Exhibit 10.1
Execution
Copy
VOTING AGREEMENT
AND IRREVOCABLE
PROXY
This VOTING AGREEMENT AND
IRREVOCABLE PROXY (this “ Agreement ”) is
made as of the
day of
, 2008 by and between Green Mountain Coffee Roasters, Inc., a
Delaware corporation (the “ Company ”), and Tom
T. O’Keefe (“ Shareholder ”).
WHEREAS , concurrently with the execution of this
Agreement, the Company and Tully’s Coffee Corporation, a
Washington corporation (“ Tully’s ”), are
entering into an Asset Purchase Agreement.
WHEREAS , Shareholder owns of record and beneficially
the number of shares of capital stock of Tully’s indicated
below such Shareholder’s name on the signature page hereto
(the “ Shares ”);
WHEREAS , Shareholder wishes to enter into this
Agreement with respect to all of the Shares and all of the shares
of capital stock of Tully’s which Shareholder may acquire at
any time during the term of this Agreement (collectively, the
“ Proxy Shares ”); and
WHEREAS , in order to induce the Company to enter into
the Asset Purchase Agreement, Shareholder has agreed to enter into
this Agreement.
NOW, THEREFORE
, in consideration of the above and
the mutual covenants and agreements contained herein, and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, each of the parties hereto hereby agree as
follows:
1. Definitions.
Capitalized terms not defined herein
shall have the same meaning ascribed to such terms in the Asset
Purchase Agreement.
2. Representations and Warranties
of Shareholder. Shareholder hereby represents and warrants to
the Company as follows:
(a) such Shareholder has the power
and the right to enter into, deliver and perform the terms of this
Agreement;
(b) this Agreement has been duly and
validly executed and delivered by such Shareholder and is a legal,
valid and binding agreement with respect to Shareholder,
enforceable against Shareholder in accordance with its
terms;
(c) Shareholder beneficially owns
the number of Shares set forth on the signature page hereto and has
sole or shared, and otherwise unrestricted, voting power with
respect to such Shares;
(d) no proceedings relating to such
Shareholder or such Shareholder’s Proxy Shares are pending
which could have an effect on Shareholder’s ability to vote
or dispose of any of the Proxy Shares; and
(e) the execution and delivery of
this Agreement by Shareholder does not, and the performance by
Shareholder of his obligations hereunder and the consummation by
Shareholder of the transactions contemplated hereby will not,
violate or conflict with, or constitute a breach or default under,
any agreement, instrument, contract or other obligation or any
order, arbitration award, judgment or decree to which Shareholder
is a party or by which Shareholder is bound, or any statute, rule
or regulation to which Shareholder is subject. Except as expressly
contemplated hereby, Shareholder is not a party to any voting
agreement or voting trust relating to the Proxy Shares.
3. Agreement to Vote Proxy
Shares. Shareholder
agrees with, and covenants to, Company that during the term of this
Agreement:
(a) at any meeting of the
Tully’s shareholders (the “ Tully’s
Shareholders’ Meeting ”) Shareholder shall vote (or
cause to be voted) all of the Proxy Shares controlled or owned by
him in favor of the Shareholder Approval including the approval of
the (i) Asset Purchase Agreement, (ii) Contemplated
Transactions, (iii) proposal to change Tully’s corporate
name and (iv) waiver of any liquidation preference or other
distribution that shareholder may be entitled to pursuant to
Tully’s Amended and Restated Certificate of Incorporation
with respect to the Proxy Shares in connection with the
consummation of the Contemplated Transactions.
(b) at any Tully’s
Shareholders’ Meeting or in any other circumstances upon
which a vote, consent or other approval is sought with respect to
any Superior Proposal Shareholder shall vote (or cause to be voted)
the Proxy Shares against such Superior Proposal.
4. Covenants.
Shareholder agrees with, and
covenants to, Company that Shareholder shall not (i) transfer
(which term shall include, without limitation, for the purposes of
this Agreement, any sale, gift, pledge or other disposition), or
consent to any transfer of, any or all of the Proxy Shares or any
interest therein; (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of
any or all of the Proxy Shares or any interest therein;
(iii) grant any proxy, power of attorney or other
authorization in or with respect to such shares; or
(iv) deposit such shares into a voting trust or enter into a
voting agreement or arrangement with respect to any or all of the
Proxy Shares.
5. Grant of Irrevocable Proxy;
Appointment of Proxy.
(a) Shareholder hereby revokes any
proxies previously granted with respect to any of the Proxy
Shares.
(b) Shareholder hereby irrevocably
grants to, and appoints, the Company and each of
[ ],
in their respective capacities as officers of the Company, and each
of them individually, such Shareholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the
name, place and stead of such Shareholder (i) to vote the
Proxy Shares in favor of the Shareholder Approval at a
Tully’s Shareholders’ Meeting or by written consent in
lieu of a meeting.
(c) Shareholder hereby affirms that
the irrevocable proxy set forth in this Section 5 is given in
connection with the execution of the Asset Purchase Agreement, and
that such irrevocable proxy is given to secure the performance of
the duties of such Shareholder
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under this Agreement
