 per
share, of the Company (“Company
Shares”)
equal
in number to the remainder of (x) the quotient obtained by dividing $15,540,000
by the Signing Date Reference Price less (y) the Stock Escrow Amount, (2)
subject to the terms of the Purchase Agreement, will receive the Company Shares
or cash, as provided for in the Purchase Agreement, representing the Stock
Escrow Amount upon release thereof pursuant to the terms of that certain Escrow
Agreement entered into by and among the Company, Jeans and the Stockholders,
dated as of the date hereof, and (3) may following the Closing receive an
additional number of Company Shares in accordance with Section 2.5 of the
Purchase Agreement (all such Company Shares are referred to as the “Consideration
Shares”);
and
WHEREAS,
on the terms and conditions set forth in the Purchase Agreement, the
Stockholders desire and agree to be bound by the restrictions on transfer,
and
to vote all Company Shares issued to them pursuant to the terms of the Purchase
Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the premises contained herein and for other
good
and valuable consideration, the receipt, sufficiency and adequacy of which
is
hereby acknowledged, the parties hereto agree as follows (with all capitalized
terms used and not otherwise defined herein having their respective meanings
as
set forth in the Purchase Agreement):
1. Agreement
to Vote Shares; Irrevocable Proxy.
Stockholders hereby appoint such person as the Board of Directors of the Company
may designate from time to time (the “Proxy
Holder”)
to
serve as its proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent during the term of this
Agreement with respect to the Consideration Shares (including any Company Shares
included in the Escrow Amount) and any New Shares (as defined below).
Stockholders shall take such further action or execute such other instruments
as
may be necessary to effectuate the intent of this proxy and power of attorney.
The proxy and power of attorney granted hereunder by Stockholders shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke any and all prior proxies granted by Stockholder with respect to the
matters contemplated hereunder. The power of attorney granted by Stockholders
herein is a durable power of attorney and shall survive the dissolution,
bankruptcy, death or incapacity of Stockholders. The proxy and power of attorney
granted hereunder shall terminate upon the termination of this Agreement. All
parties hereto acknowledge and agree that the Proxy Holder shall, and the
Stockholders hereby irrevocably consents to, vote all Shares in favor of matters
recommended or approved by the Board of Directors of the Company in respect
of
all matters for which stockholder approval is sought or required, provided,
however, that each Shareholder has received no less than [5] days prior written
notice of the matter to be voted upon.. Notwithstanding anything to the
contrary, the provisions of this Section 1 shall not apply with respect to
any
Company Shares that have been validly Transferred (as hereinafter defined)
by
Stockholder (or its permitted transferees or successors in interest) to a third
party in compliance with Section 4
hereof.
2. No
Voting Trusts or Other Arrangements.
Each
Stockholder agrees that he or it, as applicable, will not, and will not permit
any entity under his or its control to grant any proxies with respect to the
Consideration Shares or subject any of the Consideration
Shares
to
any arrangement with respect to the voting of the Consideration Shares other
than this Agreement.
3. Stockholder
Capacity.
Notwithstanding anything to the contrary set forth herein, each Stockholder
is
entering into this Agreement solely in such Stockholder’s capacity as the holder
of the Consideration Shares and New Shares (as defined below), as may become
applicable, and nothing in this Agreement shall prevent such Stockholder from
taking any action or omitting to take any action in such Stockholder’s capacity
as an officer or employee of the Company or any of its subsidiaries, in either
case as applicable or as may become applicable to such Stockholder.
4. Encumbrance.
(a) Each
Stockholder represents and warrants that (i) the Consideration Shares are free
and clear of all liens, claims, charges, security interests or other
encumbrances, other than those that may be created by the Purchase Agreement,
the Escrow Agreement and this Agreement, (ii) there are no options, warrants
or
other rights, agreements, arrangements or commitments of any character to which
Stockholder is a party relating to the pledge, disposition or voting of such
shares, and there are no voting trusts or voting agreements with respect to
the
such shares, other than this Agreement, (iii) Stockholder has full power and
authority to enter into, execute and deliver this Agreement and to perform
fully
Stockholder’s obligations hereunder and (iv) this Agreement constitutes the
legal, valid and binding obligation of Stockholder in accordance with its terms.
(b) New
Shares.
Stockholders agree that all Shares that Stockholders receive as a result of
any
stock splits, stock dividends or reclassifications of Consideration Shares
(all
such Shares collectively, “New
Shares”),
shall
be subject to the terms of this Agreement to the same extent as if they
constituted Consideration Shares as of the date hereof.
