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EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of September 9, 1998 (the "AGREEMENT"),
is between XXXXXXXX X. FIELD (the "STOCKHOLDER") and the entities listed on the
signature page hereto ("BUYERS").
WHEREAS, Buyers, Silverado Foods, Inc. ("PARENT") and Mom's Best
Services, a Florida corporation and a wholly owned subsidiary of Parent
("EXISTING SUB"), have entered into the Agreement of Stock Purchase and Sale,
dated as of August 14, 1998 (the "STOCK PURCHASE AGREEMENT"), providing for,
among other things, the acquisition by Buyers of ninety percent (90%) of the
capital stock of Existing Sub owned by Parent (the "SUBSIDIARY SHARES"), such
acquisition on the terms and subject to the conditions set forth in the Stock
Purchase Agreement;
WHEREAS, it is a closing condition to the Stock Purchase Agreement that
all consents and approvals from Parent's stockholders which are required for the
consummation of the transactions contemplated under the Stock Purchase Agreement
shall have been obtained;
WHEREAS, as of the date hereof, the Stockholder is the Beneficial Owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of 4,874,171 shares (the "SHARES") of Common Stock, par
value $.01 per share, of Parent (the "PARENT COMMON STOCK"); and
WHEREAS, Buyers have required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows (all capitalized terms used
in this Agreement and not specifically defined shall have the meanings set forth
in the Stock Purchase Agreement):
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 The Stockholder is the holder and beneficial owner of the Shares,
free and clear of any liens, pledges, security interests, adverse claims,
equities, options, proxies, charges, encumbrances or restrictions of any nature.
The Stockholder does not own, either beneficially or of record, any shares of
capital stock of Parent, other than the Shares. As of the date of this Agreement
and at any meeting of the stockholders of Parent held during the term of this
Agreement, subject to the limitations imposed by Sections 1145-1155 of the
Oklahoma General Corporation Act (the "CONTROL SHARE LIMITS"), the Stockholder
has and shall have the ability to vote all the Voting Shares (as defined below)
in accordance with Article 2 of this Agreement. Except as provided in this
Agreement, the Stockholder has not appointed or granted any proxy or entered
into a voting agreement, which appointment, agreement or grant is still
effective, with respect to any of the Voting Shares.
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1.2 This Agreement (i) is duly and validly executed on behalf of the
Stockholder, and (ii) constitutes the valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors, and to rules of law governing specific performance,
injunctive relief and other equitable remedies.
ARTICLE 2
VOTING OF SHARES
2.1 VOTING AGREEMENT. The Stockholder hereby agrees, during the time
this Agreement is in effect, (a) at any meeting of the stockholders of Parent to
consider and vote upon the Stock Purchase Agreement and the transactions
contemplated by the Stock Purchase Agreement, including, without limitation, the
Contribution and the sale of the Subsidiary Shares to Buyers and any other
matter in connection therewith, subject to the Control Share Limits, to appear,
or cause the holder of record of the Voting Shares on the applicable record date
(the "RECORD HOLDER") to appear, in person or by proxy, at any annual or special
meeting of stockholders of Parent (and every adjournment or postponement
thereof) for the purpose of obtaining a quorum; (b) to vote, or cause the Record
Holder to vote, in person or by proxy, at a meeting or by written consent in
lieu of a meeting or otherwise, all of the shares of the Parent Common Stock
owned or with respect to which the Stockholder has or shares voting power and
shares of Parent Common Stock which shall, or with respect to which voting power
shall, hereafter be acquired by the Stockholder (collectively, the "VOTING
SHARES") in favor of the Stock Purchase Agreement (as in effect on the date
hereof) and the transactions contemplated by the Stock Purchase Agreement
(including, without limitation, the Contribution and sale of the Shares to
Buyers contemplated thereby); (c) to vote, or cause the Record Holder to vote at
a meeting or by written consent in lieu of a meeting or otherwise, the Voting
Shares against any action, proposal or agreement that could reasonably be
expected to result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of Parent under the Stock
Purchase Agreement (it being understood that, for purposes of determining such
breach, all materiality qualifications to such representations and warranties
shall be disregarded), or which could reasonably be expected to result in any of
the conditions to Parent's obligations under the Stock Purchase Agreement not
being fulfilled; and (d) to vote, or cause the Record Holder to vote at a
meeting or by written consent in lieu of a meeting or otherwise, such Voting
Shares against: (i) any extraordinary corporate transaction (other than the
transactions contemplated by the Stock Purchase Agreement), such as a merger,
consolidation, business combination, reorganization, recapitalization or
liquidation involving Parent or any of its Subsidiaries (including, without
limitation, Existing Sub); (ii) a sale or transfer of a material amount of the
assets of Parent or any of its Subsidiaries (including, without limitation,
Existing Sub) relating to the Business to any Person other than as contemplated
by the Stock Purchase Agreement; and (iii) a sale, transfer or any similar
disposition of, including, without limitation, any distribution to any
stockholder of Parent of, shares of stock of Existing Sub. The Stockholder
acknowledges receipt and review of a copy of the Stock Purchase Agreement.
