1
EXHIBIT 4.7
VOTING AGREEMENT AND IRREVOCABLE PROXY
This Voting Agreement And Irrevocable Proxy (the "Agreement") is made
and entered into as of the 16th day of March, 1999 by and among Xxxxxxxx Coffee,
Inc., a Delaware corporation ("Xxxxxxxx Coffee"), D.C.H., L.P., a California
limited partnership ("DCH"), Xxxxx Xxxxx, an individual ("Churm"), Xxxxxx X.
Xxxxxxxx, an individual ("Xxxxxxxx"), Xxxxxxxx Xxxxxxx, an individual
("Goelman"), Xxxx X. Xxxxxxxx, an individual ("Heeschen"), Xxxx X. Xxxxxx, an
individual ("Xxxxxx"), Xxxxxxx X. Xxxx, an individual ("Xxxx"), and Second Cup
USA Holdings Ltd., a corporation organized under the laws of Ontario, Canada
("Second Cup").
WHEREAS, Xxxxxxxx Coffee, CP AcquisitionCorp., a Delaware corporation
and wholly-owned subsidiary of Xxxxxxxx Coffee ("Newco") and Coffee People,
Inc., an Oregon corporation ("Coffee People") have entered into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement") providing for the
merger of Newco with and into Coffee People (the "Merger");
WHEREAS, DCH, Churm, Diedrich, Goelman, Xxxxxxxx, Xxxxxx and Xxxx are
shareholders of Xxxxxxxx Coffee (individually referred to herein as a "Xxxxxxxx
Shareholder" and collectively as the "Xxxxxxxx Shareholders");
WHEREAS, each of the Xxxxxxxx Shareholders owns, of record and
beneficially, the number of shares of Xxxxxxxx Coffee common stock indicated
next to such Xxxxxxxx Shareholder's name on Exhibit A attached hereto (all such
shares being referred to herein as the "Xxxxxxxx Shares");
WHEREAS, Second Cup is a shareholder of Coffee People;
WHEREAS, Second Cup owns, of record and beneficially, the number of
shares of Coffee People common stock indicated next to Second Cup's name on
Exhibit B attached hereto (all such shares being referred to herein as the
"Coffee People Shares");
WHEREAS, pursuant to Section 5.1 of the Merger Agreement, the Merger
Agreement must be approved and adopted by the requisite vote of Xxxxxxxx, Newco
and Coffee People prior to the consummation of the Merger; and
WHEREAS, all of the parties hereto desire to have the Merger consummated
and each of the parties shall receive direct and substantial consideration as a
result of the consummation of the transactions contemplated by the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the parties
hereto hereby agree as follows:
2
1. Agreement to Vote and Irrevocable Proxy by the Xxxxxxxx
Shareholders.
1.1 Agreement to Vote. Each Xxxxxxxx Shareholder hereby agrees
that at any meeting of the shareholders of Xxxxxxxx Coffee, however called, such
Xxxxxxxx Shareholder shall vote all such Xxxxxxxx Shareholder's Shares (i) in
favor of the Merger, the Merger Agreement and the transactions contemplated
therein, with such modifications to the Merger Agreement as the parties thereto
may make; and (ii) against any action or agreement that would result in a breach
of any covenant, representation, warranty or any other obligation of Xxxxxxxx
Coffee or Newco under the Merger Agreement.
1.2 Irrevocable Proxy. Each Xxxxxxxx Shareholder hereby
constitutes and appoints Second Cup which shall act by and through Xxxxxxx
Xxxxxxx or Xxxxx X. Xxxxx (each, a "Proxy Holder"), and each of them, with full
power of substitution, his or its true and lawful proxy and attorney-in-fact to
vote at any and all meetings of the shareholders of Xxxxxxxx Coffee, whether
annual or special, including, without limitation, the meeting of shareholders of
Xxxxxxxx Coffee referred to in Section 4.7(b) of the Merger Agreement, and at
any adjournment or adjournments or postponements of any such meetings, such
Xxxxxxxx Shares owned by such Xxxxxxxx Shareholder, in favor of the Merger, the
Merger Agreement and the transactions contemplated thereby, with such
modifications to the Merger Agreement as the parties thereto may make. Such
proxy shall be limited strictly to the power to vote such Xxxxxxxx Shares in the
manner set forth in the preceding sentence and shall not extend to any other
matters.
