Exhibit 10.52
VOTING AGREEMENT
VOTING AGREEMENT dated October 5, 2001, among certain shareholders of
BLIMPIE INTERNATIONAL, INC., a New Jersey corporation (the "Company"), that are
parties hereto (each, a "Shareholder" and, collectively, the "Shareholders"),
and SANDWICH ACQUISITION CORP., a New Jersey corporation ("Newco").
WHEREAS, Newco proposes to enter into an Agreement and Plan of Merger
dated the date hereof (as amended from time to time, the "Merger Agreement";
capitalized terms being used herein as defined therein unless otherwise defined
herein), with the Company, which provides, among other things, that Newco will
merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Shareholder is the record and
beneficial owner of the number of shares of Common Stock, par value $.01 per
share, of the Company (the "Company Common Stock"), set forth on the signature
page hereof beneath such Shareholder's name (with respect to each Shareholder,
such Shareholder's "Existing Shares" and, together with any shares of Company
Common Stock acquired after the date hereof, whether upon the exercise of
warrants, options, conversion of convertible securities or otherwise, such
Shareholder's "Shares"); and
WHEREAS, as a condition to the willingness of Newco to enter into the
Merger Agreement, Newco has requested that the Shareholders agree, and in order
to induce Newco to enter into the Merger Agreement, the Shareholders have
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 agree as follows:
ARTICLE 1
VOTING AGREEMENT
Section 1.1 Voting Agreement. Each Shareholder, severally and not jointly,
hereby agrees that, from and after the date hereof and until this Agreement
shall have been terminated in accordance with Article 5 hereof, at any meeting
of the Shareholders of the Company, however called, and in any action by consent
of the Shareholders of the Company, such Shareholder will vote (or cause to be
voted) such Shareholder's Shares: (a) in favor of the approval and adoption of
the Merger Agreement, the Merger and all the transactions contemplated by the
Merger Agreement and this Agreement and otherwise in such manner as may be
necessary to consummate the Merger; (b) except as otherwise agreed to in writing
in advance by Newco, against any action, proposal, agreement or transaction that
would result in a breach of any covenant, obligation, agreement, representation
or warranty of the Company contained in the Merger Agreement (whether or not
theretofore terminated) or of the Shareholder contained in this Agreement; and
(c) against any action, proposal, agreement or transaction that could result in
any of the conditions to the Company's obligations under the Merger Agreement
(whether or not theretofore terminated) not being fulfilled or that is intended,
or could reasonably be expected, to impede, interfere or be inconsistent with,
delay, postpone, discourage or adversely affect the Merger Agreement (whether or
not theretofore terminated), the Merger or this Agreement, including, but not
limited to, any Acquisition Proposal (as such term is defined in the Merger
Agreement). Such Shareholder shall not enter into any agreement or understanding
with any person or entity to vote such Shareholder's shares or give instructions
in any manner inconsistent with this Section 1.1. The Shareholder acknowledges
receipt and review of a copy of the Merger Agreement.
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Section 1.2 Irrevocable Proxy. If any Shareholder fails to comply with the
provisions of Section 1.1 (as determined by Newco in its sole discretion), such
Shareholder hereby agrees that such failure shall result, without any further
action by such Shareholder, in the irrevocable appointment of Newco, and each of
its officers, as such Shareholder's attorney and proxy, with full power of
substitution, to vote and otherwise act (by written consent or otherwise) with
respect to such Shareholder's Shares at any meeting of Shareholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise, on the matters and
in the manner specified in Section 1.1. THIS PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A SHAREHOLDER
MAY TRANSFER ANY OF HIS SHARES IN BREACH OF THIS AGREEMENT. Each Shareholder
hereby revokes all other proxies and powers of attorney with respect to such
Shareholder's Shares that may have heretofore been appointed or granted, and no
subsequent proxy or power of attorney shall be given or written consent executed
(and if given or executed, shall not be effective) by any Shareholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of any Shareholder and any obligation of the
Shareholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of such Shareholder.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally and not jointly, hereby represents and
warrants to Newco in respect of such Shareholder as follows:
Section 2.1 Authority Relative to This Agreement. Such Shareholder has all
necessary power and authority to execute and deliver this Agreement, to perform
such Shareholders' obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
Shareholder and constitutes a legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms.
