VOTING AGREEMENT
EXHIBIT
10.3
THIS
VOTING AGREEMENT is made and entered into as of this 11th day of January, 2008,
by and among Sapphire Developments Limited, a Belize corporation ("Sapphire"),
Atlantic Wine Agencies, Inc., a Florida corporation (“Atlantic”) and Xxxxxxxxx
Properties S.A., a B.V.I. corporation ("Xxxxxxxxx"). Sapphire and Xxxxxxxxx
shall sometimes be referred to herein as the “Parties” and together
collectively, the “Parties”).
RECITALS
A.
Concurrently with the execution of this Agreement, the Parties are entering
into
a Debt Restructuring Agreement (the “Debt Restructuring Agreement”)
providing for the restructuring of certain debt owed by Atlantic Wine Agencies,
Inc. (“Company”) to
Sapphire and in connection with that agreement the Parties agree to vote their
respective shares together with respect to Company’s members of its board of
directors (“Board”) and
the size of such Board.
B.
The parties also desire to enter into this Agreement to set forth their
agreements and understandings with respect to how shares of the Company’s
capital stock held by them will be voted on with respect an acquisition or
merger to which the Company is a party.
NOW,
THEREFORE, the parties agree as follows:
1.
Voting
Provisions Regarding Board of Directors and Corporate
Transaction.
1.1
Size
of the Board. Each Stockholder agrees to vote, or cause to be
voted, all Shares (as defined below) owned by such Stockholder, or over which
such Stockholder has voting control, from time to time and at all times, in
whatever manner as shall be necessary to ensure that the size of the Board
shall
be set and remain at three (3) directors and may be increased only with the
written consent of at least 50% of the shares of Common Stock outstanding
including those shares held by the Parties. For purposes of this
Agreement, the term “Shares” shall mean and include any securities of the
Company the holders of which are entitled to vote for members of the Board,
including without limitation, all shares of Common Stock by whatever name
called, now owned or subsequently acquired by a Stockholder, however acquired,
whether through stock splits, stock dividends, reclassifications,
recapitalizations, similar events or otherwise.
1.2
Board
Composition. Each Stockholder agrees to vote, or cause to be
voted, all Shares owned by such Stockholder, or over which such Stockholder
has
voting control, from time to time and at all times, in whatever manner as shall
be necessary to ensure that at each annual or special meeting of Parties at
which an election of directors is held or pursuant to any written consent of
the
Parties, the following persons shall be elected to the Board:
(a)
The Company’s Chief Executive Officer and Chairman, who shall be Xxxx
Xxxxxxxxxxx (the “CEO
Director”), provided that if for any reason the CEO Director shall cease
to serve as the Chief Executive Officer of the Company, each of the Parties
shall promptly vote their respective Shares (i) to remove the former Chief
Executive Officer from the Board if such person has not resigned as a member
of
the Board and (ii) to elect such person’s replacement as Chief Executive Officer
of the Company as the new CEO Director; and
(b)
If desired by each of Sapphire and Xxxxxxxxx, two individuals not otherwise
Affiliates (defined below) of the Company or the Parties who are mutually
acceptable to Sapphire and Xxxxxxxxx.
To
the
extent that any of clauses (a) through (b) above shall not be applicable, any
member of the Board who would otherwise have been designated in accordance
with
the terms thereof shall instead be voted upon by all the Parties of the Company
entitled to vote thereon in accordance with, and pursuant to, the Company’s
Certificate of Incorporation.
For
purposes of this Agreement, an individual, firm, corporation, partnership,
association, limited liability company, trust or any other entity (collectively,
a “Person”) shall be
deemed an “Affiliate” of
another Person who, directly or indirectly, controls, is controlled by, or
is
under common control with such Person, including, without limitation, any
partner, officer, director, or member of such Person and any venture capital
fund now or hereafter existing which is controlled by or under common control
with one or more general partners (or members thereof) or shares the same
management company (or members thereof) with such
Person.
1.3
Failure
to
Designate a Board Member. In the absence of any designation
from the Persons or groups with the right to designate a director as specified
above, the director previously designated by them and then serving shall be
reelected if still eligible to serve as provided herein.
1.4
Removal
of
Board Members. Each Party also agrees to vote, or cause to be
voted, all Shares owned by such Party, or over which such Party has voting
control, from time to time and at all times, in whatever manner as shall be
necessary to ensure that:
(a)
no director elected pursuant to this Agreement may be removed from office other
than for cause unless such removal is directed or approved by the affirmative
vote of the Person, or of the holders of at least 50% of the shares of
outstanding Common Stock; and
(b)
any vacancies created by the resignation, removal or death of a director elected
pursuant to Sections
1.2 or 1.3 shall be filled pursuant to the provisions of this Section
1.
