EXHIBIT 1
VOTING AGREEMENT
This Agreement is made as of October 1, 2002 by and between BREWING
VENTURES LLC, a Minnesota limited liability company ("Brewing Ventures"), and
BREW BUDDIES, LLC, a South Dakota limited liability company ("Brew Buddies").
WHEREAS, as a condition to the willingness of Brew Buddies to enter
into a subscription agreement and letter of investment intent for the purchase
of 20,500 shares of Series A Convertible Preferred Stock (the "Preferred") of
Founders Food & ▇▇▇▇▇▇▇ Ltd., a Minnesota corporation (the "Company"), Brew
Buddies has required that Brewing Ventures enter into this Agreement; and
WHEREAS, as of the date hereof, Brewing Ventures owned 1,662,500 shares
of common stock of the Company (the "Shares"); and
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, Brewing Ventures and Brew Buddies agree as follows:
ARTICLE 1
VOTING OF SHARES
1.1 VOTING AGREEMENT. Brewing Ventures hereby agrees that during the
time this Agreement is in effect, at any meeting of the shareholders of the
Company, however called, and in any action by consent of the shareholders of the
Company, Brewing Ventures shall vote the Shares in favor of the nominee to the
Company's board of directors designated by Brew Buddies or its designee,
Bluestem Capital Partners III Limited Partnership; provided, however, that
Brewing Ventures shall not be required to vote the Shares in favor of such
nominee if (i) Brewing Ventures determines, in its sole discretion, that such
nominee has a conflict of interest with the Company (other than a conflict
resulting from Brew Buddies' investment in the Preferred), or (ii) any of
disqualification provision of Rule 262 promulgated under the Securities Act of
1933, as amended, applies to such nominee.
1.2 NO DISPOSITION OR ENCUMBRANCE OF SHARES. Brewing Ventures hereby
covenants and agrees that, from the date hereof to the termination of this
Agreement, it shall not, and shall not offer or agree to, sell, transfer,
tender, assign, hypothecate or otherwise dispose of, or create or permit to
exist any Encumbrance (as hereinafter defined) on its Shares, unless: (i)
Brewing Ventures provides Brew Buddies prior written notice of such transfer or
disposition, and (ii) Brewing Ventures' proposed transferee agrees to be bound
by and executes a voting agreement with Brew Buddies.
1.3 NO OTHER PROXY. Brewing Ventures covenants and agrees that it shall
not hereafter, until the termination of this Agreement, grant any proxy or power
of attorney with respect to any of the Shares, deposit any of the Shares into a
voting trust or enter into any agreement (other than this Agreement),
arrangement or understanding with any person, directly or indirectly, to vote,
grant any proxy or give instructions with respect to the voting of any of the
Shares.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF BREWING VENTURES
Brewing Ventures hereby represents and warrants to Brew Buddies as
follows:
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2.1 DUE EXECUTION. This Agreement has been duly executed and delivered
by or on behalf of Brewing Ventures and, assuming its due authorization,
execution and delivery by Brew Buddies, constitutes a legal, valid and binding
obligation of Brewing Ventures, enforceable against Brewing Ventures in
accordance with its terms.
2.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by Brewing Ventures do not, and the performance of
this Agreement by Brewing Ventures will not, (i) conflict with or violate any
agreement, decree or judgment applicable to Brewing Ventures, or (ii) result in
the creation of a lien or Encumbrance on any of the Shares.
2.3 TITLE TO SHARES. Brewing Ventures is the record and beneficial
owner of the Shares, free and clear of any pledge, lien, security interest,
mortgage, charge, claim, equity, option, proxy, voting restriction, right of
first refusal limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrance") which would prevent Brewing Ventures
from entering into or performing this Agreement, other than pursuant to this
Agreement.
ARTICLE 3
MISCELLANEOUS
3.1 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such costs and expenses.
3.2 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or sent by certified, registered, express mail or
nationally recognized courier service, postage prepaid as follows, or such other
address or addresses as a party designates to the other in the manner herein
prescribed:
(i) if to Brewing Ventures to: With a concurrent copy to:
Brewing Ventures LLC ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A.
c/o Founders Food & ▇▇▇▇▇▇▇ Ltd. 2400 IDS Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Brew Buddies: With a concurrent copy to:
Brew Buddies, L.L.C. ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed given on the day when so delivered
personally or successfully sent by facsimile transmission or on the day shown on
the return receipt (if delivered by mail or delivery service).
3.3 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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3.4 ENTIRE AGREEMENT, AMENDMENTS. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party hereto unless made in writing and
signed by the other party hereto.
3.5 ASSIGNMENT, BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
3.6 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was 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 enforce specifically
the terms and provisions hereof in any Minnesota court, this being in addition
to any other remedy to which they are entitled at law or in equity.
3.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to its rules
of conflict of laws.
3.8 HEADINGS. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
3.9 COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
3.10 TERMINATION. This Agreement shall terminate and be of no further
force and effect, automatically and without any required action of the parties,
hereto, on the first to occur of (i) the fifth anniversary of the purchase by
Brew Buddies of the Preferred, (ii) the conversion by Brew Buddies of the
Preferred into shares of common stock of the Company, or (iii) the disposition
by Brew Buddies of the Preferred to a third party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
BREW BUDDIES, LLC BREWING VENTURES LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Its Authorized Member Its Member
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