VOTING AGREEMENT
Exhibit 9.2
This VOTING AGREEMENT (this “Agreement”), dated as of November 7, 2006, is entered
into by and between Aether Holdings, Inc., a Delaware corporation (the “Company”) and
Athlete’s Foot Marketing Associates, LLC (“AFMA” or the “Stockholder”).
A. The Company, AFMA, NexCen Franchise Brands, Inc., a Delaware corporation
(“Brands”), NexCen Franchise Management, Inc., a Delaware corporation
(“Management”), Athlete’s Foot Brands, LLC, a Delaware limited liability company
(“Brands”), The Athlete’s Foot Marketing Support Fund, LLC, a Georgia limited liability
company (“Support Fund”), and Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxx
Xxxxxxxx have entered into that certain Equity Interest and Asset Purchase Agreement, dated as of
August 21, 2006 (the “Purchase Agreement”), pursuant to which AFMA has agreed to sell to
Brands and Management, respectively (i) all of the outstanding equity interests in each of Brands
and Support Fund, each a wholly-owned subsidiary of AFMA (such outstanding equity interests of each
of Brands and Support Fund collectively, the “Interests”); and (ii) all of AFMA’s right,
title and interest in and to certain software and other assets of AFMA (collectively, the
“Transferred Assets”).
B. As partial consideration for the Interests and Transferred Assets, on the terms and
conditions set forth in the Purchase Agreement, the Company has agreed to issue to AFMA shares of
the Company’s common stock, $1.00 par value per share (the “Common Stock”), and in respect
thereof the Stockholder desires and agrees to be bound by the restrictions on transfer, and to vote
all shares of Common Stock, 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 are 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 or that certain Escrow
Agreement, dated as of the date hereof, by and among the Company, Wilmington Trust Company, Brands,
Management and AFMA (the “Escrow Agreement”), as applicable):
1. Agreement to Vote Shares; Irrevocable Proxy. The Stockholder hereby appoints
Xxxxxx X’Xxxxx and any designee of Xxxxxx X’Xxxxx appointed with the consent of the Board of
Directors of the Company (collectively, Xxxxxx X’Xxxxx and such designees are hereinafter referred
to collectively as the “Proxy Holder”) 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 shares constituting the Consideration Shares (including, without
limitation, the Initial Escrow Shares and the Additional Escrow Shares) and the True Up Shares,
whether now or hereafter acquired by the Stockholder (the “Shares”). The Stockholder 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
the Stockholder 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 the Stockholder with respect to the matters contemplated hereunder.
The power of attorney granted by the Stockholder herein is a durable power of attorney and shall
survive the dissolution, bankruptcy, death or incapacity of the Stockholder. 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 Stockholder hereby
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irrevocably consents to, vote all Shares in favor of matters recommended or approved by the Board
of Directors of the Company, or, if such matters are neither recommended nor approved by the Board
of Directors of the Company, then at the direction of the Board of Directors of the Company, in
respect of all matters for which stockholder approval is sought or required. Notwithstanding
anything to the contrary, the provisions of this Section 1 shall not apply with respect to any
Shares that have been validly Transferred (as hereinafter defined) in compliance with Section 4(b)
or 4(c) hereof by the Stockholder (or its permitted transferees or successors in interest) to a
Person that is not an Affiliate (as defined in Section 10(e) hereof) of the Stockholder.
2. No Voting Trusts or Other Arrangements. The Stockholder agrees that it will
not, and will not permit any Affiliate, to grant any proxies with respect to the Shares or subject
any of the Shares to any arrangement with respect to the voting of the Shares other than this
Agreement.
3. Stockholder Capacity. Notwithstanding anything to the contrary set forth
herein, the Stockholder is entering into this Agreement solely in the Stockholder’s capacity as the
holder of the Shares and nothing in this Agreement shall prevent the Stockholder from taking any
action or omitting to take any action in the Stockholder’s capacity (if an individual) as an
officer or employee of the Company or any of its Affiliates (as defined below), in either case as
applicable or as may become applicable to such Stockholder.
4. Transfer and Encumbrance.
(a) The Stockholder represents and warrants that (i) the 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 the 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 such Shares, other than this
Agreement, (iii) the Stockholder has full power and authority to enter into, execute and deliver
this Agreement and to perform fully the Stockholder’s obligations hereunder and (iv) this Agreement
constitutes the legal, valid and binding obligation of the Stockholder in accordance with its
terms.