All
Parties agree to execute any written consents required to perform the
obligations of this Agreement, and the Company agrees at the request of any
party entitled to designate directors to call a special meeting of Parties
for
the purpose of electing directors.
1.5
No
Liability for Election of Recommended Directors. No
Stockholder, nor any Affiliate of any Stockholder, shall have any liability
as a
result of designating a person for election as a director for any act or
omission by such designated person in his or her capacity as a director of
the
Company, nor shall any Stockholder have any liability as a result of voting
for
any such designee in accordance with the provisions of this
Agreement.
1.6
Change of
Control. In the event that the Board recommends a Change of Control (as
defined below) transaction, then each Party hereby agrees:
(a)
if such transaction requires stockholder approval, with respect to all Shares
that such Party owns or over which such Party otherwise exercises voting power,
to vote (in person, by proxy or by action by written consent, as applicable)
all
Shares in favor of, and adopt, such Change of Control of the Company (together
with any related amendment to the Certificate of Incorporation required in
order
to implement such Change of Control of the Company) and to vote in opposition
to
any and all other proposals that could reasonably be expected to delay or impair
the ability of the Company to consummate such Change of Control of the
Company;
(b)
to execute and deliver all related documentation and take such other action
in
support of the Change of Control of the Company as shall reasonably be requested
by the Company or the Selling Investors in order to carry out the terms and
provision of this Section 1.6,
including without limitation executing and delivering instruments of conveyance
and transfer, and any Debt Restructuring Agreement, merger agreement, indemnity
agreement, escrow agreement, consent, waiver, governmental filing, share
certificates duly endorsed for transfer (free and clear of impermissible liens,
claims and encumbrances) and any similar or related documents;
(c)
not to deposit, and to cause their Affiliates not to deposit, except as provided
in this Agreement, any Shares of the Company owned by such party or Affiliate
in
a voting trust or subject any Shares to any arrangement or agreement with
respect to the voting of such Shares, unless specifically requested to do so
by
the acquiror in connection with the Change of Control of the
Company;
(d)
to refrain from exercising any dissenters’ rights or rights of appraisal under
applicable law at any time with respect to such Change of Control of the
Company; and
(e)
if the consideration to be paid in exchange for the Shares pursuant to this
Section 1.6
includes any securities and due receipt thereof by any Stockholder would require
under applicable law (x) the registration or qualification of such securities
or
of any person as a broker or dealer or agent with respect to such securities
or
(y) the provision to any Party of any information other than such information
as
a prudent issuer would generally furnish in an offering made solely to
“accredited investors” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended, the Company may cause to be paid to any
such
Party in lieu thereof, against surrender of the Shares which would have
otherwise been sold by such Party, an amount in cash equal to the fair value
(as
determined in good faith by the Company) of the securities which such Party
would otherwise receive as of the date of the issuance of such securities in
exchange for the Shares.
For
purposes of this Agreement, “Change in Control” shall mean:
(i)
The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a
“Person”),
other than the current
principal stockholders of the Company, of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent
(50%)
or more of the then outstanding shares of the Company’s Common Stock (the “Outstanding Company’s
Shares”);
or
(ii)
Consummation after the date of this Agreement of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company or the acquisition of assets of another corporation (a
“Business Combination”), in each case, unless, following such Business
Combination, (A) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Company’s Shares
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of the then Outstanding Company’s
Shares of the corporation resulting from such Business Combination in
substantially the same proportions as their ownership, immediately prior to
such
Business Combination, of the outstanding Company’s Shares, (B) no Person
(excluding any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, fifty percent (50%) or more of, respectively, the then
outstanding Company’s Shares resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such Person had an ownership position
in
excess of such fifty percent (50%) of the outstanding Company’s Shares prior to
the Business Combination or (C) at least a majority of the members of the board
of the entity resulting from such Business Combination were members of the
incumbent Board or Persons who replaced such Incumbent Board without causing
a
Change in Control pursuant to Section (b) above at the time of the execution
of
the initial agreement, or of the action of the Incumbent Board, providing for
such Business Combination; or
(iii)
Approval by the security holders of the Company of a complete liquidation or
dissolution of the Company.
3.
Remedies.