The proxy and power of attorney granted herein 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 all
prior proxies granted by each Xxxxxxxx Shareholder. Each Xxxxxxxx Shareholder
shall not grant any proxy to any person which conflicts with the proxy granted
herein, and any attempt to do so shall be void. The power of attorney granted
herein is a durable power of attorney and shall survive the disability or
incompetence of each Xxxxxxxx Shareholder.
In the event that any Xxxxxxxx Shareholder fails for any reason to vote
his or its Xxxxxxxx Shares in accordance with the requirements of Section 1.1
hereof, then the Proxy Holder shall have the right to vote such shares at any
meeting of the Xxxxxxxx shareholders in accordance with the provisions of this
Section 1.2. The vote of the Proxy Holder shall control in any conflict between
its vote of such Xxxxxxxx Shares and a vote by the Xxxxxxxx Shareholder of such
Xxxxxxxx Shares.
2. Agreement to Vote and Irrevocable Proxy by Second Cup.
2.1 Agreement to Vote. Second Cup hereby agrees that at any
meeting of the shareholders of Coffee People, however called, Second Cup shall
vote all of Second Cup's Coffee People Shares (i) in favor of the Merger, the
Merger Agreement and the transactions contemplated therein, with such
modifications to the Merger Agreement as the parties thereto may make; and (ii)
against any action or agreement that would result in a breach of any covenant,
representation, warranty or any other obligation Coffee People under the Merger
Agreement.
2
3
2.2 Irrevocable Proxy. Second Cup hereby constitutes and
appoints Xxxxxxxx Coffee which shall act by and through Xxxxxxx X. Xxxx or Xxx
X. Xxxxx (each, a "Proxy Holder"), and each of them, with full power of
substitution, its true and lawful proxy and attorney-in-fact to vote at any and
all meetings of the shareholders of Coffee People, whether annual or special,
including, without limitation, the meeting of shareholders of Coffee People
referred to in Section 4.7(a) of the Merger Agreement, and at any adjournment or
adjournments or postponements of any such meetings, such Coffee People Shares
owned by Second Cup, in favor of the Merger, the Merger Agreement and the
transactions contemplated thereby, with such modifications to the Merger
Agreement as the parties thereto may make. Such proxy shall be limited strictly
to the power to vote the Coffee People Shares in the manner set forth in the
preceding sentence and shall not extend to any other matters.
The proxy and power of attorney granted herein 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 all
prior proxies granted by Second Cup. Second Cup shall not grant any proxy to any
person which conflicts with the proxy granted herein, and any attempt to do so
shall be void. The power of attorney granted herein is a durable power of
attorney.
In the event that Second Cup fails for any reason to vote its Coffee
People Shares in accordance with the requirements of Section 2.1 hereof, then
the Proxy Holder shall have the right to vote the shares at any meeting of
Coffee People's shareholders in accordance with the provisions of this Section
2.2. The vote of the Proxy Holder shall control in any conflict between its vote
of the Coffee People Shares and a vote by Second Cup of the Coffee People
Shares.
3. Representations and Warranties of Each Xxxxxxxx Shareholder.
Each Xxxxxxxx Shareholder represents and warrants to Second Cup as follows:
3.1 Ownership of Shares. As of the date hereof, the Xxxxxxxx
Shares set forth next to his or its name on Exhibit A are owned of record and
beneficially by such Xxxxxxxx Shareholder.
3.2 Power; Binding Agreement. Such Xxxxxxxx Shareholder has full
legal right, power and authority to enter into and perform all of its
obligations under this Agreement. The execution and delivery of this Agreement
by such Xxxxxxxx Shareholder, and the consummation of the transactions
contemplated hereby will not violate any other agreement to which such Xxxxxxxx
Shareholder is a party including, without limitation, any voting agreement,
shareholders' agreement or voting trust. This Agreement has been duly executed
and delivered by such Xxxxxxxx Shareholder and constitutes a legal, valid and
binding agreement of such Xxxxxxxx Shareholder, enforceable in accordance with
its terms to the fullest extent permitted by law, except as such enforcement may
be limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity. To the
knowledge of such Xxxxxxxx Shareholder, no consent or approval of or filing with
any governmental or other regulatory body is required in relation to this
Agreement.
3
4
4. Representations and Warranties of Second Cup. Second Cup
represents and warrants to Xxxxxxxx Coffee as follows:
4.1 Ownership of Shares. As of the date hereof, the Coffee
People Shares are owned of record and beneficially by Second Cup.