Notwithstanding any other provision of this Section 2.1, the provisions of such
Section shall not prohibit or restrain the Stockholder from complying with his
fiduciary obligations as a director or officer of Parent.
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2.2 IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to Buyers a proxy in the form
attached hereto as Exhibit A (the "PROXY"), which shall be irrevocable to the
fullest extent permitted by law, with respect to the Voting Shares, and shall be
deemed to be coupled with an interest. The Stockholder understands and agrees
that such proxy shall be used in the event that the Stockholder fails or is
unable to vote the Voting Shares in accordance with Article 2.
2.3 NO INCONSISTENT AGREEMENTS. The Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the Stock Purchase
Agreement, the Stockholder shall not deposit any of the Voting Shares into a
voting trust, or enter into any voting agreement or grant a proxy or power of
attorney with respect to the Voting Shares which is inconsistent with this
Agreement.
2.4 NON-SOLICITATION. The Stockholder agrees that, for the term of this
Agreement, the Stockholder shall not, directly or indirectly, and the
Stockholder shall ensure that his representatives do not, directly or
indirectly: (a) solicit, initiate, encourage or induce the making, submission or
announcement of any Acquisition Proposal or Acquisition Transaction (as such
terms are defined in the Stock Purchase Agreement) or take any action that could
reasonably be expected to lead to an Acquisition Proposal or Acquisition
Transaction; (b) furnish any information regarding Existing Sub or Parent to any
person or entity in connection with an Acquisition Proposal or Acquisition
Transaction; or (iii) engage in discussions with any person or entity with
respect to any Acquisition Proposal or Acquisition Transaction. The Stockholder
shall immediately cease and discontinue, and the Stockholder shall ensure that
his representatives immediately cease and discontinue, any existing discussions
with any person or entity that relate to any Acquisition Proposal or Acquisition
Transaction.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 TRANSFER OF TITLE.
(a) The Stockholder hereby covenants and agrees that the Stockholder
will not, prior to the termination of this Agreement, either directly or
indirectly, offer, agree or otherwise sell, assign, pledge, hypothecate,
encumber, transfer, exchange, or dispose of any Voting Shares, any options or
warrants to purchase any shares of Parent Common Stock, or any securities or
rights convertible into or exchangeable for shares of Parent Common Stock, owned
either directly or indirectly by the Stockholder or with respect to which the
Stockholder has the power of disposition, whether now or hereafter acquired,
without the prior written consent of Buyers.
(b) The Stockholder hereby agrees and consents to the entry of stop
transfer instructions with Parent's transfer agent against the transfer of any
Voting Shares consistent with the terms of this Section 3.1.
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ARTICLE 4
MISCELLANEOUS
4.1 TERMINATION. This Agreement shall terminate upon the earliest to
occur of (a) the termination of the Stock Purchase Agreement in accordance with
its terms pursuant to Article XI of the Stock Purchase Agreement, or (b) the
consummation of the transactions contemplated by the Stock Purchase Agreement in
accordance with its terms.
4.2 ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to specific
performance of the terms and provisions hereof in addition to any other remedy
to which they are entitled at law or in equity.
4.3 ASSIGNMENT. This Agreement and all obligations of the Stockholder
hereunder are personal to the Stockholder and may not be transferred or assigned
by the Stockholder at any time. Buyers may assign their respective rights under
this Agreement to their respective affiliates at any time.
4.4 SUCCESSORS AND AFFILIATES. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective heirs,
legal representatives and assigns. If the Stockholder shall acquire ownership
of, or voting power with respect to, any additional Voting Shares in any manner,
whether by the exercise of any Options or any securities or rights convertible
into or exchangeable for Parent Common Stock, operation of law or otherwise,
such Voting Shares shall be held subject to all of the terms of this Agreement,
and by taking and holding such Voting Shares, the Stockholder shall be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement. Without limiting the foregoing, the
Stockholder specifically agrees that the obligations of the Stockholder
hereunder shall not be terminated by operation of law, whether by the death or
incapacity of the Stockholder or otherwise.
4.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between Buyer and the Stockholder with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between Buyer and the Stockholder with respect to the subject matter hereof.
4.6 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed by the parties hereof.
4.7 WAIVERS. No failure on the part of Buyers to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Buyers in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Buyers shall not be deemed to have waived any claim arising
out of this Agreement,
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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 party; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
4.8 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
4.9 NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
and shall be effective upon receipt, if delivered personally, mailed by
registered or certified mail (or postage prepaid, return receipt requested) to
the parties at the following address (or at such other address for a party as
shall be specified by like changes of address) or sent by electronic
transmission (provided that a confirmation copy is sent by another approved
means) to the telecopier number specified below:
If to the Stockholder, to the Stockholder at:
Xxxxxxxx X. Field
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Telephone:
Facsimile:
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxx Tower
00 Xxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: R. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Buyers, at:
Xxxxxxx Xxxx Capital Fund, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4.10 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Oklahoma regardless of the laws
that might otherwise govern under applicable principles of conflicts of law.
