Exhibit 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is made and entered into as of this
28th day of October, 2004, by and among Sunningdale, Inc., a Delaware
corporation (the "Buyer"), each of the persons listed under the caption
"Stockholders" on the signature page hereof, such persons being all of the
stockholders ("Stockholders") of Advanced Aluminium Group, Ltd., a corporation
formed and organized under the laws of the United Kingdom ("Company"), and
Xxxxxxx Reverse Merger Fund, LLC, a limited liability company formed and
organized under the laws of the State of Delaware ("KRM Fund"). The Stockholders
shall be referred to herein collectively as the "Stockholders" and each,
individually, as the "Stockholder".
RECITALS
A. Buyer, KRM Fund, Company and the Stockholders are parties to a certain
Share Exchange Agreement dated as of September 22, 2004 ("Exchange Agreement").
B. The capitalized terms herein shall have the meaning set forth in the
Exchange Agreement.
C. KRM Fund owns a majority of the issued and outstanding shares of Buyer
Common Stock immediately preceding the Closing.
D. As a condition to and an inducement to Buyer's and KRM Fund's
willingness to enter into the Exchange Agreement, the Stockholders and Buyer
have agreed to enter into this Agreement as a condition to Closing.
E. Each of Stockholders and Buyer acknowledge that the agreements
contained in this Agreement are an integral part of the transactions
contemplated by the Exchange Agreement and that, without these agreements, Buyer
would not enter into the Exchange Agreement, and KRM Fund would not have
approved the Exchange Agreement and the transactions contemplated thereunder.
F. The parties hereto acknowledge and agree that the failure by Buyer and
Stockholders to satisfy, perform and comply with the Post-Closing Covenants
following the Closing will have a material adverse effect on Buyer and the
investment of KRM Fund in Buyer.
NOW THEREFORE, in consideration of the premises, the respective
commitments and undertakings of the parties hereto, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. Recitals. The recitals set forth above are incorporated in this
Agreement by reference as if such recitals were set forth in this Agreement in
their entirety. Further, the Post-Closing Covenants contained in Section 10.1 of
the Exchange Agreement are incorporated in this Agreement by reference as if
such covenants were set forth in this Agreement in their entirety.
2. Voting Agreement Regarding Directors.
(a) Right to Nominate and Agreement to Elect Director. For the one (1)
year period following the Closing, the KRM Fund shall have the right to nominate
one (1) director to the board of directors of Buyer ("Board"). Each Stockholder
agrees to vote all shares of Buyer Common Stock that he now or hereafter owns
(or as to which he has voting power) ("Shares") as may be necessary to elect the
one (1) director nominated by the KRM Fund during the one (1) year period
following the Closing.
(b) Removal. Any director of Buyer may be removed from the Board in the
manner allowed by law and Buyer's Governing Documents, but with respect to the
director nominated by KRM Fund pursuant to Section 2(a) above, in the event such
director is removed pursuant to Section 2(b) hereof, KRM Fund shall have the
right to nominate such removed director's replacement, subject to the approval
of the Stockholders, such approval to not be unreasonably withheld.
(c) Director Qualifications. KRM Fund may nominate any person of sound
mind and legal age to serve as director; provided, however, that such person (i)
shall not be employed within or otherwise principally associated with Buyer or
its subsidiaries and affiliates, (ii) shall be subject to the approval of the
Stockholders which approval shall not be unreasonably withheld, (iii) shall
qualify as an "independent" director under the applicable corporate governance
requirement and standards imposed by the SOX Act, the SEC and any exchange on
which Buyer lists or quotes, or expects to list or quote, its securities, and
(iv) shall qualify as a financial expert with respect to such director's
membership on the audit committee of Buyer.
(d) Covenants of Buyer and Stockholders. Buyer and Stockholders agree
to use their best efforts to ensure that the rights granted hereunder are
effective and that KRM Fund enjoys the benefits thereof. Such actions include,
without limitation, the use of Buyer's and each Stockholder's best efforts to
cause the nomination and election of the directors as provided above. Buyer and
Stcokholders will not, by any voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be performed hereunder by them,
but will at all times in good faith assist in the carrying out of all of the
provisions of this Section 2 and in the taking of all such actions as may be
necessary, appropriate or reasonably requested in order to protect the rights of
KRM Fund hereunder against impairment.
(e) No Liability for Election of Recommended Directors. Other than as
approved in Section 2(c) above, neither Buyer nor the Stockholders, nor any of
Buyer's officers, directors, Stockholders, partners, employees or agents makes
any representation or warranty as to the fitness or competence of any nominee of
KRM Fund to serve on the Board by virtue of such party's execution of this
Agreement or by the act of such party in voting for such nominee pursuant to
this Agreement.
