VOTING AGREEMENT
Exhibit 4.3
THIS VOTING AGREEMENT (this “Agreement”), dated as of August 26, 2010, is between
Bakers Footwear Group, Inc., a Missouri corporation (the “Company”), Xxxxx X. Xxxxxx
(“Edison”) and Xxxxxx Xxxxxx, Ltd., a Delaware corporation (the “Investor”).
Background
The Company and the Investor are entering into a Debenture and Stock Purchase Agreement (the
“Purchase Agreement”) dated as of August 26, 2010 (the “Effective Date”), pursuant to which
the Company desires to sell to the Investor and the Investor desires to purchase from the Company
shares of the Company’s Common Stock, $0.0001 par value per share (the “Common Stock”), and
notes in the aggregate principal amount of $5,000,000. A condition to the Company’s obligations
under the Purchase Agreement is that the Investor enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are acknowledged, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Definitions.
(a) “Affiliate” shall mean any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
(b) “Matter” shall mean any item that comes before the holders of Voting Securities at a
regular, annual, or special meeting, or any adjournment thereof, of holders of Voting Securities,
or that comes before them by written consent, whether for majority, plurality, unanimous or other
vote, and whether or not duly announced by notice or agenda. “Matter” shall include, but not be
limited to: the election of directors, the calling, postponement, or adjournment of meetings; the
sale of the Company’s stock or assets; any merger, consolidation, dissolution, liquidation or
business combination of the Company; the adoption of amendments to the Company’s articles of
incorporation or bylaws; any change in the authorized capital structure of the Company or of the
classes or series of shares authorized or of the rights, privileges and preferences thereof; the
issuance of debt securities of the Company; the adoption of any employee benefit or incentive plan,
the selection or approval of independent public accountants, or the execution of a loan or line of
credit agreement by the Company.
(c) The Investor shall be deemed to “Own” or to have acquired “Ownership” of or to be the
“Owner” of a security if such Investor or an Affiliate of the Investor: (i) is the record owner of
such security; or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security.
(d) “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company or trust.
(e) “Voting Securities” shall mean all shares of Common Stock and any other securities of the
Company or any of its successors entitled to vote generally in the election of directors, and
securities exercisable for and convertible into such securities, in each case now or hereafter
outstanding, that are Owned by the Investor.
2. Voting. With respect to all Matters, the Investor will vote (or cause to be voted)
all Voting Securities in the same manner as Xxxxx X. Xxxxxx. As soon as reasonably practicable
prior to a regular, annual, or special meeting of holders of Voting Securities in which a Matter
will come before such holders (including by written consent), Xxxxx X. Xxxxxx shall notify Investor
(by means of communication which shall be in Xxxxx X. Xxxxxx’x sole discretion and may include,
without limitation, electronic mail) how Xxxxx X. Xxxxxx intends to vote with respect to each such
Matter.
3. Term. The term of this Agreement shall commence on the Effective Date and shall
remain in full force and effect until the earlier of the date that (a) Xxxxx X. Xxxxxx is no longer
Chief Executive Officer of the Company and (b) Investor no longer Owns any Voting Securities.
4. Remedies.
(a) Irrevocable Proxy. The Investor hereby constitutes and appoints Xxxxx X. Xxxxxx,
acting solely in his individual capacity, with full power of substitution, as the proxy of Investor
with respect to the matters set forth herein, and hereby authorizes him to represent and to vote,
if and only if the Investor (i) fails to vote (including, without limitation, due to Xxxxx X.
Xxxxxx’x failure or inability, due to reasonable circumstances, to timely deliver the notice
required by Section 2) 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, all of such Investor’s Voting
Securities in accordance with the terms and provisions 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 expires. The Investor hereto hereby revokes any and all previous proxies with respect to
the Voting Securities and shall not hereafter, unless and until this Agreement expires, purport to
grant any other proxy or power of attorney with respect to any of the Voting Securities, deposit
any of the Voting Securities 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 Voting Securities, in each
case, with respect to any of the matters set forth herein.
(b) Specific Enforcement. The Investor acknowledges and agrees that the Company will
be irreparably damaged in the event any of the provisions of this Agreement are not performed by
the Investor in accordance with their specific terms or are otherwise breached. Accordingly, it is
agreed that the Company 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.
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(c) Remedies Cumulative. All remedies, either under this Agreement or by law or
otherwise afforded to any party, shall be cumulative and not alternative.
5. Miscellaneous.
(a) Amendments, Waivers, Etc. This Agreement may not be amended or otherwise
modified, except by a written document executed by the parties hereto.
(b) Transfers. Except as contemplated in the Purchase Agreement and that certain
Registration Rights Agreement of even date herewith between the Investor and the Company (the
“Registration Rights Agreement”), the Investor agrees that until this Agreement ceases to be a
binding obligation of the Investor or its permitted successors and assigns, it will not Transfer
(as such term is defined in the Purchase Agreement) in any one transaction or series of
transactions to a single transferee or group of transferees known to the Investor to be affiliated,
any Voting Securities constituting 5% or more of the then outstanding total number of issued and
outstanding shares of Common Stock, unless each transferee executes and delivers to the Company an
agreement in the form reasonably satisfactory to the Company which binds such transferee to the
obligations of the Investor under this Agreement.
(c) Successors and Assigns; Assignment. 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. Notwithstanding the foregoing, no party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of the other parties
hereto, except that if the Investor Transfers any Voting Securities to an Affiliate in accordance
with the Purchase Agreement, the Investor may assign its rights, interests and obligations
hereunder to any of such Affiliate, provided that the Investor also complies with Section 5(b) of
this Agreement.
(d) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any such
provision is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any
other provision in such jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(e) Legend on Share Certificates. Each certificate representing the Common Stock
issued to the Investor shall be endorsed by the Company with a legend reading substantially as
follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT, AS MAY BE AMENDED
FROM TIME TO TIME, (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE
COMPANY), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH
INTEREST MAY BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
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THAT VOTING AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET
FORTH THEREIN.”
The Company, by its execution of this Agreement, agrees that it will cause the certificates
evidencing the Common Stock issued to the Investor to bear the legend required by this Section
5(e), and it shall supply, free of charge, a copy of this Agreement to any holder of a certificate
evidencing such shares upon written request from such holder to the Company at its principal
office. The parties to this Agreement do hereby agree that the failure to cause the certificates
evidencing the Common Stock to bear the legend required by this Section 5(e) herein and/or the
failure of the Company to supply, free of charge, a copy of this Agreement as provided hereunder
shall not affect the validity or enforcement of this Agreement.
(f) Governing Law. This Agreement shall governed by and be construed in accordance
with the substantive laws of the State of Missouri applicable to contracts executed and performed
entirely within the state by Missouri, without reference to its choice of law rules.
(g) Consult with Investor. Each of the Company, Edison and Investor shall cooperate
fully with one another to achieve the timely filing of any Schedule 13D that may be required and
any required amendments to any such Schedule, and each party shall be responsible for the
completeness and accuracy of the information concerning such party contained therein, but shall not
be responsible for the completeness or accuracy of the information concerning the other party
contained therein. Edison or the Company shall provide the Investor with the contents of any
proposed filing with the Commission that describes or refers to this Agreement, including but not
limited to Schedule 13D and any amendments thereto, at least two Business Days prior to its filing
with Commission, and shall obtain the Investor’s consent with respect to such filing, which consent
shall not be unreasonably withheld, delayed or conditioned.
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be duly executed
as of the day and year first above written.
| BAKERS FOOTWEAR GROUP, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| XXXXXX XXXXXX LTD. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Voting Agreement]
