VOTING AGREEMENT
Exhibit 4
This VOTING AGREEMENT (the “Agreement”) is made and entered into as of November 17, 2005,
between and among STEAKHOUSE PARTNERS, INC., a Delaware corporation (“Parent”), and the undersigned
stockholder (the “Stockholder”) of ROADHOUSE GRILL, INC., a Florida corporation (the “Company”).
All capitalized terms herein not otherwise defined shall have the meaning ascribed to them in the
Merger Agreement (as defined below).
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the date hereof (the “Merger
Agreement”) by and among Parent, RGI ACQUISITION CORP., a Florida corporation and a wholly owned
subsidiary of Parent (“MERGER SUB”), and the Company, MERGER SUB is merging with and into the
Company (the “Merger”) and the Company, as the surviving corporation of the Merger, will thereby
become a wholly owned subsidiary of Parent;
WHEREAS, the Stockholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares of the outstanding
common stock, par value $0.03 per share, of the Company (the “Common Stock”) in the amounts
indicated on the final page of this Agreement (the “Shares”); and
WHEREAS, the Stockholder has pledged 6,035,466 of the Shares (the “Encumbered Shares”) to The
Bank of Nova Scotia, Laubuan Branch (the “Bank”), pursuant to a Memorandum of Deposit dated as of
April 19, 2001; and
WHEREAS, in consideration of the execution of the Merger Agreement by Parent, the Stockholder
agrees (i) not to (except as otherwise permitted by this Agreement) transfer or otherwise dispose
of any of such Stockholder’s Shares or New Shares (as defined below), or any and all other shares
or securities of the Company issued, issuable, exchanged or exchangeable in respect of any Shares
or New Shares (collectively with respect to each Stockholder, the “Securities”), and (ii) agrees to
vote such Stockholder’s Securities as set forth herein.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual
agreements, covenants, representations and warranties contained herein and intending to be legally
bound hereby, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. The Stockholder agrees to be subject to such Stockholder’s
Proxy (as defined in Section 3) and agrees that it will not take or permit any action to, directly
or indirectly, (i) transfer, sell, assign, give, pledge, exchange or pledge, or otherwise dispose
of or encumber the Stockholder’s Securities prior to the
Expiration Date, or to make any offer or agreement relating thereto, at any time prior to the
Expiration Date, except in each case (a) for or pursuant to the Bank’s existing security interest
in the Encumbered Shares, or (b) to an Affiliate of the Stockholder who is or agrees in writing to
be bound by this Agreement; (ii) deposit any of the Stockholder’s Securities into a voting trust or
enter into a voting agreement or arrangement with respect to such Stockholder’s Securities or grant
any proxy or power of attorney with respect thereto, in each case, in a manner that could
reasonably be expected to conflict with the Stockholder’s obligations hereunder, or (iii) enter
into any contract, option or other arrangement or undertaking with respect to the direct or
indirect sale, assignment, transfer, exchange or other disposition of or transfer of any interest
in or the voting of any of the Stockholder’s Securities, in each case, in a manner that could
reasonably be expected to conflict with the Stockholder’s obligations hereunder, except, in each
case, (a) as required under the terms of the security interest held by the Bank in the Encumbered
Shares, or (b) to or with an Affiliate of the Stockholder who is or agrees in writing to be bound
by this Agreement. As used herein, the term “Expiration Date” shall mean the earlier to occur of
(i) the Effective Time (as such terms is defined in the Merger Agreement), and (ii) the date on
which the Merger Agreement is terminated in accordance with its terms (including any extensions to
the Merger Agreement, as provided for therein).
1.2 New Shares. The Stockholder agrees that any shares or securities of the capital stock of
the Company that the Stockholder purchases or with respect to which the Stockholder otherwise
acquires beneficial ownership after the date of this Agreement and prior to the Expiration Date
(the “New Shares”), and any and all other shares or securities of the Company issued, issuable,
exchanged or exchangeable in respect of any New Shares, shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote. Prior to the Expiration Date, at every meeting of the
stockholders of the Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Stockholder agrees to vote such Stockholder’s Securities: (i)
in favor of approval of the Merger Agreement, the Merger, the transactions contemplated thereby and
any matter that could reasonably be expected to facilitate the Merger; and (ii) in favor of any
alternative structure as may be agreed upon by Parent and the Company to effect the acquisition by
Parent of the Company or of control of the Company; provided that such alternative
structure is on terms in the aggregate no less favorable to the Stockholder than the terms of the
Merger set forth in the Merger Agreement. Prior to the Expiration Date, the Stockholder will not
enter into any agreement or understanding with any person or entity to vote or give instructions in
any manner inconsistent with this Section 2. This Agreement is intended to bind the Stockholder as
a stockholder of the Company only with respect to the specific matters set forth herein.
