Exhibit 2.4
VOTING AGREEMENT
AND IRREVOCABLE PROXY
THIS AGREEMENT is made and entered into as of April 24, 1998 by and between
The Hain Food Group, Inc., a Delaware corporation ("Hain"), and the undersigned
shareholders (the "Shareholders") of Garden of Eatin', Inc. a California
corporation (the "Company").
RECITALS
WHEREAS, Hain and the Company propose to enter into an Agreement and Plan
of Merger (the "Merger Agreement") of even date herewith (capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Merger Agreement), which provides, among other things,
upon the terms and subject to the conditions thereof, that the Company will
merge (the "Merger") with and into a wholly owned subsidiary of Hain to be
formed for the purpose thereof;
WHEREAS, as of the date hereof, each Shareholder is the record and
beneficial owner of the number and class of issued and outstanding shares of
common stock of the Company, par value $.01 per share (the "Company Common
Stock"), set forth opposite such Shareholder's name on the signature page
hereto;
WHEREAS, as a condition to entering into the Merger Agreement, Hain
requires the Shareholders to enter into this Agreement governing the voting and
disposition of such number of shares of Company Common Stock now owned by the
Shareholders (which, as of the date hereof, constitute 100% of the outstanding
Company Common Stock) and so indicated on the signature pages of this Agreement
and which may hereafter be acquired by any of the Shareholders (all of such
shares of Company Common Stock, collectively, the "Company Shares").
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Revocation of Proxies; Agreement to Vote; Grant of Proxy. Each
Shareholder hereby revokes any and all previous proxies with respect to the
Company Shares owned by such Shareholder. Each Shareholder agrees to attend, in
person or by proxy, any meeting of the shareholders of the Company called
pursuant to the Merger Agreement to vote upon approval and adoption of the
Merger Agreement and the Merger, and to vote upon approval and adoption of the
Merger Agreement and the Merger, and to vote such Company Shares owned by the
Shareholder and any voting securities of the Company hereafter issued in
exchange therefor or in respect thereof for approval and adoption of the Merger
Agreement and the Merger in favor of any other matters that are intended to
facilitate and implement the Merger and that are contemplated by the Merger
Agreement, submitted for approval by the written consent or the vote of the
shareholders of the Company at any meeting, or at any adjournment or
adjournments thereof, pursuant to the Merger Agreement. Notwithstanding the
foregoing, effective upon the execution and delivery of this Agreement, each
Shareholder appoints Xxxxx X. Xxxxx and Xxxx Xxxxxxx, and each of them, with
full power of substitution in each, as its attorney and proxy, solely (a) to
vote the Shareholder's Company Shares at any meeting of shareholders of the
Company or any adjournment or adjournments thereof, or (b) to give a consent
with respect to the Shareholder's Company Shares, in each case in
favor of approval and adoption of the Merger Agreement and the Merger and any
other matters that are intended to facilitate and implement the Merger and that
are contemplated by the Merger Agreement. Except as otherwise set forth herein,
this proxy shall not extend to matters other than those specifically enumerated
in this Section 1. This proxy and power of attorney is irrevocable and coupled
with an interest in favor of Hain. This proxy and power of attorney shall be
effective until the date (the "Termination Date") of the earliest to occur of
(i) consummation of the Merger, (ii) termination of the Merger Agreement in
accordance with its terms and (iii) August 31, 1998.
2. Limitation on Disposition or Encumbrance of Shares. Each Shareholder
hereby covenants and agrees that, except as contemplated by this Agreement and
the Merger Agreement, the Shareholder shall not, and shall not offer or agree to
(i) sell, transfer, tender, assign, hypothecate or otherwise dispose of, or
create or permit to exist any security interest, lien, claim, pledge, option,
right of first refusal, agreement, limitation on such Shareholder's voting
rights, charge or other encumbrance of any nature whatsoever with respect to the
Company Shares, (ii) tender any shares of Company Common Stock pursuant to any
tender offer or exchange offer, or (iii) grant any person a proxy or other right
to vote or direct the vote of any shares of Company Common Stock.