Section 2.2 No Conflict.
(a) The execution and delivery of this Agreement by such Shareholder do
not, and the performance of this Agreement by such Shareholder shall not, (i)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to such Shareholder or by which the Shares owned by such Shareholder
are bound or affected or (ii) result in any breach of, or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Shares owned by such Shareholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder or the Shares owned by such Shareholder are bound or affected.
(b) The execution and delivery of this Agreement by such Shareholder do
not, and the performance of this Agreement by such Shareholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental authority, domestic or foreign, except for
applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended.
Section 2.3 Title to the Shares. Such Shareholder is the record and
beneficial owner of the number of shares of Company Common Stock set forth
beneath such Shareholder's name on the signature
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page hereof. Such Shares are all the securities of the Company owned, either of
record or beneficially, by such Shareholder. The Shares owned by such
Shareholder are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on such
Shareholder's voting rights, charges and other encumbrances of any nature
whatsoever. Except as provided in this Agreement, such Shareholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares owned by such Shareholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NEWCO
Newco hereby represents and warrants to each Shareholder as follows:
Section 3.1 Due Organization, Etc. Newco is a corporation duly organized
and validly existing under the laws of the State of New Jersey. Newco has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Newco have been duly authorized by all necessary corporate action on
the part of Newco. This Agreement has been duly executed and delivered by Newco
and, assuming its due authorization, execution and delivery by the Shareholders,
constitutes a legal, valid and binding obligation of Newco, enforceable against
Newco in accordance with its terms.
Section 3.2 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Newco do not, and the
performance of this Agreement by Newco will not, (i) conflict with or violate
the Certificate of Incorporation or By-laws of Newco, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to Newco
or by which Newco or any of its properties is bound or affected, or (iii) result
in any breach of, or constitute a default (or an event that with notice or lapse
of time or both would become a default) under or pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Newco is a party or by which it or any
of its properties is bound or affected, except in the case of clauses (ii) and
(iii) for any such conflicts, violations, breaches, defaults or other
occurrences that would not cause or create a material risk of non-performance or
delayed performance by Newco of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Newco do not, and the
performance of this Agreement by Newco will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, domestic or foreign, except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the performance by Newco of
its obligations under this Agreement.
ARTICLE 4
COVENANTS OF THE SHAREHOLDERS
Section 4.1 No Disposition or Encumbrance of Shares. Each Shareholder,
severally and not jointly, hereby agrees that, except as contemplated by this
Agreement, such Shareholder shall not (i) sell, transfer, tender, assign,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, grant a proxy or power of attorney with respect to, deposit into any voting
trust, 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, any of such Shareholder's Shares (or agree or consent to, or offer to do,
any of the foregoing), (ii) take any
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action that would make any representation or warranty of such Shareholder herein
untrue or incorrect in any material respect or have the effect of preventing or
disabling such Shareholder from performing his or her obligations or, (iii)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing.
Section 4.2 No Solicitation of Transactions. Each Shareholder, severally
and not jointly, agrees that between (x) the thirty-day anniversary of the date
of this Agreement and (y) the earlier of the effective time of the Merger or the
date of termination of the Merger Agreement, such Shareholder will not (a)
solicit, initiate, consider, encourage or accept any other proposals or offers
from any person constituting an Acquisition Proposal, or (b) participate in any
discussions, conversations, negotiations and other communications regarding, or
furnish to any other person any information with respect to, or otherwise
cooperate in any way, assist or participate in, facilitate or encourage any
effort or attempt by any other person to make an Acquisition Proposal. On the
thirty-day anniversary of the date of this Agreement, each Shareholder
immediately shall cease and cause to be terminated all existing discussions,
conversations, negotiations and other communications with any persons conducted
heretofore with respect to any of the foregoing; provided, that, the
Shareholders shall not be prohibited from maintaining or continuing discussions
or negotiations with any party that has expressed an interest in making or
submitting an Acquisition Proposal (whether orally or in writing) prior to the
thirty-day anniversary of the date of this Agreement. Each Shareholder shall
notify Newco promptly if any such proposal or offer, or any inquiry or other
contact with any person with respect thereto, is made (in each case, if it
occurs after the thirty-day anniversary of the date of this Agreement) and
shall, in any such notice to Newco, indicate in reasonable detail the identity
of the person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or other contact.