6. Specific
Performance.
Each
party hereto acknowledges that it will be impossible to measure in money the
damage to the other party if a party hereto fails to comply with any of the
obligations imposed by this Agreement, that every such obligation is material
and that, in the event of any such failure, the other party will not have an
adequate remedy at law or damages. Accordingly, each party hereto agrees that
injunctive relief or other equitable remedy, in addition to remedies at law
or
damages, is the appropriate remedy for any such failure and will not oppose
the
granting of such relief on the basis that the other party has an adequate remedy
at law. Each party hereto agrees that it will not seek, and agrees to waive
any
requirement for, the securing or posting of a bond in connection with any other
party’s seeking or obtaining such equitable relief.
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7. Entire
Agreement.
This
Agreement supersedes all prior agreements, written or oral, among the parties
hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended or supplemented, and no provisions hereof may
be
modified or waived, except by an instrument in writing signed by all the parties
hereto. No waiver of any provisions hereof by any party shall be deemed a waiver
of any other provision hereof by any such party, nor shall any such waiver
be
deemed a continuing waiver of any provision hereof by such party.
8. Notices.
All
notices hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by telecopy
or
like transmission or on the next business day when sent by Federal Express,
Express Mail or other reputable overnight courier service to the parties at
the
following addresses (or at such other address for a party as shall be specified
by like notice):
If
to the
Company or the Proxy Holder:
1330
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxx
Xxxxxxx
Fax: 000-000-0000
With
a
copy (which shall not constitute notice to the Company) to:
Xxxxxxxx
& Xxxxx LLP
000
00xx
Xxxxxx,
X.X.
Xxxxxxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxx, Esq.
Fax: 000-000-0000
If
to
Stockholders, to the address or telecopy number set forth for Stockholders
on
the signature page hereof.
9. Miscellaneous.
(a) This
Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of New York without reference to the
choice of law principles thereof. Each party hereto agrees that any action,
proceeding or claim it commences against any other party pursuant to this
Agreement shall be brought in either the courts of the State of New York,
sitting in New York County, or the courts of the United States for the Southern
District of New York. Each party hereby irrevocably submits to the jurisdiction
of the courts of the State of New York, sitting in New York County, and the
courts of the United States for the Southern District of New York. Each party
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court, any claim that any such suit, action
or
proceeding brought in such a court has been brought in an inconvenient forum
and
the right to object, with respect to any such suit, action or proceeding brought
in any such court, that such court does not have jurisdiction over such party.
In any such suit, action or proceeding, each party waives, to the fullest extent
it may effectively do so, personal service of any summons, complaint or other
process and agrees that the service thereof may be made by certified or
registered mail, addressed to such party at its address set forth in Section
8.
Each party agrees that a final nonappealable judgment in any such suit, action
or proceeding in such a court shall be conclusive and binding.
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(b) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(i)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY.
(c) In
the
event that any one or more of the provisions contained in this Agreement shall
be declared invalid, void or unenforceable, the remainder of the provisions
of
this Agreement shall remain in full force and effect, and such invalid, void
or
unenforceable provision shall be interpreted as closely as possible to the
manner in which it was written. The parties further agree to replace such
invalid, void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such invalid, void or unenforceable
provision.
(d) This
Agreement may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(e) This
Agreement shall terminate automatically upon the sale, transfer or other
disposition of all Company Shares held by the Stockholders to persons or
entities that are not Affiliates, in compliance with Section 4(b) hereof.
(f) Each
party hereto shall execute and deliver such additional documents as may be
necessary or desirable to effect the transactions contemplated by this
Agreement.
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(g) No
party
to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party hereto. Any
assignment contrary to the provisions of this Section 9(g) shall be null and
void.
(h) This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument when signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
[END
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[SIGNATURE
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Voting
Agreement as of the date first written above.
| NEXCEN BRANDS, INC., a Delaware corporation | ||
| |
|
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| By: | /s/ Xxxxxx X. X’ Xxxxx | |
|
Name:
Title:
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| /s/ Xxxxxx X. Xxxxxxx | |||
|
XXXXXX X. XXXXXXX |
| /s/ Xxxxxx X. Xxxxxxx | |||
|
XXXXXX X. XXXXXXX |
| /s/ Xxxxxxx Xxxxxxxx | |||
|
XXXXXXX XXXXXXXX |
