1
EXHIBIT 10.43
VOTING AGREEMENT
AGREEMENT, dated as of April __, 1998, by and between The
Delicious Frookie Company, Inc. ("Company") and Xxxxxx X. Xxxxx, as Voting
Trustee ("Voting Trustee") under a Voting Trust Agreement dated as of December
22, 1997 by and among Xxxxxxx X. Worth, Xxxxxx Worth, Xxxxxxxx Mollen & Xxxxxx,
the Company and the Voting Trustee ("Voting Trust Agreement").
WHEREAS, pursuant to the Voting Trust Agreement, the Voting
Trustee presently holds in trust ("Voting Trust") an aggregate of 2,022,000
shares of common stock, par value $.01 per share ("Common Stock"), of the
Company ("Trust Shares"), and has the power to vote such Trust Shares; and
WHEREAS, the Company and Xxxxxx, Xxxxxxx Inc. ("GBI") have
entered into a letter of intent dated February 18, 1998, as supplemented
February 24, 1998, pursuant to which GBI has agreed to act as lead managing
underwriter for a proposed initial public offering ("IPO") of Common Stock; and
WHEREAS, in consideration for GBI's willingness to act as lead
managing underwriter for the IPO, the Company and the Voting Trustee have agreed
to enter into this Agreement.
NOW THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, the
parties hereby agree as follows:
1 Agreement to Vote.
1.1 Voting. The Voting Trustee hereby agrees that, during the time that
this Agreement is in effect, at any meeting of the stockholders of the Company,
however called (including any adjournments or postponements thereof), or in any
written consent of the stockholders of the Company, the Voting Trustee shall
vote or consent, as the case may be, the Trust Shares, and any other shares of
Common Stock that may be deposited in the Voting Trust after the date hereof in
addition to or in substitution for the Trust Shares, in accordance with (i) the
specific direction of the Board of Directors of the Company or (ii) the
recommendation of the Board of Directors to the stockholders of the Company
generally, including, but not limited to, the election of persons nominated by
the Board of Directors as directors of the Company, whether such direction or
recommendation is contained in a resolution of the Board of Directors or in a
proxy statement or notice of meeting approved by resolution of the Board of
Directors; provided, however, that the Voting Trustee shall be entitled to vote
or consent, as the case may be, (x) for the removal of a director of the Company
for Cause (and only for Cause) as permitted by the Delaware General Corporation
Law notwithstanding a direction or recommendation against removal, or (y) in
any manner he deems appropriate in the absence of any such direction or
recommendation of the Board of Directors. Notwithstanding the foregoing, the
Voting Trustee shall not vote by written consent of the stockholders in the
absence of any such direction or recommendation except with respect to any vote
by written consent of the stockholders relating to the removal of a director of
the Company for Cause (and only for Cause) as permitted by the Delaware General
Corporation Law.
1.2 Cause. For purposes of Paragraph 1.1 of this Agreement, "Cause"
shall include: (i) misappropriation of assets or perpetration of fraud against
the Company, (ii) conviction of or a plea of nolo contendere to a crime that
constitutes a felony or that involves an act of moral turpitude, (iii) engaging
in the illegal use of habit-forming substances, (iv) commission of an act of
2
disorderly conduct, including, but not limited to, sexual harassment of any
employee or employees of the Company or of any affiliate(s) of the Company or
acting in a disruptive or disorderly manner due to alcoholism, inebriation or
while under the influence of alcohol while conducting business on behalf of the
Company, (v) being found by a court of competent jurisdiction to have caused
harassment, malfeasance, or obstruction of the corporate business, (vi) mental
incompetency, (vii) gross inefficiency, with gross inefficiency including, for
an employee Director, allowing the Company, during such employee's tenure as a
senior operating executive of the Company, to generate in any calendar year,
starting with the 1999 calendar year, over one million dollars in annual
operating losses not reserved for under the budgeted plans approved annually by
the Company's Board of Directors, (viii) willful and material refusal or failure
to carry out specific directions of the Board of Directors, or (ix) any
violation or breach that is deemed to be cause as defined under any other
written agreements that a Director has executed with the Company.
