EXHIBIT 2
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:
1. DEFINITIONS
1.1 "Additional Shares" has the meaning ascribed to it in Section 2.3.
1.2 "Agreement" has the meaning ascribed to it in the preamble.
1.3 "Board of Directors" means the Company's board of directors.
1.4 "Company" has the meaning ascribed to it in the recitals.
1.5 "Company Common Stock" has the meaning ascribed to it in the
recitals.
1.6 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.7 "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.
1.8 "Person" includes any individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership,
association, trust or other entity or
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organization, whether or not a legal entity and whether foreign or
domestic, or any governmental body.
1.9 "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 the Nasdaq SmallCap Market, the closing
price for such share of Company Common Stock, as reported in the
Wall Street Journal.
1.10 "Shareholders" or "Shareholder" means, YaYa and each other Person
that becomes a party to this Agreement in accordance with Section
3.3.
1.11 "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.
1.12 "Xxxxxxxxx" has the meaning ascribed to it in the preamble.
1.13 "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.
1.14 "YaYa" has the meaning ascribed to it in the preamble.
2. AGREEMENT TO VOTE.
2.1 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
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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.
(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.
2.2 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 the 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.
2.3 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
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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.
3. TERMINATION AND AMENDMENT OF AGREEMENT; ADMISSION OF ADDITIONAL MEMBERS.
3.1 GENERAL. This Agreement shall terminate upon the first to occur of
the following events:
(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.
3.2 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.
3.3 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.
4. MISCELLANEOUS.
4.1 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
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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.
4.2 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 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.
4.3 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.
4.4 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.
4.5 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.
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4.6 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.
4.7 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.
4.8 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, 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.
4.9 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.
4.10 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.
4.11 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.
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4.12 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.
4.13 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.
4.14 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.
4.15 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, 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.
4.16 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.
4.17 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
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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.
4.18 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:
YaYa, LLC
0000 0xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxxxx X. Xxxxx
If to Xxxxxxxxx:
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
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:
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Name:
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Title:
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XXXXXX X. XXXXXXXXX, an individual
AMERICAN VANTAGE COMPANIES,
a Nevada corporation
By:
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Name:
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Title:
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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)
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