(b) For the period from the date hereof until the first anniversary of the date hereof (the
“Free Resale Date”), the Stockholder shall not, and shall not agree to, (i) sell, transfer,
hypothecate, negotiate, pledge, assign, encumber, grant any option, warrant or other right to
purchase, or otherwise dispose of, or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of ((i) and (ii) collectively, “Transfer”) such number of Shares equal to 75%
of the aggregate number of Shares (the “Restricted Shares”) except (x) to one or more
partners or members of the Stockholder or to an affiliated corporation under common control with
the Stockholder (but then only if, as a precondition to such transfer, the Stockholder has
delivered to the Company an opinion of counsel in form and substance satisfactory to the Company
and its counsel, to the effect that no registration of the Shares under the Securities Act is
required), subject further to the restrictions set forth in the Escrow Agreement or (y) to the
Company, in the case of Initial Escrow Shares or Additional Escrow Shares Transferred pursuant to
the Escrow Agreement.
(c) From and after the date hereof (for Shares that are not Restricted Shares) or after the
Free Resale Date (for the Restricted Shares), the Stockholder (or its permitted transferees or
successors in interest, as applicable) shall not Transfer any Shares except (i) as contemplated by
the Registration
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Rights Agreement and Escrow Agreement, and in compliance with the registration and prospectus
delivery requirements of the Securities Act and with the applicable state securities laws; (ii) in
compliance with the resale provisions of Rule 144 under the Securities Act (or any successor
provision thereto), subject to restrictions imposed by the Escrow Agreement; (iii) pursuant to a
Transfer that does not require registration of the subject Shares under the Securities Act,
provided further that the Stockholder has provided an opinion of counsel, in form and substance
satisfactory to the Company and its counsel, to the effect that no registration of the Shares under
the Securities Act is required, subject to restrictions imposed by the Escrow Agreement; or (iv) to
the Company, in the case of Initial Escrow Shares or Additional Escrow Shares Transferred pursuant
to the Escrow Agreement; provided further, that under no circumstances shall the Stockholder
Transfer, in any one calendar quarter (prorated for partial calendar quarters), more than 25% of
the aggregate number of Consideration Shares and True Up Shares (as may be adjusted for stock
splits, combinations, stock dividends or reclassifications) previously issued to Stockholder
pursuant to the Purchase Agreement.
(d) Without limitation of Sections 4(b) and 4(c) hereof, the Stockholder agrees that any
purported Transfer to an Affiliate of the Stockholder shall be effective only if, as a precondition
thereto, the transferee agrees in a writing, reasonably satisfactory in form and substance to the
Company and the Proxy Holder, to be bound by the terms of this Agreement as if such transferee were
the “Stockholder” hereunder. Any purported Transfer in violation of this Section 4 shall be null
and void ab initio.
5. New Shares. The Stockholder hereby agrees that all Shares that the Stockholder
receives as a result of any stock splits, combinations, stock dividends or reclassifications of
Shares (all such Shares collectively, “New Shares”), shall be subject to the terms of this
Agreement to the same extent as if they constituted the 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.
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 marked for next day delivery to the parties at the following
addresses (or at such other address for a party as shall be specified by like notice):
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| If to the Company or the Proxy Holder: | ||
| Aether Holdings, Inc. | ||
| 1330 Avenue of the Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxx Xxxxx | ||
| Fax: (000) 000-0000 | ||
| With a copy (which shall not constitute notice to the Company) to: | ||
| Xxxxx & XxXxxxxx LLP | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx, Esq. | ||
| Fax: (000) 000-0000 | ||
| If to the Stockholder: | ||
| Athlete’s Foot Marketing Associates, LLC | ||
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxx 000 | ||
| Xxxxxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxxxx Xxxxxxx | ||
| Fax: (000) 000-0000 | ||
9. Legends.
(a) In addition to other legends that are required, either by agreement or by federal or state
securities laws, each certificate representing any of the Shares shall be marked by the Company
with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION HEREOF. THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ALL OTHER APPLICABLE
STATE SECURITIES LAWS.
(b) In addition to other legends that are required, either by agreement or by federal or state
securities laws, each certificate representing any of the Restricted Shares shall be marked by the
Company with a legend substantially in the following form:
THE SALE, TRANSFER, HYPOTHECATION, NEGOTIATION, PLEDGE, ASSIGNMENT,
ENCUMBRANCE, GRANT OF ANY OPTION, WARRANT OR OTHER RIGHT TO PURCHASE, OR OTHER
DISPOSITION (COLLECTIVELY, “TRANSFER”) OF THE SHARES EVIDENCED BY THIS
CERTIFICATE ARE RESTRICTED BY AND ARE SUBJECT TO ALL OF THE TERMS, CONDITIONS
AND PROVISIONS OF THAT CERTAIN
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REGISTRATION RIGHTS AGREEMENT ENTERED INTO BETWEEN AETHER HOLDINGS, INC. AND
ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE
“REGISTRATION RIGHTS AGREEMENT”) AND ARE SUBJECT TO RESTRICTIONS AND A
GRANT OF PROXY PURSUANT TO THAT CERTAIN VOTING AGREEMENT BY AND BETWEEN THE
COMPANY, AND ATHLETE’S FOOT MARKETING ASSOCIATES, LLC, DATED AS OF NOVEMBER 7,
2006 (THE “VOTING AGREEMENT”), COPIES OF EACH OF WHICH MAY BE OBTAINED
FROM THE SECRETARY OF AETHER HOLDINGS, INC. NO TRANSFER OF THE SHARES MAY BE
MADE UNLESS SPECIFIC CONDITIONS OF THE REGISTRATION RIGHTS AGREEMENT AND
VOTING AGREEMENT ARE SATISFIED.