3.1
Covenants
of
the Company. The Company agrees to use its best efforts,
within the requirements of applicable law, to ensure that the rights granted
under this Agreement are effective and that the parties enjoy the benefits
of
this Agreement. Such actions include, without limitation, the use of
the Company’s best efforts to cause the nomination and election of the directors
as provided in this Agreement.
3.2
Irrevocable
Proxy. Each party to this Agreement hereby constitutes and
appoints Xxxx Xxxxxxxxxxx with full power of substitution, as the proxies of
the
Parties with respect to the matters set forth herein, including without
limitation, election of persons as members of the Board in accordance with
this
Agreement and votes regarding any Change of Control of the Company, and hereby
authorizes each of them to represent and to vote, if and only if the party
(i)
fails to vote or (ii) attempts to vote (whether by proxy, in person or by
written consent), in a manner which is inconsistent with the terms of this
Agreement. The proxy granted pursuant to the immediately preceding sentence
is
given in consideration of the agreements and covenants of the Company and the
parties in connection with the transactions contemplated by this Agreement
and,
as such, is coupled with an interest and shall be irrevocable unless and until
this Agreement terminates or expires pursuant to Section 5
hereof. Each party hereto hereby revokes any and all previous proxies
with respect to the Shares and shall not hereafter, unless and until this
Agreement terminates or expires pursuant to Section 5 hereof, purport to grant
any other proxy or power of attorney with respect to any of the Shares, deposit
any of the Shares into a voting trust or enter into any agreement (other than
this Agreement), arrangement or understanding with any person, directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of any of the Shares, in each case, with respect to any of the matters
set forth herein.
3.3
Specific
Enforcement. Each party acknowledges and agrees that each
party hereto will be irreparably damaged in the event any of the provisions
of
this Agreement are not performed by the parties in accordance with their
specific terms or are otherwise breached. Accordingly, it is agreed
that each of the Company and the Parties shall be entitled to an injunction
to
prevent breaches of this Agreement, and to specific enforcement of this
Agreement and its terms and provisions in any action instituted in any court
of
the United States or any state having subject matter jurisdiction.
3.4
Remedies
Cumulative. All remedies, either under this Agreement or by
law or otherwise afforded to any party, shall be cumulative and not
alternative.
4.
Term. This
Agreement shall be effective as of the date hereof and shall continue in effect
until and shall terminate upon the earliest to occur of (a) six-months
anniversary of the date of this Agreement; (b) the consummation of a Change
of
Control event; and (c) termination of this Agreement in accordance with Section 5.7
below.
5.
Miscellaneous.
5.1
Transfers. Each
transferee or assignee of any Shares subject to this Agreement shall continue
to
be subject to the terms hereof, and, as a condition precedent to the Company’s
recognizing such transfer, each transferee or assignee shall agree in writing
to
be subject to each of the terms of this Agreement by executing and delivering
an
Adoption Agreement substantially in the form attached hereto as Exhibit
A. Upon the execution and delivery of an Adoption Agreement by
any transferee, such transferee shall be deemed to be a party hereto as if
such
transferee were the transferor and such transferee’s signature appeared on the
signature pages of this Agreement and shall be deemed to be a
Party. The Company shall not permit the transfer of the Shares
subject to this Agreement on its books or issue a new certificate representing
any such Shares unless and until such transferee shall have complied with the
terms of this Section
5.1
5.2
Successors
and Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto
or
their respective successors and assigns any rights, remedies, obligations,
or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.3
Governing
Law. This Agreement and any controversy arising out of or
relating to this Agreement shall be governed by and construed in accordance
with
the laws of the State of New York, without regard to conflict of law principles
that would result in the application of any law other than the law of the State
of New York.
5.4
Counterparts;
Facsimile. This Agreement may be executed and delivered by
facsimile signature and in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
5.5
Titles
and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
5.6
Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given upon the earlier of actual
receipt or: (a) personal delivery to the party to be notified, (b)
when sent, if sent by electronic mail or facsimile during normal
business hours of the recipient, and if not sent during normal business hours,
then on the recipient’s next business day, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage prepaid,
or (d) one (1) business day after the business day of deposit with a nationally
recognized overnight courier, freight prepaid, specifying next business day
delivery, with written verification of receipt. If notice is given to the
Company or Xxxxxxxxx, a copy shall be sent to Xxxxxxx X. Xxxxxxxxxx, Esq.,
Xxxxxxx Xxxxxx Xxxxxx-Xxxx & Xxxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000, Fax: (000) 000-0000 and if notice is given to Sapphire,
a
copy shall be given to Xxxxx Xxxxxx, Esq. [address], Fax: 000 00 0 000 0000.