3. Proxy. Concurrently with the execution of this Agreement, the Stockholder agrees
to deliver to Parent a proxy in the form attached hereto as Exhibit A
(the “Proxy”), which shall be irrevocable to the extent provided in Chapter 607.0722 of the
Florida Statutes covering the total number of Securities beneficially owned or as to which
beneficial ownership is acquired (as such term is defined in Rule 13d-3 under the Exchange Act) by
such Stockholder. The Proxy shall not be terminated by any act of the Stockholder or by operation
of law, whether by the death or incapacity of the Stockholder or by the occurrence of any other
event or events (including, without limitation, the termination of any trust or estate for which
the Stockholder is acting as a fiduciary or fiduciaries or the dissolution or liquidation of any
corporation or partnership). If between the execution hereof and the Expiration Date, the
Stockholder should die or become incapacitated, or if any trust or estate holding the Securities
should be terminated, or if any corporation or partnership holding the Securities should be
dissolved or liquidated, or if any other such similar event or events shall occur before the
Expiration Date, certificates representing the Securities shall be delivered by or on behalf of the
Stockholder in accordance with the terms and conditions of the Merger Agreement and this Agreement,
and actions taken by Parent hereunder shall be as valid as if such death, incapacity, termination,
dissolution, liquidation or other similar event or events had not occurred, regardless of whether
or not Parent has received notice of such death, incapacity, termination, dissolution, liquidation
or other event.
4. No Opposition. The Stockholder agrees not to take, or cause to be taken, any
action intended or which could reasonably be expected to impede, interfere with, delay or postpone
the consummation of the Merger and the transactions contemplated by the Merger Agreement. Subject
to the terms and conditions of this Agreement, the Stockholder agrees to take, or cause to be
taken, all actions necessary to facilitate, encourage or otherwise support the Merger and the
transactions contemplated by the Merger Agreement.
5. Acknowledgement. The parties acknowledge and agree that neither Parent, nor
Parent’s successors, assigns, subsidiaries, divisions, employees, officers, directors,
stockholders, agents and affiliates shall owe any duty to, whether in law or otherwise, or incur
any liability of any kind whatsoever, including without limitation, with respect to any and all
claims, losses, demands, causes of action, costs, expenses (including reasonable attorney’s fees)
and compensation of any kind or nature whatsoever to the Stockholder in connection with or as a
result of any voting by Parent of the Securities subject to the Proxy hereby granted to Parent at
any annual, special or other meeting or action or the execution of any consent of the stockholders
of the Company in accordance with the terms of the Proxy. The parties acknowledge that, pursuant
to the authority hereby granted under the Proxy, if, and only if, the Stockholder shall not comply
with its obligations under Section 2 above, Parent shall vote the Securities: (i) in favor of
approval of the Merger Agreement, the Merger, the transactions contemplated thereby and any matter
that could reasonably be expected to facilitate the Merger; and (ii) in favor of any alternative
structure as may be agreed upon by Parent and the Company to effect the acquisition by Parent of
the Company or of control of the Company; provided that such alternative structure is on
terms in the aggregate no less favorable to the Stockholder than the terms of the Merger set forth
in the Merger Agreement.
6. Intentionally deleted
7. Representations, Warranties and Covenants of Stockholder. The Stockholder hereby
represents, warrants and covenants to Parent that:
7.1 Ownership. The Stockholder is the sole legal and beneficial owner of the Shares, in each
case free and clear of all Liens other than the security interest in the Encumbered Shares held by
the Bank. As of the date hereof, the Stockholder does not beneficially own any shares or
securities of the capital stock of the Company other than such Stockholder’s Shares.
7.2 Authorization. The Stockholder has all requisite power and authority to execute and
deliver this Agreement and the Proxy and to consummate the transactions contemplated hereby and
thereby and has sole voting power and sole power of disposition, with respect to all of the Shares
with no restrictions on its voting rights or (other than as such rights of disposition with respect
to the Encumbered Shares may be limited by the terms of the security interest therein held by the
Bank) its rights of disposition pertaining thereto. The Stockholder has duly executed and
delivered this Agreement and this Agreement is a legal, valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws relating to or affecting creditor’s rights and remedies
generally, and subject as to enforceability of general principals of equity (whether considered in
a proceeding in equity or at law).