(c) In addition to the foregoing, all Shares constituting Escrow Shares or Additional Escrow
Shares shall be marked by the Company with a legend substantially in the following form:
THE SALE, TRANSFER, HYPOTHECATION, NEGOTIATION, PLEDGE, ASSIGNMENT,
ENCUMBRANCE, GRANT OF ANY OPTION, WARRANT OR OTHER RIGHT TO PURCHASE, OR OTHER
DISPOSITION (COLLECTIVELY, “TRANSFER”) OF THE SHARES EVIDENCED BY THIS
CERTIFICATE ARE RESTRICTED BY AND ARE SUBJECT TO ALL OF THE TERMS, CONDITIONS
AND PROVISIONS OF THAT CERTAIN ESCROW AGREEMENT ENTERED INTO BY AND AMONG
WILMINGTON TRUST COMPANY, AETHER HOLDINGS, INC. AND ATHLETE’S FOOT MARKETING
ASSOCIATES, LLC, DATED AS OF NOVEMBER 7, 2006 (THE “ESCROW
AGREEMENT”), A COPY OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF AETHER
HOLDINGS, INC. NO TRANSFER OF THE SHARES MAY BE MADE UNLESS SPECIFIC
CONDITIONS OF THE ESCROW AGREEMENT ARE SATISFIED.
(d) It is understood and agreed that the reference to restrictions arising
under the Securities Act in the above legends will be removed by delivery of substitute
certificate(s) without such reference, if the Shares have been sold in compliance with the
registration and prospectus delivery requirements of the Securities Act and with the applicable
state securities laws, such Shares have been sold in reliance on and in accordance with Rule 144
under the Securities Act, or Stockholder has delivered to the Company an opinion of counsel in form
and substance reasonably satisfactory to Company and its counsel, to the effect that such legend is
not required for purposes of the Securities Act. It is understood and agreed that the reference to
restrictions arising under the Registration Rights Agreement and this Agreement in the above
legends will be removed by delivery of substitute certificate(s) without such reference, if the
Shares have been sold or transferred in compliance with the Registration Rights Agreement and this
Agreement. It is understood and agreed that the reference to restrictions arising under the Escrow
Agreement in the above legends will be removed by delivery of substitute certificate(s) without
such reference, if the Shares have been released from escrow pursuant to the Escrow Agreement.
10. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the
State of Delaware and the Federal courts of the United States of America, in each case sitting in
Delaware, solely in respect of the interpretation and enforcement of the provisions of this
Agreement and in respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement
hereof or of any such document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that the venue thereof may
not be appropriate or that this Agreement may not be enforced in or by such courts, and the parties
hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard
and determined in such a Delaware State or Federal court. The parties hereby consent to and grant
any such court jurisdiction over the person of such parties and over the subject matter of such
dispute and agree that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 8 or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
(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) If any provision of this Agreement or the application of such provision to any person or
circumstances shall be held invalid or unenforceable by a court of competent jurisdiction, such
provision or application shall be unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of the provision held invalid or unenforceable and the
application of such provision to persons or circumstances, other than the party as to which it is
held invalid, and the remainder of this Agreement, shall not be affected.
(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 when the sale, transfer or other disposition
of all Shares by the Stockholder to Persons that are not Affiliates shall have occurred, in
compliance with Section 4 hereof. For purposes hereof, the term “Person” shall mean any natural
person, corporation, general or limited partnership, limited liability company, association, joint
venture, trust, estate, governmental authority or other legal entity, in each case whether in its
own or a representative capacity. For purposes hereof, the term “Affiliate” shall mean with respect
to the Person in question, any other Person that, directly or indirectly, (i) owns or controls ten
percent (10%) or more of the outstanding voting and/or equity interests of such Person, or (ii)
controls, is controlled by or is under common control with, the Person in question, and shall
include, as applicable, members of the
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Immediate Family of such Person. For the purposes of this definition, the term “control” and its
derivations shall mean having the power, directly or indirectly, to direct the management, policies
or general conduct of business of the Person in question, whether by the ownership of voting
securities, contract or otherwise. For purposes hereof, “Immediate Family” of a Person includes
such Person’s spouse, parent, child, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, sister-in-law and anyone else who resides in the person’s home.
(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.
(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 10(g) shall be null and void.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Voting Agreement as of
the date first written above.
| AETHER HOLDINGS, INC. |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
| ATHLETE’S FOOT MARKETING ASSOCIATES, LLC |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
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