5.7
Consent
Required to Amend, Terminate or Waive. This Agreement may be
amended or terminated and the observance of any term hereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only
by a written instrument executed by
the Company and the Parties.
5.8
Delays
or Omissions. No
delay or omission to exercise any right, power or remedy accruing to any party
under this Agreement, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such non-breaching
or
non-defaulting party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default previously or
thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only
to
the extent specifically set forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
5.9
Severability. The
invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or
enforceability of any other provision.
5.9
Entire
Agreement. This
Agreement (including
the Exhibits hereto), the Debt Restructuring Agreement and related documents
constitute the full and entire understanding and agreement between the parties
with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties
is
expressly canceled.
5.10
Stock
Splits, Stock Dividends, etc. In
the event of any issuance
of Shares of the Company’s voting securities hereafter to any of the Parties
(including, without limitation, in connection with any stock split, stock
dividend, recapitalization, reorganization, or the like), such Shares shall
become subject to this Agreement.
5.11
Manner
of Voting. The
voting of Shares
pursuant to this Agreement may be effected in person, by proxy, by written
consent or in any other manner permitted by applicable law.
5.12
Further
Assurances. At
any time or from time to time after the date hereof, the parties agree to
cooperate with each other, and at the request of any other party, to execute
and
deliver any further instruments or documents and to take all such further action
as the other party may reasonably request in order to evidence or effectuate
the
consummation of the transactions contemplated hereby and to otherwise carry
out
the intent of the parties hereunder.
5.13
Aggregation
of Stock. All
Shares held or acquired by a Party and/or its Affiliates shall be aggregated
together for the purpose of determining the availability of any rights under
this Agreement, and such Affiliated persons may apportion such rights as among
themselves in any manner they deem appropriate.
[Signature
Page
Follows]
IN
WITNESS WHEREOF, the parties have
executed this Voting Agreement as of the date first written
above.
Sapphire
Developments Limited
By:
/s/
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Vice-President
Xxxxxxxxx
Properties S.A.
By:
/s/
Xxxx
Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx
President
Atlantic
Wine Agencies,
Inc.
By: /s/ Xxxx
Maueberger
Xxxx
Xxxxxxxxxxx
President
EXHIBIT
A
ADOPTION
AGREEMENT
This
Adoption Agreement (“Adoption
Agreement”) is executed on
___________________, 20__, by the undersigned (the “Holder”)
pursuant to the terms of that certain
Voting Agreement dated as of January
11, 2008
(the
“Agreement”),
by and among the Company and certain
of its Parties, as such Agreement may be amended or amended and restated
hereafter. Capitalized terms used but not defined in this Adoption
Agreement shall have the respective meanings ascribed to such terms in the
Agreement. By the execution of this Adoption Agreement, the Holder
agrees as follows.
1.1
Acknowledgment. Holder
acknowledges that
Holder is acquiring certain shares of the capital stock of the Company (the
“Stock”)[
or options, warrants or other rights
to purchase such Stock (the “Options”)],
for one of the following reasons
(Check the correct box):
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as
a transferee of Shares from a
party in such party’s capacity as an “Investor” bound by the Agreement,
and after such transfer, Holder shall be considered an “Investor” and a
“Stockholder” for all purposes of the
Agreement.
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as
a transferee of Shares from a
party in such party’s capacity as a “Key Holder” bound by the Agreement,
and after such transfer, Holder shall be considered a “Key Holder” and a
“Stockholder” for all purposes of the
Agreement.
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as
a new Investor in accordance
with Section
6.1(a)of the
Agreement, in which case Holder will be an “Investor” and a “Stockholder”
for all purposes of the
Agreement.
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in
accordance with Section
6.1(b)of the
Agreement, as a new party who is not a new Investor, in which case
Holder
will be a “Stockholder” for all purposes of the
Agreement.
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1.2
Agreement. Holder
hereby (a) agrees
that the Stock [Options], and any other shares of capital stock or securities
required by the Agreement to be bound thereby, shall be bound by and subject
to
the terms of the Agreement and (b) adopts the Agreement with the same force
and
effect as if Holder were originally a party thereto.
1.3
Notice. Any
notice required or
permitted by the Agreement shall be given to Holder at the address or facsimile
number listed below Holder’s signature hereto.
HOLDER: ___________________
ACCEPTED AND
AGREED:
By: ________________________
ATLANTIC WINE AGENCIES,
INC.
Name
and Title of
Signatory
Address:
___________________
By:
_________________________
Title:
________________________
Facsimile
Number:
____________