4.2 Power; Binding Agreement. Second Cup has full legal right,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery of this Agreement by Second Cup, and the
consummation of the transactions contemplated hereby will not violate any other
agreement to which Second Cup is a party including, without limitation, any
voting agreement, shareholders' agreement or voting trust. This Agreement has
been duly executed and delivered by Second Cup and constitutes a legal, valid
and binding agreement of Second Cup, enforceable in accordance with its terms to
the fullest extent permitted by law, except as such enforcement may be limited
by applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity. To the knowledge
of Second Cup, no consent or approval of or filing with any governmental or
other regulatory body is required in relation to this Agreement.
5. Termination. This Agreement shall terminate on the earliest of
(i) the Effective Time (as defined in the Merger Agreement), (ii) the
termination of the Merger Agreement or (iii) July 1, 1999.
6. Expenses. Each party hereto will pay all of his or its own
expenses in connection with the transactions contemplated by this Agreement
including, without limitation, the fees and expenses of his or its counsel and
other advisers.
7. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
8. Severability. The provisions set forth in this Agreement are
severable. If any provision of this Agreement is held invalid or unenforceable
in any jurisdiction, the remainder of this Agreement, and the application of
such provision to other persons or circumstances, shall not be affected thereby,
and shall remain valid and enforceable in such jurisdiction, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9. Third Party Beneficiaries. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person other than the parties hereto
any rights or remedies under or by reason of this Agreement or any provision
contained herein.
10. Injunctive Relief. The parties agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may be without an
adequate remedy at law. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision, as well as to
4
5
obtain damages for breach of this Agreement. By seeking or obtaining any such
relief, the aggrieved party will not be precluded from seeking or obtaining
other relief to which it may be entitled.
11. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the internal laws of the State
of California.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all other prior agreements and understandings both written and
oral between the parties with respect to the subject matter hereof.
14. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
15. Facsimile Signatures. Any signature page delivered by a
facsimile machine or telecopy machine shall be binding to the same extent as an
original signature page, with regard to any agreement subject to the terms
hereof or any amendment thereto. Any party who delivers such a signature page
agrees to later deliver an original counterpart to any party who requests it.
5
6
IN WITNESS WHEREOF, each of the parties have caused this Agreement to be
duly executed and delivered on the day and year first above written.
XXXXXXXX COFFEE, INC. D.C.H., L.P.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------ --------------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxxxxx
Title: President and Chief Title: General Partner
Executive Officer
XXXXX XXXXX XXXXXX X. XXXXXXXX
/s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- -----------------------------------------
Xxxxx Xxxxx Xxxxxx X. Xxxxxxxx
Address: Address:
------------------------- --------------------------------
--------------------------------- -----------------------------------------
XXXXXXXX XXXXXXX XXXX X. XXXXXXXX
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxxxx
--------------------------------- -----------------------------------------
Xxxxxxxx Xxxxxxx Xxxx X. Xxxxxxxx
Address: Address:
------------------------- --------------------------------
--------------------------------- -----------------------------------------
XXXX X. XXXXXX XXXXXXX X. XXXX
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx
--------------------------------- -----------------------------------------
Xxxx X. Xxxxxx Xxxxxxx X. Xxxx
Address: Address:
------------------------- --------------------------------
--------------------------------- -----------------------------------------
SECOND CUP USA HOLDINGS LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Chairman of the Board and Chief
Executive Officer
6
7
EXHIBIT A
LIST OF XXXXXXXX SHAREHOLDERS AND NUMBER OF SHARES OWNED
Name of Shareholder Number of Shares of Xxxxxxxx Common Stock
------------------- -----------------------------------------
D.C.H., L.P. 1,473,197
Xxxxx Xxxxx 20,000
Xxxxxx X. Xxxxxxxx 655,107
Xxxxxxxx Xxxxxxx 12,700
Xxxx X. Xxxxxxxx 7,369
Xxxx X. Xxxxxx 408,533
Xxxxxxx X. Xxxx 29,367
7
8
EXHIBIT B
LIST OF SECOND CUPS AND NUMBER OF SHARES OWNED
Name of Shareholder Number of Shares of Coffee People Common Stock
------------------- ----------------------------------------------
Second Cup USA Holdings Ltd. 7,460,679
8