4.11 FURTHER ASSURANCES. The Stockholder shall execute and/or cause to
be delivered to Buyers or Existing Sub such instruments and other documents and
shall take such other actions as Buyers may reasonably request to effectuate the
intent and purposes of this Agreement.
4.12 SURVIVAL. The representations and warranties contained in this
Agreement shall survive the consummation of the transactions contemplated in the
Stock Purchase Agreement.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be duly executed on the date hereof.
STOCKHOLDER:
/s/ Xxxxxxxx X. Field
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Name: Xxxxxxxx X. Field
BUYERS:
XXXXXXX XXXX CAPITAL FUND, L.P.
By Xxxxxxx Pace Capital LLC,
its General Partner
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Manager
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SPC GP FUND, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Manager
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SPC EXECUTIVE ADVISORS FUND, LLC
By: /s Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Manager
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LIMITED IRREVOCABLE PROXY
The undersigned stockholder of SILVERADO FOODS, INC. ("PARENT"), hereby
irrevocably appoints XXXXXXX XXXX CAPITAL FUND, L.P., SPC GP FUND, LLC and SPC
EXECUTIVE ADVISORS FUND, LLC (collectively, "BUYERS"), and each of them, the
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote the shares of capital stock of Parent which the
undersigned is entitled to vote at any meeting of the stockholders of Parent
(and every adjournment or postponement thereof) or by written consent in lieu of
such a meeting or otherwise, which shares are listed below and any and all other
shares of capital stock of Parent acquired by the undersigned (or which the
undersigned is otherwise entitled to vote) on or after the date hereof
(collectively, the "VOTING SHARES"), but only with respect to: (a) the Agreement
of Stock Purchase and Sale by and among Parent, Buyers and Mom's Best Services,
a wholly owned subsidiary of Parent (the "STOCK PURCHASE AGREEMENT"), (b) the
transactions contemplated by the Stock Purchase Agreement; (c) any action,
proposal or agreement that could reasonably be expected to result in a breach in
any material respect of any covenant, representation or warranty or any other
obligation of Parent under the Stock Purchase Agreement (it being understood
that, for purposes of determining such breach, all materiality qualifications to
such representations and warranties shall be disregarded), or which could
reasonably be expected to result in any of the conditions to Parent's
obligations under the Stock Purchase Agreement not being fulfilled; and (d) any
extraordinary corporate transaction (other than the transactions contemplated by
the Stock Purchase Agreement), such as a merger, consolidation, business
combination, reorganization, recapitalization or liquidation involving Parent or
any of its subsidiaries; (e) a sale or transfer of a material amount of the
assets of Parent or any of its subsidiaries relating to Parent's Nonni's
biscotti business to any person or entity other than as contemplated by the
Stock Purchase Agreement; and (f) a sale, transfer or any similar disposition
of, including, without limitation, any distribution to any stockholder of Parent
of, shares of stock of Mom's Best Services. This Proxy shall be in effect until
the earlier of: (a) the termination of the Stock Purchase Agreement in
accordance with its terms pursuant to Article XI of the Stock Purchase
Agreement, or (b) the consummation of the transactions contemplated by the Stock
Purchase Agreement in accordance with its terms. Upon the execution hereof, all
prior proxies given by the undersigned with respect to the Voting Shares, if
any, are hereby revoked, but only to the extent that they relate to the matters
identified herein. This proxy is irrevocable and is granted in connection with
that certain Voting Agreement dated as of even date herewith, executed by the
undersigned stockholder in favor of Buyers. The attorneys and proxies named
above will be empowered at any time prior to the termination of the Stock
Purchase Agreement (i) to exercise all voting and other rights of the
undersigned with respect to the Voting Shares, if any (including, without
limitation, the power to execute and deliver written consents with respect to
the Voting Shares, if any), but only with respect to the matters identified
herein, at every meeting of the stockholders of Parent (and every adjournment or
postponement thereof) or by written consent in lieu of such a meeting, or
otherwise, and (ii) to vote the Voting Shares in favor of approval of the Stock
Purchase Agreement and the transactions contemplated therein. Notwithstanding
anything contained herein to the contrary, this proxy shall not grant to any
party the right to vote on, and the undersigned shall retain all rights to vote
with respect thereto, the matters set forth in Schedule 7.2 of the Stock
Purchase Agreement, other than the first item set forth in such Schedule.
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Any obligation of the undersigned pursuant to this Proxy shall be binding upon
the successors and assigns of the undersigned.
Dated August ___, 1998 STOCKHOLDER
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Xxxxxxxx X. Field
SHARES WHICH STOCKHOLDER
IS ENTITLED TO VOTE
_____________________________shares
of Common Stock of Parent
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AGREEMENT OF STOCK PURCHASE AND SALE
BY AND AMONG
SILVERADO FOODS, INC.
MOM'S BEST SERVICES, INC.
AND
THE PARTIES LISTED ON EXHIBIT A ATTACHED HERETO
DATED AS OF AUGUST 14, 1998
