Exhibit 4.1
FORM OF
STOCKHOLDER VOTING
AGREEMENT AND PROXY
STOCKHOLDER VOTING AGREEMENT AND PROXY, dated as of May [16],
2005, among HIBERNATION HOLDING COMPANY, INC., a Delaware
corporation (the "Buyer"), HIBERNATION COMPANY, INC., a Delaware
corporation (the "Merger Subsidiary"), and the stockholders set
forth on the separate counterpart signature pages hereto and listed
on Exhibit A hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, the Buyer, the Merger Subsidiary and The Vermont Teddy
Bear Co., Inc., a New York corporation (the "Company"), propose to
enter into an Agreement and Plan of Merger of even date herewith
(as the same may be amended or supplemented, the "Merger
Agreement"), a copy of which has been provided to each Stockholder,
providing for a merger between the Merger Subsidiary and the
Company (as described therein, the "Merger") (capitalzed terms not
otherwise defined herein to have the same meanings as are assigned
to such terms in the Merger Agreement);
WHEREAS, each Stockholder is the record and beneficial owner of
shares of Company Capital Stock and also may hold Company Stock
Options (each as defined in the Merger Agreement), such shares of
Company Capital Stock, as such shares may be adjusted by stock
dividend, stock split, recapitalization, combination or exchange of
shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, together with shares of Company
Capital Stock which may be acquired after the date hereof by the
Stockholder, including shares of Company Capital Stock issuable
upon the exercise of Company Stock Options (as the same may be
adjusted as aforesaid), being collectively referred to herein as
the "Shares"; and
WHEREAS, as a condition precedent to their willingness to enter
into the Merger Agreement, the Buyer and the Merger Subsidiary have
required that the Stockholders enter into this Voting Agreement and
Proxy;
NOW, THEREFORE, to induce the Buyer and the Merger Subsidiary to
enter into, and in consideration of their entering into, the Merger
Agreement, and in consideration of the premises and the
representations, warranties and agreements contained herein, the
parties agree as follows:
1.
Representations and Warranties of the Stockholders . Each
Stockholder hereby represents and warrants to the Buyer and the
Merger Subsidiary as follows:
(a)
Authority . The Stockholder has all requisite power and
authority to execute and deliver this Voting Agreement and Proxy
and to consummate the transactions contemplated hereby, and the
Stockholder has sole voting power with respect to the Shares held
by the Stockholder with no restrictions on the Stockholder's voting
rights. The execution, delivery and performance of this Voting
Agreement and Proxy and the consummation of the transactions
contemplated hereby have been duly authorized by the Stockholder.
This Voting Agreement and Proxy has been duly executed and
delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms. Except for informational filings with
the Securities and Exchange Commission, neither the execution,
delivery or performance of this Voting Agreement and Proxy by the
Stockholder nor the consummation by the Stockholder of the
transactions contemplated hereby will (i) require any filing with,
or permit, authorization, consent or approval of, any federal,
state or local government or any court, tribunal, administrative
agency or commission or other governmental or regulatory authority
or agency, domestic, foreign or supranational (a "Governmental
Entity"), (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default
under, or give rise to any right of termination, amendment,
cancellation or acceleration under, or result in the creation of
any pledge, claim, lien, charge, encumbrance or security interest
of any kind or nature whatsoever (a "Lien") upon any of the
properties or assets of the Stockholder under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
lease, license, permit, concession, franchise, contract, agreement
or other instrument or obligation (a "Contract") to which the
Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets, including the Stockholder's
Shares, may be bound (except Contracts that shall be fully
discharged upon the closing of the transactions contemplated
hereby) or (iii) violate any judgment, order, writ, preliminary or
permanent injunction or decree (an "Order") or any statute, law,
ordinance, rule or regulation of any Governmental Entity (a "Law")
applicable to the Stockholder or any of the Stockholder's
properties or assets, including the Stockholder's Shares.
(b)
The Shares . The Stockholder's Shares and the certificates
representing such Shares are now and at all times during the term
hereof will be held by the Stockholder, or by a nominee or
custodian for the benefit of the Stockholder, and the Stockholder
has good and marketable title to such Shares, free and clear of any
Liens, proxies, voting trusts or agreements, understandings or
arrangements, except for any such Liens or proxies arising
hereunder or Liens and Contracts that shall be fully discharged
upon the closing of the transactions contemplated hereby. The
Stockholder owns of record or beneficially no shares of Company
Capital Stock other than the Stockholder's Shares and shares of
Company Capital Stock issuable upon the exercise of Company Stock
Options.
(c)
Merger Agreement . The Stockholder understands and
acknowledges that the Buyer is entering into, and causing the
Merger Subsidiary to enter into, the Merger Agreement in reliance
upon the Stockholder's execution and delivery of this Voting
Agreement and Proxy. The Stockholder hereby consents to the Company
entering into the Merger Agreement.
2.
Covenants of the Stockholders . Each Stockholder, severally
and not jointly, agrees as follows:
(a)
Until this Voting Agreement and Proxy is terminated, the
Stockholder shall not, except as contemplated by the terms of this
Voting Agreement and Proxy or pursuant to a statutory merger
effected after the Merger Agreement has been terminated, which has
been duly approved by all requisite action of the Board of
Directors and stockholders of the Company without a violation by
the Stockholder of the terms of this Voting Agreement and Proxy,
(i) sell, transfer, pledge, assign or otherwise dispose of, or
enter into any contract, option or other arrangement (including any
profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the
Shares to any person other than the Merger Subsidiary or the Merger
Subsidiary's designee, (ii) enter into any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to the Shares or (iii) take any other
action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions
contemplated hereby. The foregoing provisions of this Section 2(a)
shall not be deemed to restrict or prohibit the ability of the
Stockholder to transfer the Stockholder's Shares to members of his
immediate family or family limited partnerships, limited liability
companies, trusts or similar entities in connection with estate
planning objectives, provided that each such transferee agrees in
writing to be bound by the terms of this Voting Agreement and
Proxy.
(b)
Until the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall not, nor shall the Stockholder
permit any investment banker, financial adviser, attorney,
accountant or other representative or agent of the Stockholder
acting on behalf and at the request of the Stockholder, to,
directly or indirectly solicit, initiate or encourage (including by
way of furnishing information), or take any other action designed
or reasonably likely to facilitate, any inquiries or the making of
any proposal which constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal (as defined in the Merger
Agreement). Without limiting the foregoing, it is understood that
any violation of the restrictions set forth in the preceding
sentence by an investment banker, financial advisor, attorney,
accountant or other representative or agent of the Stockholder
acting on behalf of the Stockholder and at the Stockholder's
request, shall be deemed to be a violation of this Section 2(b) by
the Stockholder.
(c)
To the extent, if applicable, that any Stockholder is an officer or
director of the Company, no provision of this Voting Agreement and
Proxy shall be construed as prohibiting, restricting or otherwise
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