3. No Solicitation. (a) Each of the Shareholders agrees that it shall not,
directly or indirectly, (i) solicit, initiate or knowingly facilitate or
encourage (including by way of furnishing or disclosing nonpublic information)
any inquiries or the making of any offer or proposal by any corporation,
partnership, trust, person or other entity or group (a "Third Party") with
respect to, or that could reasonably be expected to lead to, an Acquisition
Transaction or (ii) negotiate, explore or otherwise communicate in any way with
any Third Party with respect to any Acquisition Transaction or enter into,
approve or recommend any agreement, arrangement or understanding requiring it to
abandon, terminate or fail to consummate the Merger or any other transactions
contemplated by this Agreement. The parties hereto agree and acknowledge that
nothing in this Section 3 or any other part of this Agreement shall be construed
as requiring any Shareholder or affiliate thereof who also is a director of the
Company to propose, endorse, approve or recommend the Merger or any transaction
contemplated thereby (or otherwise participate in any action that is permitted
under the terms of Sections 8.1(b), 8.6 and 10.1(f) of the Merger Agreement), in
each case in such Shareholder's or affilate's capacity as a director of the
Company in any manner inconsistent with his or her fiduciary duties as director.
(b) Each of the Shareholders shall (i) promptly notify the other party of
receipt by it of any inquiries, proposals or offers with respect to an
Acquisition Transaction or any request for nonpublic information relating to the
Company in connection with an Acquisition Transaction or for access to the
Company's or any of its subsidiaries' properties, books or records by any third
party that informs its Board of Directors that such third party is considering
making, or has made, a proposal or offer with respect to an Acquisition
Transaction, and (ii) immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing, and it will take the necessary steps to
inform such individuals or entities of the obligations undertaken in this
Section 3.
4. Legend on Certificates. The certificate(s) evidencing the Company Shares
shall, prior to any transfer of such certificates, be endorsed with a
restrictive legend substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED AS OF APRIL , 1998 BETWEEN THE REGISTERED HOLDER HEREOF AND
THE HAIN FOOD GROUP, INC. ("HAIN"), A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF HAIN. THE HOLDER OF THIS CERTIFICATE, BY ITS ACCEPTANCE
HEREOF, AGREES TO BE BOUND BY ALL THE TERMS OF SUCH AGREEMENT, AS THE SAME
IS IN EFFECT FROM TIME TO TIME.
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5. Representations and Warranties of the Shareholders. Each Shareholder
hereby severally, and not jointly, represents and warrants with respect to
itself and its ownership of the Company Shares to Hain as follows:
(a) Authority Relative to this Agreement. The Shareholder has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Shareholder and the
consummation by the Shareholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary partnership or corporate
action on the part of the Shareholder, if applicable. This Agreement has been
duly and validly executed and delivered by the Shareholder and, assuming the due
authorization, execution and delivery by Hain, constitutes a legal, valid and
binding obligation of the Shareholder, enforceable against the Shareholder in
accordance with its terms, except that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting creditors' rights generally.
(b) No Conflict. The execution and delivery of this Agreement by the
Shareholder does not, and the performance of this Agreement by the Shareholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to any governmental or regulatory authority,
domestic or foreign, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Shareholder or by which any property
or asset of the Shareholder is bound, or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance of any nature whatsoever on any property or asset of the
Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Shareholder is a party or by which the Shareholder or any property
or asset of the Shareholder is bound, in each case, except as would not
materially impair the ability of the Shareholder to perform hereunder.
(c) Title to the Company Shares. The Company Shares owned by the
Shareholder as identified on the signature pages hereto are all the securities
of the Company owned, either of record or beneficially, by the Shareholder. The
Shareholder owns all such shares of Company Common Stock free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Shareholder's voting rights, charges and other
encumbrances of any nature whatsoever, and, except pursuant to this Agreement,
the Shareholder has not appointed or granted any proxy, which appointment or
grant is still effective, with respect to any of the Company Shares.
6. Representations and Warranties of Hain. Hain hereby represents and
warrants to the Shareholders that Hain has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement by Hain has been duly
authorized by all necessary corporate action on the part of Hain. This Agreement
has been duly and validly executed and delivered by Hain and, assuming the due
authorization, execution and delivery by the Shareholders, constitutes a legal,
valid and binding obligation of Hain enforceable in accordance with its terms,
except that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting creditors' rights generally.