Section 4.3 Regulatory and Other Authorizations; Notices and Consents.
Each Shareholder, severally and not jointly, agrees to use his reasonable best
efforts to obtain (or cause the Company and its subsidiaries to obtain) all
authorizations, consents, orders and approvals of all governmental authorities
and officials that may be or become necessary for the execution and delivery of,
and the performance of his obligations pursuant to, this Agreement and will
cooperate fully with Newco in promptly seeking to obtain all such
authorizations, consents, orders and approvals.
ARTICLE 5
TERMINATION
Section 5.1 Termination. This Agreement shall terminate, and no party
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no further effect upon the earliest of: (a) the effective
time of the Merger; (b) the date of termination of the Merger Agreement in
accordance with its terms; and (c) by the written mutual consent of the parties
hereto. Nothing in this Section 5.1 shall relieve any party of liability for any
breach of this Agreement.
ARTICLE 6
MISCELLANEOUS
Section 6.1 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 so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
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 in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
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Section 6.2 Further Assurances. Each Shareholder and Newco will execute
and deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
Section 6.3 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, in addition to any other
remedy at law or in equity.
Section 6.4 Entire Agreement. This Agreement constitutes the entire
agreement between Newco and the Shareholders with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Newco and the Shareholders with respect to the subject matter
hereof.
Section 6.5 Amendment; Waiver. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered by the other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of the other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
Section 6.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any New York state or federal court.
Section 6.7 Expenses. Except as otherwise specified in this Agreement, all
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
Section 6.8 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt if
delivered personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) or sent by a nationally recognized overnight courier
service, such as Federal Express, to the respective parties at the following
addresses or sent by electronic transmission to the fax number specified below,
with a confirming copy mailed or delivered (or at such other address or fax
number of a party as shall be specified by such party by like notice):
(a) if to any Shareholder, addressed to such Shareholder:
c/o Blimpie International, Inc.
740 Broadway, 12th Floor
New York, New York 10003
Attention: Chief Executive Officer
Fax: (212) 995-2560
with a copy to:
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Hall Dickler Kent Goldstein & Wood, LLP
909 Third Avenue
New York, New York 10022
Attention: Steven D. Dreyer, Esq.
Fax: (212) 935-3121
(b) if to Newco:
Sandwich Acquisition Corporation
c/o Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Attention: Jay Schwartz, Esq.
Fax: (404) 685-6932
Section 6.9 Public Announcements. Except as may be required by applicable
law, no party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as to
the timing and contents of any such press release or public announcement.
Section 6.10 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.11 Assignment. This Agreement may not be assigned by operation
of law or otherwise without, in the case of an assignment by Newco, the written
consent of each Shareholder (which consent may be granted or withheld in the
sole discretion of any Shareholder), and in the case of an assignment by any
Shareholder, the written consent of Newco (which consent may be granted or
withheld in the sole discretion of Newco), except that Newco may assign this
Agreement to any direct or indirect wholly-owned subsidiary of Newco without the
consent of any Shareholder, provided that no such assignment shall relieve Newco
of its obligations hereunder if such assignee does not perform such obligations.
Section 6.12 No Third Party Beneficiaries. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
Section 6.13 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first above written.
/s/ Patrick Pompeo
-----------------------------------------
Name: Patrick Pompeo
Shares of Company Common Stock: 398,637
/s/ Charles Leaness
-----------------------------------------
Name: Charles Leaness
Shares of Company Common Stock: 431,908
/s/ Joe Conza
-----------------------------------------
Name: Joe Conza
Shares of Company Common Stock: 46,580
/s/ Anthony Conza
-----------------------------------------
Name: Anthony Conza
Shares of Company Common Stock: 2,947,942
/s/ David Siegel
-----------------------------------------
Name: David Siegel
Shares of Company Common Stock: 1,483,875
SANDWICH ACQUISITION CORPORATION
By: /s/ Jeffrey Endervelt
-------------------------------------
Name: Jeffrey Endervelt
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