Exhibit 10.5


 


Execution Copy


 


VOTING AGREEMENT


 


This VOTING AGREEMENT (the “Agreement”), dated as of January 29,
2008, is entered into by and among NexCen Brands, Inc., a Delaware
corporation (the “Company”), Great American Cookie Company Franchising,
LLC, a Delaware limited liability company (“GACCF”), and Great American
Manufacturing, LLC, a Delaware limited liability company (“GAM,” and
collectively with GACCF, the “Holders”).


 


WHEREAS, the Company, NexCen Asset Acquisition, LLC, a Delaware limited
liability company (“Buyer”), Mrs. Fields’ Famous Brands, LLC, a
Delaware limited liability company, and the Holders have entered into that
certain Asset Purchase Agreement, dated as of January 29, 2008 (the “Purchase
Agreement”), pursuant to which Buyer has agreed to acquire certain of the
assets that relate to the operation of GACCF and GAM;


 


WHEREAS, pursuant to the terms of the Purchase Agreement, the Holders
will be issued and will receive 1,099,290 shares of common stock, par value
$0.01 per share, of the Company (“Company Shares”) representing the
Indemnity Escrow Amount upon release therefrom; and


 


WHEREAS, on the terms and conditions set forth in the Purchase
Agreement, the Holders desire and agree to be bound by the restrictions on
transfer, and to vote all Company Shares issued to them pursuant to the terms
of the Purchase Agreement as set forth herein.


 


NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt, sufficiency and
adequacy of which is 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):


 


1.             Agreement to Vote Shares; Irrevocable
Proxy.  Each Holder hereby appoints such person as
the Board of Directors of the Company may appoint after the date of this
Agreement (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 Company Shares and any
New Shares (as defined below) (collectively, the “Shares”).  Holders shall take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and limited power of attorney. 
The proxy and limited power of attorney granted hereunder by Holders
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 Holder with respect to the
matters contemplated hereunder.  The
power of attorney granted by Holders herein is a limited durable power of attorney
and shall survive the bankruptcy, death or incapacity of the Holders.  The proxy and limited 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 Holders hereby irrevocably consent to, vote all
Shares owned by them 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) by any of the Holders (or its permitted transferees or successors in
interest) to a third party in compliance with Section 3 hereof.


 


2.             No Voting Trusts or Other Arrangements. 
Each of the Holders agrees that he will not, and will not permit any
entity under his or its control 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.             Transfer and Encumbrance.


 


(a)           Each of the
Holders represents and warrants that (i) the Company 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, the Indenture, the Collateral Agreements (as defined in the
Indenture), and this Agreement, (ii) there are no options, warrants or
other rights, agreements, arrangements or commitments of any character to which
the Holders are a party relating to the pledge, disposition or voting of the
Shares, and there are no voting trusts or voting agreements with respect to the
Shares, other than this Agreement and applicable trust agreements for estate
planning purposes, including but not limited to charitable remainder trusts, (iii) each
of the Holders has full power and authority to enter into, execute and deliver
this Agreement and to perform fully the Holders’ obligations hereunder and (iv) this
Agreement constitutes the legal, valid and binding obligation of the Holders in
accordance with its terms.


 


(b)           On or after the
date hereof and during the term of this Agreement, except to the extent
permitted by Section 7.8 of the Purchase Agreement, each of the Holders
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”) any Company Shares, except (x) to one or more partners
or members of each of the Holders or to an affiliated corporation under common
control with either of the Holders (but then only if, as a precondition to such
transfer, 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 and each of the Holders (as applicable) 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 the Escrow
Amount being transferred pursuant to the Escrow Agreement and Purchase
Agreement.


 


4.             New Shares.  Each of the
Holders agrees that all Shares received as a result of any stock splits, stock
dividends or reclassifications of Company Shares (all such Shares collectively,
“New Shares”), shall be subject to the terms of this Agreement to the
same extent as if they constituted Company Shares as of the date hereof.


