Exhibit 2.3
VOTING AGREEMENT
This Voting Agreement (“
Agreement ”) is made and entered into as of May
14, 2009, by and between Alternative Asset Management Acquisition
Corp., a Delaware corporation (“ AAMAC
”), Great American Group, Inc., a Delaware corporation and
wholly-owned subsidiary of AAMAC (“ Holdco
”), Great American Group, LLC, a California limited liability
company (“ GALLC ”), and each undersigned
stockholder of AAMAC (each a “ Stockholder
” and collectively, the “ Stockholders
”). Certain capitalized terms used in this Agreement that are
not defined herein or in Section 8 shall have the meaning
given to such terms in the Reorganization Agreement (as defined
below).
RECITALS
WHEREAS , each Stockholder is the holder of record and
the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”)) of certain shares of
common stock of AAMAC, par value $0.0001 per share (“
Common Stock ”);
WHEREAS , each Stockholder executed an Insider Letter
dated on or about August 1, 2007 in favor of AAMAC (the
“ Inside Letter ”) pursuant to which such
Stockholder agreed to vote, with respect to a solicitation by AAMAC
of its stockholders to approve an Initial Business Combination (as
defined in the Inside Letter) (such vote, a “ Business
Combination Vote ”), all of the shares of AAMAC
Common Stock acquired by it prior to the IPO (as defined in the
Insider Letter) (“ AAMAC Founder’s Stock
”) in accordance with the majority of votes cast by the
holders of the IPO Shares (as defined in the Insider
Letter);
WHEREAS , concurrently with the execution and delivery
of this Agreement, AAMAC, Holdco, AAMAC Merger Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Holdco (“
Merger Sub ”), GALLC, the members of GALLC and
the representative of each of GALLC, the members of GALLC and
certain other phantom equity holders of GALLC, are entering into an
Agreement and Plan of Reorganization (the “
Reorganization Agreement ”) which provides,
upon the terms and subject to the conditions set forth therein,
that the equity holders of AAMAC and the equity holders of GALLC,
will exchange their equity in AAMAC and GALLC, respectively, for
equity in Holdco, and for the merger of Merger Sub with and into
AAMAC (the “ Merger ”) pursuant to which
AAMAC will be the surviving entity and wholly-owned subsidiary of
Holdco; and
WHEREAS , as a condition and inducement to GALLC’s
willingness to enter into the Reorganization Agreement, each
Stockholder has agreed to execute and deliver this
Agreement.
NOW, THEREFORE
, the parties to this Agreement,
intending to be legally bound, agree as follows:
1. Agreement to Vote
Shares .
(a) Prior to the Termination Date,
at every meeting of the holders of Parent Common Stock (as defined
in the Reorganization Agreement), including, without limitation,
the Special Meeting (as defined in the Reorganization Agreement),
called with respect to any of the proposals set forth in the
definitive Proxy Statement (as defined in the Reorganization
Agreement) to be voted on by the holders of Parent Common Stock
(the “ Stockholder Proxy Proposals ”),
and at every adjournment or postponement thereof, and on every
action or approval by written consent of the holders of Parent
Common Stock with respect to any of the Stockholder Proxy
Proposals, each Stockholder hereby severally agrees and
acknowledges that it shall vote its Subject Securities in favor of
each Stockholder Proxy Proposal set forth in the Proxy Statement;
provided , however , that notwithstanding the
foregoing, with respect to the
AAMAC Founder’s Stock owned by it, with
respect to the proposal regarding a Business Combination Vote, it
shall vote such AAMAC Founder’s Stock in accordance with the
Insider Letter.
(b) Prior to the Termination Date,
at every meeting of the holders of Parent Warrants (as defined in
the Reorganization Agreement), called with respect to any of the
proposals set forth in the definitive Proxy Statement to be voted
on by the holders of Parent Warrants (the “
Warrantholder Proxy Proposals ”) and at every
adjournment or postponement thereof, and on every action or
approval by written consent of the holders of Parent Warrants with
respect to any of the Warrantholder Proxy Proposals, each
Stockholder that beneficially owns any Parent Warrants hereby
severally agrees and acknowledges that it shall vote such Parent
Warrants comprising its Subject Securities in favor of each
Warrantholder Proxy Proposal set forth in the Proxy
Statement.
(c) Each Stockholder who is the
beneficial owner, but not the record holder, of its Subject
Securities, hereby agrees to take all actions necessary to cause
the record holder and any nominees to vote all of the Subject
Securities in accordance with Sections 1(a) and 1(b)
.
2. Irrevocable Proxy
. Each Stockholder hereby
irrevocably (to the full extent permitted by Section 212 of
the Delaware General Corporation Law) appoints Paul D. Lapping, as
the sole and exclusive attorney and proxy of the undersigned, with
full power of substitution and resubstitution, to vote and exercise
all voting and related rights expressly provided herein (to the
full extent that the undersigned is entitled to do so) with respect
to its Subject Securities. Upon the undersigned Stockholder’s
execution of this Agreement, any and all prior proxies given by the
undersigned Stockholder with respect to any of its respective
Subject Securities are hereby revoked and such Stockholder agrees
not to grant any subsequent proxies with respect to the Subject
Securities.
