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EXHIBIT 10.42
VOTING TRUST AGREEMENT
AGREEMENT made as of the 22nd day of December, 1997, by and
among XXXXXXX X. WORTH, residing at 0000 Xxxx Xxxx Xxxxxxxxx, Xxxx #0, Xxxxxx,
Xxxxxxx 00000-0000, and XXXXXX WORTH, residing at 0000 Xxxxx Xxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx 00000 (together, the "Worths" or "Stockholders"); XXXXXXXX
XXXXXX & XXXXXX ("GM&M"); THE DELICIOUS FROOKIE COMPANY, INC., a Delaware
corporation ("Company"); and XXXXXX XXXXX ("Voting Trustee").
WHEREAS, pursuant to a Common Stock and Option Purchase
Agreement ("Stock and Option Agreement") dated as of December 22, 1997 by and
among the Worths, the Investors listed on Schedule A thereto and The Delicious
Frookie Company, Inc. ("Company"), the Worths are selling, among other things,
Options ("Purchase Options") to purchase an aggregate of 1,000,000 shares of
Common Stock ("Option Shares") owned by them to the Investors; and
WHEREAS, pursuant to an Option Escrow Agreement dated as of
December 22, 1997 among the Worths, the Company, the holders of the Purchase
Options and GM&M, as Escrow Agent, the Worths have deposited the Option Shares
into escrow with GM&M; and
WHEREAS, the parties hereto deem it necessary and advisable
and for their best interests, in order to secure continuity and stability of
policy and management of the Company, to deposit with the Voting Trustee shares
of the capital stock of the Company owned by the Stockholders, including the
Option Shares; and
WHEREAS, the Stockholders have agreed to vest their voting
rights in the Voting Trustee as hereinafter provided; and
WHEREAS, the Voting Trustee has consented to act under this
Agreement for the purposes herein provided.
NOW, THEREFORE, it is mutually agreed as follows:
1. The Stockholders hereby appoint Xxxxxx Xxxxx, and Xxxxxx
Xxxxx hereby accepts such appointment, as the Voting Trustee under the terms and
conditions herein set forth.
2. Simultaneously with the execution of this Agreement the
Stockholders and GM&M have deposited with the Voting Trustee the certificates
for capital stock of the Company set forth opposite their respective names on
Exhibit A attached hereto and made a part hereof. All
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stock certificates so deposited with the Voting Trustee hereunder shall be duly
endorsed for the transfer thereof to the Voting Trustee. Upon receipt by the
Voting Trustee of the certificates for such shares of capital stock, and the
transfer of same into the name of the Voting Trustee, the Voting Trustee shall
hold same, subject to the terms and conditions hereof, and shall thereupon issue
and deliver voting trust certificates to the Stockholders and to GM&M, in the
form annexed hereto as Exhibit B, for the capital stock of the Company deposited
by said Stockholders and GM&M. Voting trust certificates issued in respect of
stock certificates representing the Option Shares shall be issued to GM&M and
voting trust certificates issued in respect of all other stock certificates
shall be issued to the Stockholder that deposited the certificates. All
certificates for capital stock of the Company transferred and delivered to the
Voting Trustee hereunder shall be surrendered to the Company by the Voting
Trustee, and cancelled, and new certificates therefor shall be issued to and
held by the Voting Trustee in the name of "Xxxxxx Xxxxx, as Voting Trustee under
a Voting Trust Agreement dated December 22, 1997."
3. The voting trust certificates shall be transferable at the
office of the Voting Trustee, 00 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxx Xxxx 00000,
or at such other address as the Voting Trustee may from time to time designate
by written notice thereof to the Stockholders and GM&M on the books of the
Voting Trustee. If a voting trust certificate is lost, stolen, mutilated or
destroyed, the Voting Trustee, in his discretion, may issue a duplicate of such
certificate upon receipt of (a) evidence of such fact, satisfactory to him, and
(b) indemnity satisfactory to him.
