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EXHIBIT 2.3
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDED AND RESTATED VOTING AGREEMENT (this "Agreement") is
entered into as of May 19, 1999, by and between Xxxxxx X. Xxxx ("Xxxxxx Xxxx"),
Xxxxxx X. Xxxx and Xxxxxx Xxxxx, Trustees of the Xxxxxx Xxxx and Xxxxxx Xxxxx
Revocable Family Trust UTD April 18, 1991 (the "Trust"; Xxxxxx Xxxx and the
Trust hereinafter sometimes are referred to collectively as "Ades") and Xxxxx X.
Xxxx, Trustee of the Xxxx Family Trust UTA May 30, 1980 ("Shareholder").
RECITALS
A. The parties hereto previously entered into a Voting Agreement
dated as of May 13, 1999 (the "Original Agreement") setting forth certain
obligations regarding the voting of their respective shares.
B. In order to clarify certain obligations of the parties relating
to the election of certain directors to the Board of Intervisual Books, Inc.
(the "Company"), the parties hereto desire to amend and restate the Original
Agreement as set forth in this Agreement. The parties acknowledge that each of
the parties has received good and valuable consideration for the purposes of
entering into this Agreement and that this Agreement shall be binding and
enforceable upon each of them.
AGREEMENT
1. Voting of Shares by Shareholder. Subject to Ades voting Ades'
shares of Company common stock in accordance with paragraph 2 below and the
other agreements contained in paragraph 2 below, Shareholder agrees that at the
annual meeting of shareholders of the Company immediately following the
Effective Time of the Merger and at each successive annual meeting thereafter,
provided that Xxxxxx Xxxx is employed by Company at such time, Shareholder shall
cause a sufficient number of outstanding shares of Company's common stock that
are owned by Shareholder as of the record date fixed for such meeting to be
voted in such a manner as to elect Xxxxxx Xxxx and a "qualified person" to the
Company's Board of Directors. For purposes of this paragraph, a "qualified
person" shall mean an individual initially designated by Xxxxxx Xxxx and who (i)
posses the skills and business acumen reasonably necessary to be an outside
independent director of a public company, (ii) is mutually acceptable to Xxxxxx
Xxxx and the Company's Board of Directors and which such nominee shall not be
Xxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, a family member of Xxxxxx Xxxx,
Xxxxxx Xxxxxx or Xxxxxx Xxxxxxx or otherwise related to Xxxxxx Xxxx, Xxxxxx or
Xxxxxxx, and (iii) has not been involved in any legal proceedings requiring
disclosure under Item 401(f) of Regulation S-K or Instruction 4 of Item 103 of
Regulation S-K. Prior to selection as a "qualified person," each such nominee
shall agree in writing to resign from the Company's Board of Directors if so
requested mutually by Xxxxxx Xxxx and the other members of the Company's Board
of Directors.
2. Voting of Shares by Ades. Ades agrees that at the annual meeting
of shareholders of the Company immediately following the Effective Time of the
Merger, and at each successive annual meeting thereafter, provided that Xxxxxx
Xxxx is employed by Company at such time, Ades shall vote all outstanding shares
of Company's common stock that are owned by Ades as of the
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record date fixed for such meeting in favor of those persons recommended or
nominated for election by the Company's Board of Directors. In the event
cumulative voting for the election of directors occurs, Ades shall, as so
requested by Shareholder, either distribute all of Ades' votes equally between
Ades and the qualified person selected in accordance with paragraph 1 above or
equally among each nominee for director supported by the Company's Board of
Directors. As long as Xxxxxx Xxxx is a director, employee or consultant of the
Company, Ades agrees not to vote for or otherwise support in any manner any
nominees for the Company's Board of Directors other than those nominees selected
by the Company's Board of Directors.
3. Further Assurances. Shareholder and Ades shall perform such
further acts and execute such further documents and instruments as reasonably
may be required to carry out and give effect to the provisions of this
Agreement.
4. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a written agreement of all the parties to this
Agreement.
5. Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the State of California.
6. Invalidity of a Single Provision. The unenforceability or
invalidity of any provision of this Agreement shall not affect the validity or
enforceability of the remainder of this Agreement, nor shall the
unenforceability of a provision under the laws of any particular jurisdiction
affect its enforceability under the laws of other jurisdictions.
7. Headings and Execution in Counterparts. The headings and captions
contained in this Agreement are for convenience only and shall not control or
affect the meaning or construction of any provision of this Agreement. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall constitute a single
agreement.
8. Termination. The parties hereto agree that this Agreement shall
terminate upon the earlier of: (a) Xxxxxx Xxxx' cessation of employment from the
Company, (b) the closing a "liquidity event" as defined in Section 2 of that
Restricted Stock Agreement dated as of May 13, 1999 by and among the parties
hereto, the Company, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx, Xxxxxx Xxxxxx and Xxxxxx
Xxxxxxx, excluding a sale of all or substantially all of the assets of the
Company or liquidation, dissolution or winding up of the Company, (c) Ades'
beneficial ownership (calculated according to Rule 13d-3) of voting securities
of the Company falls below five percent (5%) of the Company's issued and
outstanding securities, or (d) Ades' beneficial ownership of voting securities
(excluding unexercised options) of the Company increases to the number that Ades
would be entitled to elect two directors to the Company's Board of Directors.
9. Amendment and Restatement. The parties hereto agree that the
Original Agreement is superseded and replaced in its entirety by this Agreement
and Original Agreement shall no longer have any force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
Shareholder:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Trustee of the Xxxx
Family Trust UTA May 30, 1980
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as Trustee of the Xxxxxx
Xxxx and Xxxxxx Xxxxx Revocable Family
Trust UTD April 18, 1991
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, as Trustee of the Xxxxxx
Xxxx and Xxxxxx Xxxxx Revocable Family
Trust UTD April 18, 1991
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