Exhibit 99.1
TENDER AND VOTING AGREEMENT
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THIS VOTING AGREEMENT, dated as of January 26, 2004, is between Green
Valley Acquisition Co., LLC ("Buyer"), a Pennsylvania limited liability company,
and the undersigned stockholder (the "Stockholder").
WHEREAS, Buyer and Uni-Marts, Inc., a Delaware Corporation ("Company"),
intend to enter into an Agreement and Plan of Merger (the "Merger Agreement")
contemporaneously herewith, pursuant to which Company will merge (the "Merger")
with and into Buyer;
WHEREAS, as of the date hereof, Stockholder owns (either beneficially
or of record) or otherwise controls the number of shares of the Company's Common
Stock ("Common Stock"), indicated on the signature page of this Agreement (all
such shares, and any shares hereafter acquired by Stockholder prior to the
termination of this Agreement being referred to herein as the "Shares"); and
WHEREAS, as a condition to Buyer's willingness to enter into the Merger
Agreement and proceed with the Merger, Buyer has required that Stockholder agree
and, in order to induce Buyer to enter into the Merger Agreement and proceed
with the Merger, Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties agree
as follows:
1. No Inconsistent Arrangements. Until the Termination Date (defined
below), Stockholder shall not (a) sell, transfer, pledge, assign or otherwise
dispose of, or enter into any contract, option or other arrangement with respect
to the sale, transfer, pledge, assignment or other disposition of, any of the
Shares to any person; or (ii) deposit any of the Shares into escrow, a voting
trust or a voting agreement or grant a proxy with respect to any of the Shares,
except as provided in this Agreement. For the purposes of this Agreement,
"Termination Date" means the earlier to occur of (i) the date and time of any
valid termination of the Merger Agreement pursuant its terms (other than a
termination effected by Buyer in connection with the Offer (as defined in the
Merger Agreement) contemplated by Buyer pursuant to Section 7.6 of the Merger
Agreement), or (ii) the date and time of effectiveness of the Merger in
accordance with the terms and conditions of the Merger Agreement.
2. Voting Agreement. Until the Termination Date, at any meeting of the
stockholders of Company or any adjournment thereof, however called, or in any
other circumstances upon which its vote, consent, or other approval is sought,
Stockholder shall vote or cause to be voted the Shares: (i) in favor of the
Merger, the Merger Agreement and the transactions contemplated by the Merger
Agreement; (ii) against any Third Party Acquisition (as defined in the Merger
Agreement), other than the Merger Agreement or the transactions contemplated
thereby; and (iii) against any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or adversely
affect the Merger or any of the other transaction contemplated by the Merger
Agreement, or any of the transactions contemplated by this Agreement.
3. Grant of Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Buyer, which
shall act by and through Xxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx (each, a "Proxy
Holder"), or either of them, with full power of substitutions, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of Company's stockholders called for purposes of
considering whether to approve the Merger Agreement, the Merger or any of the
other transactions contemplated by the Merger Agreement, or any Third Party
Acquisition, or to execute a written consent of stockholders in lieu of any such
meeting, all of the Shares held of record or beneficially by Stockholder or
which Stockholder otherwise controls as of the date of such meeting or written
consent (i) in favor of the approval of the Merger Agreement, the merger and the
other transactions contemplated by the Merger Agreement, (ii) against any Third
Party Acquisition and (iii) against any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone or adversely
affect the Merger or any of the other transaction contemplated by the merger
Agreement, or any of the transactions contemplated by this Agreement. Such proxy
shall be limited strictly to the power to vote the Shares in the manner set
forth in the preceding sentence and shall not extend to any other matters.
4. Tender Pursuant to Section 7.6 of the Merger Agreement. In the event
that Buyer commences an Offer pursuant to Section 7.6 of the Merger Agreement,
Stockholder hereby agrees with Buyer that Stockholder will (i) promptly after
the date of commencement of the Offer (but in all events not later than five (5)
business days thereafter), tender to Buyer all Shares held of record or
beneficially by Stockholder on such date (the "Tendered Shares") and (ii) tender
to Buyer promptly after Stockholder's acquisition thereof (but in all events not
later than five (5) business days thereafter) all other Shares of Company's
Common Stock acquired and held of record or beneficially by Stockholder or which
Stockholder otherwise controls at any time prior to the date on which Buyer
accepts shares tendered to Buyer pursuant to the Offer or the date on which the
Offer is terminated or expires without Buyer's having accepted shares for
payment; all such subsequently tendered Shares shall constitute "Tendered
Shares" for all purposes of this Agreement. Stockholder agrees not to withdraw
any of the Tendered Shares unless the Offer is terminated or has expired without
Buyer's having accepted the Tendered Shares for payment. Stockholder
acknowledges and agrees that Buyer's obligation to accept for payment and pay
for the Tendered Shares is subject to all the terms and conditions of the Offer.