4. (a) Except as set forth in subparagraph (b) below, the
Voting Trustee shall promptly pay to each Stockholder or GM&M all cash dividends
and/or distributions, if any, received by the Voting Trustee on account of the
underlying shares of capital stock of the Company deposited by said Stockholder
or GM&M hereunder.
(b) If any dividend in respect of the stock deposited
with the Voting Trustee is paid in whole or in part in stock of the Company
having voting power, the Voting Trustee shall likewise hold the certificates for
stock which are received by him on account of such dividend, subject to the
terms of this Agreement, and the holder of each voting trust certificate
representing stock on which said stock dividend has been paid shall be entitled
to receive a voting trust certificate for the number of shares of stock received
as such dividend.
(c) The holders entitled to receive the dividends
provided above shall be those registered as such on the transfer books of the
Voting Trustee at the close of business on
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the day fixed by the Company for the taking of a record to determine those
holders of its stock entitled to receive such dividends.
(d) In lieu of receiving dividends and/or
distributions upon the capital stock of the Company and paying the same to the
holders of the voting trust certificates pursuant to the provisions of
subparagraph (a) above, the Voting Trustee may instruct the Company in writing
to pay same directly to the holders of such voting trust certificates. Upon
receipt of such written instructions, the Company shall pay same directly to the
holders of the voting trust certificates.
5. In the event of the dissolution or total or partial
liquidation of the Company, whether voluntary or involuntary, the Voting Trustee
shall receive the monies, securities, rights or property to which the holders of
the capital stock of the Company deposited hereunder are entitled and shall
distribute the same among the holders of voting trust certificates in proportion
to their interest as shown on the books of the Voting Trustee.
6. In the event that the Company is merged into or
consolidated with another corporation, or if all or substantially all of the
assets of the Company are transferred to another corporation, then, in
connection with such transfer, the term "Company" for all purposes of this
Agreement shall be deemed to include such successor corporation and the Voting
Trustee shall receive and hold under this Agreement any voting stock of such
successor corporation which has been received on account of the capital stock of
the Company held by the Voting Trustee hereunder.
7. The Voting Trustee shall have the exclusive right to vote
all of the shares of capital stock delivered to him hereunder, to give waivers
of notice, or to give written consents in lieu of voting, in person or by proxy,
at any meeting of the stockholders of the Company, for whatever purpose called
in any manner he deems appropriate and in any proceedings, whether at a meeting
of stockholders or otherwise, where the vote or written consent of the
stockholders may be required or authorized by law. The Voting Trustee shall not
be liable for an error in judgment or mistake of law or other mistake, nor for
anything save his own willful misconduct or gross negligence and shall not be
required to give a bond or other security for the faithful performance of his
duties.
8. The Voting Trustee may resign his position as Voting
Trustee by mailing to the registered holders of voting trust certificates a
written resignation, effective 10 days after the mailing thereof. The Voting
Trustee shall have the right at the time of his resignation to designate his
successor as Voting Trustee under this Agreement. Such designation shall be made
by filing
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an instrument of appointment of such successor trustee in the principal office
of the Company, duly executed by the Voting Trustee. In the event that the
Voting Trustee shall die prior to the designation of such successor trustee,
then Xxxxxx Xxxxx, Esq. shall serve as successor Voting Trustee. The rights,
powers and privileges of the Voting Trustee hereunder shall be possessed by the
successor Voting Trustee with the same effect as though such successor had
originally been a party to this Agreement.
9. This Agreement shall commence as of the date hereof and
shall continue in effect until the 22nd day of December, 1999, provided,
however, that in the event that before 5:00 p.m. on December 22, 1999 the Worths
receive an aggregate of $4,000,000 in gross proceeds from sales of securities of
the Company owned by them, including the sales of securities contemplated by the
Stock and Option Agreement and the exercise of the Purchase Options, this
Agreement shall continue until December 22, 2001. Notwithstanding the foregoing,
this Voting Trust Agreement shall terminate with respect to any shares subject
to this Agreement sold solely in public sales pursuant to an effective
registration statement under the Securities Act of 1933 or pursuant to Rule 144
thereunder.