1.3 No Divestiture. The Voting Trustee shall not, directly or
indirectly, take any action that would divest the Voting Trustee of voting power
with respect to the Trust Shares or any other shares of Common Stock deposited
in the Voting Trust after the date hereof in addition to or in substitution for
the Trust Shares, except as contemplated herein or by the Voting Trust
Agreement.
2 Expiration. The Voting Trustee's obligation to vote the Trust Shares
governed hereby shall terminate (i) with respect to any particular Trust Shares
or other shares of Common Stock deposited in the Voting Trust, upon the release
of such Trust Shares or such other shares of Common Stock from the Voting Trust
pursuant to the terms of the Voting Trust Agreement, and (ii) upon written
notice of termination of this Agreement by the Company to the Voting Trustee;
provided that this Agreement may not be terminated without the prior written
consent of GBI to such termination.
3 Representations of Voting Trustee.
3.1 Power, Binding Agreement. The Voting Trustee has the legal
capacity, power and authority to enter into and perform all of his obligations
under this Agreement. The execution, delivery and performance of this Agreement
by the Voting Trustee will not violate any other agreement to which the Voting
Trustee is a party, including, without limitation, any voting agreement,
stockholders' agreement, partnership agreement or voting trust. This Agreement
has been duly and validly executed and delivered by the Voting Trustee and
constitutes a valid and biding obligation of the Voting Trustee enforceable
against the Voting Trustee in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
3.2 No Conflicts. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not, conflict
with or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Voting Trustee or any of his properties or assets, other than such
conflicts, violations, or defaults or terminations, cancellations or
accelerations that individually or in the aggregate do not materially impair the
ability of the Voting Trustee to perform his obligations hereunder. No consent,
approval, order or authorization of, or registration, declaration, or filing
with, any governmental entity is required by or with respect to the execution
and delivery of this Agreement by the Voting Trustee and the fulfillment by the
Voting Trustee of his obligations hereunder.
2
3
4 Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary to
further evidence or confirm the transactions contemplated herein or any
understanding or representation made by such party herein.
5 Miscellaneous.
5.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
entire agreement (other than the Voting Trust Agreement) among the parties 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 and (ii) shall not be assigned by operation of law or
otherwise, but (iii) shall be binding upon any successor Voting Trustee under
the Voting Trust Agreement.
5.2 Amendments; Waiver. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto; provided that no such modification,
amendment, alteration, supplement or waiver may be effected without the prior
written consent of GBI to such action.
5.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Company: The Delicious Frookie Company, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Voting
Trustee: Xxxxxx X. Xxxxx
Xxxxxxxxxxx Xxxxxx Xx. 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
3
4
If to GBI: Xxxxxx, Xxxxxxx Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Senior Director
Telecopier No.: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other address as the person to whom notice is give may have
previously furnished to the others in writing in the manner set forth above.
Copies of any notice to the Company or to the Voting Trustee shall also be
delivered to GBI and to Xxxxxxxx Xxxxxx & Xxxxxx.
5.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
5.5 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages and, therefore, each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
5.6 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
together shall constitute one and the same Agreement.
5.7 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
5.8 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement 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
or portion of any 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.
5.9 Third Party Beneficiary. GBI shall be deemed to be a third-party
beneficiary of this Agreement and, as such, all representations and agreements
of either party set forth in this
4
5
Agreement shall be deemed to have been made also to GBI and GBI shall be
entitled to enforce the terms of this Agreement as if it were a party hereto.
IN WITNESS WHEREOF, the Company and the Voting Trustee have caused this
Agreement to be duly executed as of the day and year first above written.
THE DELICIOUS FROOKIE COMPANY, INC.
By:__________________________________
Name:
Title:
VOTING TRUSTEE:
______________________________
Xxxxxx X. Xxxxx
5