5. Certain Events. If, on or after the date of this Agreement, there
shall occur any stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by Company as a result of which shares of any class of stock
or other securities shall be issued in respect of any Shares, or if any Shares
shall be changed into the same or a different number of shares of the same or
another class of stock or other securities, or upon any other acquisition of any
securities of Company in any other manner, and whether in compliance with the
provisions of this Agreement or otherwise, any such shares or other securities
shall, from and after their receipt or acquisition by Stockholder, constitute
additional Shares of Stockholder.
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6. No Solicitation. Except as permitted by the Merger Agreement,
Stockholder agrees that between the date of this Agreement and the Termination
Date, Stockholder will not directly or indirectly: (i) solicit, initiate, or
take an action intended to encourage or induce the making, submission or
announcement of any Third Party Acquisition; or (ii) engage or participate in
any discussions or negotiations with any person (other than any officer,
director, controlled affiliate or employee of Company or any of its subsidiaries
or any investment banker, attorney or other advisor or representative of Company
or any of its subsidiaries) regarding, or furnish to any person any information
with respect to, or take any other action intended to facilitate any inquiries
or the making of any proposal that constitutes or may reasonably be expected to
lead to, any Third Party Acquisition. Stockholder will immediately cease and
cause to be terminated any discussions or negotiations between Stockholder and
any other parties that may be ongoing with respect to any Third Party
Acquisition. Stockholder will promptly advise Buyer orally and in writing of any
Third Party Acquisition proposal received by Stockholder or any request for
information with respect to any Third Party Acquisition received by Stockholder,
the material terms and conditions of such Third Party Acquisition or request and
the identity of the person making such Third Party Acquisition proposal or
request. This Agreement does not affect or restrict Stockholder's actions taken
or not taken in his or her capacity as a director or officer of Company.
7. Further Assurances. Stockholder shall perform such further acts and
execute any further documents and instruments as may reasonably be required to
vest in Buyer the power to carry out the provisions of this Agreement.
8. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to Buyer as follows:
(a) Stockholder has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Stockholder and this Agreement
constitutes the valid and binding obligation of Stockholder, enforceable in
accordance with its terms. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with or result in any violation of, or
default (with or without notice or lapse of time, or both) under any provision
of any trust agreement, 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 Stockholder or to Stockholder's property or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any person or public authority is required by or with respect to
Stockholder in connection with the execution and delivery of this Agreement or
the consummation by Stockholder of the transactions contemplated hereby.
(b) Stockholder is the record or beneficial owner of, or
otherwise has the right to control, the number of Shares set forth on the
signature page of this Agreement. Stockholder does not beneficially own, or have
any existing right to acquire, any securities of Company other than as indicated
on the signature page of this Agreement. Stockholder has voting power with
respect to the matters set forth in Section 2 hereof with respect to all of the
Shares set forth on the signature page hereof, with no limitations,
qualifications or restrictions on such rights except as may be set forth in any
trust agreement where Stockholder is acting as trustee.
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9. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties, except that Buyer may assign, in its
sole discretion, any or all of its rights, interests and obligations hereunder
to any direct or indirect wholly-owned subsidiary of Buyer. Subject to the
preceding sentence, this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective, heirs, legal representatives,
successors and permitted assigns of the parties hereto.
10. General Provisions.
(a) Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder shall be
specifically enforceable.
(b) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such costs and expenses.
(c) Amendments. This Agreement may be amended, modified or
supplemented only by a written instrument duly executed by the parties hereto.
(d) Notices. All notices that are required or permitted
hereunder shall be in writing and shall be sufficient if personally delivered or
sent by mail, facsimile message or Federal Express or other delivery service.
Any notices shall be deemed given upon the earlier of the date when received at,
or the third day after the date when sent by registered or certified mail or the
day after the date when sent by Federal Express to, the address or fax number
set forth below, unless such address or fax number is changed by notice to the
other party hereto:
If to Buyer:
Green Valley Acquisition Co., LLC
c/o Xxx Xxxxxxxxxxx and
Xxxx Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
If to Stockholder, to the Stockholder's address indicated on
the signature page to this Agreement.
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(e) Descriptive Headings: Definitions. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All capitalized terms used
herein but not defined herein shall have the meaning ascribed to them in the
Merger Agreement.
(f) Counterparts and Effectiveness. This Agreement may be
executed in two counterparts, each of which shall be binding as of the date
first written above, and all of which shall constitute one and the same
agreement.
(g) Entire Agreement. This Agreement (including the documents
and instruments referred to herein) and the Proxy constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
(h) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, without regard
to its provisions concerning conflict of laws.
IN WITNESS WHEREOF, Buyer and Stockholder have caused this Agreement
to be signed, as of the date first written above.
GREEN VALLEY ACQUISITION CO., LLC STOCKHOLDER
By: By:
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Signature
Name Name:
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Title Title:
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Address:
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Telephone:
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Shares owned of record or
beneficially or which
Stockholder otherwise
controls: ___________________
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