 


5.             Specific Performance. 
Each party hereto acknowledges that it will be difficult to measure in
money the damage to the other party if a party hereto fails to comply with any
of the


 


2

















 


obligations imposed by this Agreement 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.


 


6.             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.


 


7.             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 facsimile or
like transmission, email or on the next business day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):


 


If to the Company or the Proxy Holder:


 


	
  NexCen Brands, Inc.

  	
   

  
	
  1330 Avenue of the Americas

  	
   

  
	
  34th Floor

  	
   

  
	
  New
  York, NY 10019

  	
   

  
	
  Attention:

  	
  Sue
  J. Nam, General Counsel

  
	
  Fax:

  	
  (212)
  247-7132

  
			



 


With a copy (which shall not constitute notice to the
Company) to:


 


	
  Kirkland &
  Ellis LLP

  	
   

  
	
  655
  15th Street, N.W.

  	
   

  
	
  Washington,
  DC 20005

  	
   

  
	
  Attention:

  	
  Mark
  D. Director, Esq.

  
	
  Fax:

  	
  202-879-5200

  
			



 


If to the Holders, to the address or facsimile number or email address
set forth for each of the Holders on Schedule I hereto.


 


8.             Miscellaneous.


 


(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:


 


3

















 


“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 SUBJECT TO
RESTRICTIONS AND A GRANT OF PROXY PURSUANT TO THAT CERTAIN VOTING AGREEMENT BY
AND BETWEEN NEXCEN BRANDS, INC. AND THE HOLDERS NAMED THEREIN, DATED AS OF JANUARY
29, 2008 (THE “VOTING AGREEMENT”), COPIES OF EACH OF WHICH MAY BE
OBTAINED FROM THE SECRETARY OF NEXCEN BRANDS, INC. NO TRANSFER OF THE SHARES MAY BE
MADE UNLESS SPECIFIC CONDITIONS OF THE VOTING AGREEMENT ARE SATISFIED.”


 


(b)           THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN 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 7 or in such other manner as
may be permitted by law shall be valid and sufficient service thereof.


 


(c)           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.


 


(d)           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


 


4

















 


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.


(e)           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.


 


(f)            This Agreement
shall terminate automatically upon the sale, transfer or other disposition of
all Company Shares held by the Holders to persons or entities that are not
Affiliates, in compliance with Section 3(b) hereof.  For purposes hereof, the term “Affiliate”
shall mean any other person or entity who directly, or indirectly through one
or more intermediaries, is in control of, is controlled by, or is under common
control with, such Holder.  For purposes
of this definition, control of an entity means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such entity whether by contract, securities ownership or otherwise; and the
terms “controlling” and “controlled” shall have the respective meanings
correlative to the foregoing.


(g)           Each party
hereto shall execute and deliver such additional documents as may be necessary
or desirable to effect the transactions contemplated by this Agreement.


 


(h)           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 8(h) shall be null and
void.


 


[SIGNATURE PAGE FOLLOWS]


 


5

















 


IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Voting Agreement as of the date first written above.


	
   

  	
  NEXCEN BRANDS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert D’Loren

  
	
   

  	
   

  	
  Name:

  	
  Robert D’Loren

  
	
   

  	
   

  	
  Title:

  	
  President and Chief Executive 

  Officer

  



 


Signature Page to Voting Agreement


 

















 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GREAT AMERICAN COOKIE COMPANY 

  FRANCHISING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Ward

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Ward

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GREAT AMERICAN MANUFACTURING, 

  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Ward

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Ward

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
					



 

















 


SCHEDULE I


 


	
  Name
  of Holder

  	
  Address
  for Notices Pursuant to Section 7

  
	
   

  	
   

  
	
  Great
  American Cookie Company Franchising, LLC

  	
  2855
  East Cottonwood Parkway 

  Suite 400 

  Salt Lake City, UT 84121 

  Fax: (801) 736-5944

  
	
   

  	
   

  
	
  Great
  American Manufacturing, LLC

  	
  2855
  East Cottonwood Parkway 

  Suite 400 

  Salt Lake City, UT 84121 

  Fax: (801) 736-5944