10. Notwithstanding Section 9 above, at any time that any of
the Purchase Options are exercised, GM&M shall be entitled to surrender the
voting trust certificate(s) pertaining to the Option Shares underlying the
Purchase Options so exercised, and upon such surrender the Voting Trustee shall
deliver to GM&M or, at GM&M's direction, to the holder of the Purchase Option so
exercised, a stock certificate or certificates representing the Option Shares
issued upon such exercise, and, in the case of a partial exercise of a Purchase
Option, shall deliver to GM&M a voting trust certificate or certificates
representing the Option Shares underlying the unexercised portion of the
Purchase Option.
11. The Voting Trustee shall serve without any compensation.
12. Any notice or request required or provided hereunder shall
be deemed sufficiently given or made if mailed by certified mail, return receipt
requested, to the party entitled thereto at his or her respective address set
forth above. Said notice shall be deemed given when mailed.
13. This Agreement expresses the entire agreement between the
parties with respect to the subject matter hereof. This Agreement may not be
changed or modified except in a writing executed by all of the parties hereto.
Copies of this Agreement, and of any modification
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or amendment hereunder, shall be filed in the principal office of the Company
and, during reasonable business hours, shall be open to the inspection of any
stockholder of the Company or any beneficiary of the trusts under this
Agreement. All voting trust certificates issued hereunder shall be issued,
received and held subject to all of the terms and conditions hereof. Every
person, firm or corporation entitled to receive voting trust certificates
representing shares of capital stock of the Company, and their transferees and
assigns, upon accepting the voting trust certificates issued hereunder, shall
automatically become a party to and be bound by the provisions of this
Agreement, with the same effect as if he or it had executed the Agreement.
14. This Agreement may be executed in counterparts, each of
which shall be an original and all of which together shall be deemed to be one
and the same instrument.
15. This Agreement and all amendments thereof shall, in all
respects, be governed by and construed and enforced in accordance with the
internal law of the State of Delaware without regard to principles of conflicts
of laws.
16. Should any provisions of this Agreement become legally
unenforceable, no other provision of this Agreement shall be affected, and this
Agreement shall continue as if the Agreement had been executed absent the
unenforceable provision.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
/s/ Xxxxxxx X. Worth
Xxxxxxx X. Worth
/s/ Xxxxxx Worth
Xxxxxx Worth
XXXXXXXX XXXXXX & XXXXXX
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx, Partner
THE DELICIOUS FROOKIE COMPANY, INC.
By: Xxxxxx Xxxxxx
Name:
Title:
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, as Voting Trustee
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EXHIBIT B
THE DELICIOUS FROOKIE COMPANY, INC.
(ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. Shares
This certifies that the undersigned has deposited
________________ shares of the capital stock of THE DELICIOUS FROOKIE COMPANY,
INC., $.____ par value ("Company"), with the Voting Trustee hereinafter named,
under an agreement dated ______________, 1997 with Xxxxxx Xxxxx, Voting Trustee,
the Company, the stockholders thereof and Xxxxxxxx Mollen & Xxxxxx ("GM&M"), as
Escrow Agent under a certain Option Escrow Agreement, dated ___________, 1997,
among Xxxxxxx X. Worth, Xxxxxx Worth, The Delicious Frookie Company, Inc., the
holders of certain Purchase Options and GM&M. This certificate and the interest
represented thereby is transferable only on the books of said Voting Trustee
upon the presentation and surrender hereof. The holder of this certificate takes
the same subject to all the terms and conditions of the aforesaid agreement
between the Voting Trustee, the Company, the stockholders thereof and GM&M, and
becomes a party to said agreement, and is entitled to the benefits thereof.
IN WITNESS WHEREOF, the Voting Trustee has caused this
certificate to be signed this ____ day of ________________, 1997.
_____________________________ ______________________________
Stockholder Voting Trustee
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