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3. Grant of Irrevocable Proxy. To secure each Stockholder's obligation to
vote that Stockholder's Shares in accordance with the provisions of this
Agreement, each Stockholder hereby appoints Xxxxxxx X. Xxxxxxx ("Fund
Representative") as his true and lawful proxy, with full power of substitution,
to vote all Shares, in such proxy's sole discretion, to effect the provisions of
Section 2 hereof. The proxies and powers granted by each Stockholder pursuant to
this Agreement are coupled with an interest and are given to secure the
performance of such Stockholder's duties under this Agreement. Such proxies will
be irrevocable during the one (1) year period following the Closing, and such
proxies shall survive the death, incompetency and disability of any Stockholder
or other holder of such Stockholder's Shares.
4. Transfer of Shares. No Shares shall be transferred unless and until the
transferee executes an instrument acknowledging and agreeing that the Shares
being acquired are subject to the agreements, restrictions and irrevocable
proxies set forth in this Agreement.
5. Legend. Each certificate evidencing Shares owned by any Stockholder and
each certificate issued in exchange for or upon the transfer of any such Shares
shall be stamped or otherwise imprinted with a legend (the "Legend") in
substantially the following form or to the following effect:
"The securities represented by this certificate are subject to a
Voting Agreement by and among the original holder of such
securities, the issuer of such securities, and Xxxxxxx Reverse
Merger Fund, LLC and to an irrevocable proxy granted pursuant to the
Voting Agreement. A copy of such agreement will be furnished without
charge by issuer at its corporate offices, upon written request."
6. Miscellaneous Provisions.
(a) Binding Effect. This Agreement shall constitute a valid and binding
agreement among the Stockholders and any subsequent holders of Shares now or
hereafter owned by the Stockholders and their respective successors and assigns.
(b) Remedies. KRM Fund shall be entitled to specific enforcement of its
rights under this Agreement, to recover damages by reason of any breach of any
provision hereof and to exercise all other rights existing in their favor. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that KRM Fund may,
in its sole discretion, apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement.
(c) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
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(d) Entire Agreement. This Agreement embodies the complete agreement
and understanding among the parties with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements or
representations, by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
(e) Counterparts. This Agreement may be executed on separate
counterparts, each of which will be an original and all of which taken together
will constitute one and the same Agreement.
(f) Governing Law. All questions concerning this Agreement will be
governed by and interpreted in accordance with the internal law, not the law of
conflicts, of the state of Delaware, USA.
(g) Arbitration. Any disputes or claims arising under or in connection
with this Agreement or the transactions contemplated hereunder shall be resolved
by binding arbitration. Notice of a demand to arbitrate a dispute by any party
shall be given in writing to the other parties at their last known address.
Arbitration shall be commenced by the filing by a party of an arbitration demand
with the American Arbitration Association ("AAA") in its office in Denver,
Colorado USA. The arbitration and resolution of the dispute shall be resolved by
a single arbitrator appointed by the AAA pursuant to AAA rules. The arbitration
shall in all respects be governed and conducted by applicable AAA rules, and any
award and/or decision shall be conclusive and binding on the parties. The
arbitration shall be conducted in Denver, Colorado. The arbitrator shall supply
a written opinion supporting any award, and judgment may be entered on the award
in any court of competent jurisdiction. Each party shall pay its own fees and
expenses for the arbitration, except that any costs and charges imposed by the
AAA and any fees of the arbitrator for his services shall be assessed against
the losing party by the arbitrator. In the event that preliminary or permanent
injunctive relief is necessary or desirable in order to prevent a party from
acting contrary to this Agreement or to prevent irreparable harm prior to a
confirmation of an arbitration award, then either party is authorized and
entitled to commence a lawsuit solely to obtain equitable relief against the
other pending the completion of the arbitration in a court having jurisdiction
over the parties. All rights and remedies of the parties shall be cumulative and
in addition to any other rights and remedies obtainable from arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph.
SUNNINGDALE, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
XXXXXXX REVERSE MERGER FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Manager
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STOCKHOLDERS:
/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxxxxxx Xxxxx
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Xxxxx Xxxxxxxx Xxxxx
/s/ Simon Xxxxxxxx Xxxxxxx
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Simon Xxxxxxxx Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx
The X.X. Xxxx Discretionary Settlement 2004
By: /s/ Xxxxxxx X. Xxxx
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Trustee
/s/ Xxxxxx X. Xxxx
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Trustee
The Xxxxxxx Family Settlement 2004
By: /s/ Xxxxxxxx Xxxxxxx
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Trustee
/s/ Xxxxxx Xxxxxxxx
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Trustee
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