7. Certain Events. Each shareholder agrees that, in the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of the Company affecting the Company Common Stock, or
the acquisition of additional shares of Company Common Stock by the Share-
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holder, this Agreement and the obligations hereunder shall attach to any
additional shares of Company Common Stock or other voting securities of the
Company issued to or acquired by the Shareholder. In the event of a stock
dividend or distribution, or any change in Company Common Stock by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares or
the like, the term "Company Shares" shall be deemed to refer to and include the
Company Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Company Shares may be changed
or exchanged.
8. Miscellaneous.
(a) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof without the requirement for posting of
a bond, in addition to any other remedy to which a party may be entitled at law
or in equity.
(b) Entire Agreement. This Agreement, including the documents and
instruments referred to herein, embodies the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements and understandings among the parties with
respect thereto. There are no representations, promises, warranties, covenants
or undertakings by any party, other than those expressly set forth or referred
to herein and therein.
(c) Assignment; Third Party Beneficiaries. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties. This Agreement is not intended to confer any rights or remedies
hereunder upon any third party.
(d) Amendment and Modification; Waiver. This Agreement may be amended,
modified or supplemented only by written agreement signed by the parties hereto.
Any extension of time or waiver of any provision hereof shall only be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby. Any waiver or failure to insist upon strict compliance with any
provision hereof shall not operate as a waiver of, or estoppel with respect to,
any subsequent or other failure.
(e) Severability. The validity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
(f) Notices. (i) Any notice or communication to any party hereto shall be
duly given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), facsimile or overnight air
courier guaranteeing next day delivery, to such other party's address.
(A) If to Hain:
The Hain Food Group, Inc.
00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: President
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(B) If to the Company:
Garden of Eatin', Inc.
c/o Arrowhead Xxxxx, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Operating Officer
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Facsimile No.: (713) 758-2346-
Attention: J. Xxxx Xxxxx, Esq.
(C) If to any Shareholder, at the address set forth in the signature page
hereof.
(ii) All notices and communications will be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, if mailed; when sent, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
(g) Time of the Essence. The parties hereto agree that time is of the
essence in the performance of all obligations hereunder.
(h) Headings. The underlined headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be part of this Agreement
and shall not be referred to in connection with the construction or
interpretation of this Agreement.
(i) Governing Law. This Agreement shall be construed in accordance with,
the governed in all respects by, the laws of the State of New York without
regard to principles of conflicts of laws.
(j) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, and all of which, when taken together, shall
constitute one agreement.
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(k) Waiver. (i) No failure on the part of any person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right
privilege or remedy. (ii) No person shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not bee applicable
or have any effect except in the specific instance in which it is given.
(l) Severability. In the event that any provision of this Agreement, or the
application of such provision to any person or set of circumstances, shall be
determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
(m) Further Assurances. Each party hereto shall execute and cause to be
delivered to each other party hereto such Instruments and other documents, and
shall take such other actions, as such other party may reasonably request for
the purpose of carrying out or evidencing any of the transactions contemplated
by this Agreement.
(n) Attorney's Fees. If any action or proceeding relating to this Agreement
or the enforcement of any provision of this Agreement is brought against any
party hereto, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
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VOTING AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, Hain and the Shareholders have duly executed this
Agreement, as of the date first written above.
THE HAIN FOOD GROUP, INC.
By: /s/ Xxxxx X.Xxxxx
-----------------
Name: Xxxxx X. Xxxxx
Title: President & CEO
% OF
NUMBER OF OUTSTANDING
COMPANY SHARES COMPANY
SHAREHOLDERS: OWNED: COMMON STOCK:
------------- -------------- -------------
TSG2 L.P. 11,000 55%
By: TSG2 Management, L.L.C.,
its general partner
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Address:
/s/ Xx X. Xxxxxxxx 9,000 45%
------------------ ------ ----
Name: Xx X. Xxxxxxxx
Address:
Total 20,000 100%
------ ----
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