This Proxy is irrevocable (to the
extent permitted by Section 212 of the Delaware General
Corporation Law), and is coupled with an interest. The attorney and
proxy named above is hereby authorized and empowered by each
undersigned Stockholder, at any time prior to the Termination Date,
to act as such Stockholder’s attorney and proxy to vote the
Subject Securities, and to exercise all voting and other rights of
the undersigned with respect to the Subject Securities (including,
without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the Delaware General
Corporation Law), at every annual, special or adjourned meeting of
the stockholders and warrant holders of AAMAC and in every written
consent in lieu of such meeting in accordance with
Section 1 .
This proxy shall be binding upon the
heirs, estate, executors, personal representatives, successors and
assigns of each Stockholder (including any permitted transferee of
any of the Subject Securities).
3. Agreement to Retain
Shares .
(a) Restriction on Transfer .
During the period from the date of this Agreement through the
Termination Date, no Stockholder shall, directly or indirectly,
cause or permit any Transfer of any of its respective Subject
Securities to be effected without the consent of GALLC (which
consent shall not be unreasonably withheld).
(b) Restriction on Transfer of
Voting Rights . During the period from the date of this
Agreement through the Termination Date, each Stockholder shall
ensure that: (a) none of its respective Subject Securities is
deposited into a voting trust; and (b) no proxy (other than
the proxy granted pursuant to this Agreement) is granted, and no
voting agreement or similar agreement is entered into, with respect
to any of the Subject Securities.
-2-
4. Waiver of Appraisal
Rights . Each Stockholder
hereby irrevocably and unconditionally waives any rights of
appraisal, any dissenters’ rights and any similar rights
relating to the Reorganization (as defined in the Reorganization
Agreement) or any related transaction that such Stockholder may
have by virtue of any outstanding shares of AAMAC by such
Stockholder.
5. Representations, Warranties
and Covenants of Each Stockholder . Each Stockholder hereby severally represents
and warrants to GALLC as follows:
(a) Due Authorization, Etc .
All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Stockholder of this Agreement
and the proxy have been obtained, such Stockholder has full right,
power and authority to enter into this Agreement and the proxy.
This Agreement and the proxy have been duly executed and delivered
by such Stockholder and constitute valid and binding agreements of
such Stockholder enforceable in accordance with their terms, except
as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect relating to creditors’ rights generally and subject to
general principles of equity.
(b) No Conflict . The
execution and delivery of this Agreement and the proxy by such
Stockholder do not, and the performance of this Agreement and the
proxy by such Stockholder will not (i) conflict with or
violate any law, rule, regulation, order, decree or judgment
applicable to such Stockholder or by which he or it or any of his
or its properties is or may be bound or affected; or
(ii) result in or constitute any breach of or default under,
or give to any other Person any right of termination, amendment,
acceleration or cancellation of, or result in the creation of any
encumbrance or restriction on any of its respective Subject
Securities pursuant to, any contract to which Stockholder is a
party or by which such Stockholder or any of his or its affiliates
or properties is or may be bound or affected.
(c) Title to Securities . As
of the date of this Agreement: (i) such Stockholder holds of
record (free and clear of any encumbrances or restrictions other
than in connection with agreements entered into in connection with
AAMAC’s initial public offering, all of which were filed with
the Securities and Exchange Commission or otherwise delivered to
GALLC (“ Permitted Encumbrances ”)) the
number of outstanding shares of AAMAC Common Stock set forth under
the heading “Shares Held of Record” on the line
opposite its name on Exhibit A hereto; (ii) such
Stockholder holds (free and clear of any encumbrances or
restrictions other than the Permitted Encumbrances) the options,
warrants and other rights to acquire shares of AAMAC Common Stock
set forth under the heading “Options and Other Rights”
on the line opposite its name on Exhibit A hereto;
(iii) such Stockholder Owns the additional securities of AAMAC
set forth under the heading “Additional Securities
Beneficially Owned” on the line opposite its name on
Exhibit A hereto; and (d) such Stockholder does not
directly or indirectly Own any shares of capital stock or other
securities of AAMAC, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of AAMAC, other than the shares
and options, warrants and other rights described in clauses
(i)-(iii) of this Section 5(c) on the line opposite its
name on Exhibit A hereto.
(d) Accuracy of
Representations . The representations and warranties contained
in this Agreement are accurate in all respects as of the date of
this Agreement, and will be accurate in all respects at all times
through the Termination Date.
6. Additional Covenants of Each
Stockholder .
(a) Further Assurances . From
time to time and without additional consideration, such Stockholder
shall (at Stockholder’s sole expense) execute and deliver, or
cause to be executed and deliver