7.3 No Violation. Neither the execution, delivery and performance of this Agreement or the
Proxy nor the consummation of the transactions contemplated hereby and thereby will (i) except for
the amendment of the Stockholder’s Schedule 13D filed with the SEC with respect to the Common
Stock, require the Stockholder to file or register with, or obtain any material permit,
authorization, consent or approval of, any governmental agency, authority, administrative or
regulatory body, court or other tribunal, foreign or domestic, or any other entity; (ii) violate,
or cause a breach of or default (or an event which with notice or the lapse of time or both would
become a default) under, any contract, agreement or understanding to which the Stockholder is a
party or by which it is or the Shares are bound (including, without limitation the terms of the
security interest in the Encumbered Shares held by the Bank), or any statute or law, or any
judgment, decree, order, regulation or rule of any governmental agency, authority, administrative
or regulatory body, court or other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon the Stockholder; or (iii) cause the acceleration of any obligation
under or give to others any right of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on the Shares pursuant to any provision of any indenture,
mortgage, lien, lease, agreement, contract, instrument, order, judgment, ordinance, regulation or
decree to which the Stockholder is subject or by which the Stockholder or the Shares are bound. No
proceedings are pending, or, to the Knowledge of the Stockholder, threatened, which, if adversely
determined, will have a material adverse effect on any ability to vote or dispose of any of the
Shares. The Stockholder has
not previously assigned or sold any of the Shares to any third party, except that the Bank
holds the security interest in the Encumbered Shares.
8. Further Assurances. The Stockholder hereby covenants and agrees to execute and
deliver, or cause to be executed or delivered, such additional proxies, consents, waivers and other
instruments, and undertake any and all further action, necessary or desirable, in the reasonable
opinion of Parent, to carry out the purpose and intent of this Agreement; notwithstanding the
foregoing or anything else in this Agreement to the contrary, the Stockholder shall not be required
to submit to jurisdiction or taxation in any jurisdiction to which it is not subject as of the date
of this Agreement.
9. Termination. This Agreement and the Proxy shall terminate and shall have no
further force or effect as of the Expiration Date; provided that nothing herein shall
relieve any party from liability hereof for breaches of this Agreement prior to the Expiration
Date.
10. Miscellaneous.
10.1 Severability. If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, then the remainder of
this terms, provisions, covenants and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
10.2 Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be
binding upon and insure to the benefit of the parties hereto and their respective successors and
permitted assigns, but, except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may be assigned by either of
the parties without the prior written consent of the other; provided, however, that
each of Parent and MERGER SUB may freely assign its rights to another direct or indirect wholly
owned subsidiary of Parent or MERGER SUB without such prior written approval but no such assignment
shall relieve Parent or MERGER SUB of any of its obligations hereunder. Any purported assignment
without such consent shall be void.
10.3 Amendment and Modification. This Agreement may not be modified, amended, altered or
supplemented except by the execution and delivery of a written agreement executed by the parties
hereto.
10.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge that Parent will
be irreparably harmed and that there will be no adequate remedy at law for a violation of any of
the covenants or agreements of the Stockholder set forth herein. Therefore, it is agreed that upon
such violation, Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law or in equity.
10.5 Notices. All notices that are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be sufficient in all respects if given in writing and
delivered by hand or national overnight courier service, transmitted by telecopy or mailed by
registered or certified mail, postage prepaid (effective when delivered by hand or telecopy, one
day after dispatch by overnight courier, and three business days after dispatch by mail), as
follows:
(a) if to Parent or MERGER SUB, to:
Steakhouse Partners, Inc.
00000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax: (858) 635-397
Attn: Chief Executive Officer
00000 Xxxxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax: (858) 635-397
Attn: Chief Executive Officer
with a copy to:
Xxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) if to the Stockholder, to the address set forth beneath such
Stockholder’s signature below.
Stockholder’s signature below.
10.6 Governing Law. This Agreement shall be governed by, construed and enforced in accordance
with the internal laws of the State of Delaware without giving effect to any choice or conflict of
law provision, rule or principle (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Delaware.
10.7 Entire Agreement. This Agreement, the Proxy and the Merger Agreement contain the entire
understanding of the parties in respect of the subject matter hereof, and supersede all prior
negotiations and understandings between the parties with respect to such subject matters.
10.8 Counterparts. This Agreement may be executed in several counterparts, each of which
shall be an original, but all of which together shall constitute one and the same agreement.
10.9 Effect of Headings. The section headings herein are for convenience only and shall not
affect the construction or interpretation of this Agreement.
10.10 Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in the state or federal
court of the State of Delaware, and each of the parties hereby consents to the jurisdiction of such
court (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding which is brought in any such court has been brought in
an inconvenient forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party as provided in this
Section 10.10 shall be deemed effective service of process on such party.
10.11 No Limitation on Actions of the Stockholder as Director. Notwithstanding anything to
the contrary in this Agreement, in the event the Stockholder is or becomes or has a representative
or designee who is or becomes an officer or director of the Company, nothing in this Agreement is
intended or shall be construed to restrict any officer or director of the Company in the exercise
of his or her fiduciary duties as an officer or director of the Company. The Stockholder has
executed this Agreement in the Stockholder’s capacity as the record and beneficial owner of the
Stockholder’s securities.
10.12 Remedies Not Exclusive. All rights, powers and remedies provided under this Agreement
or otherwise available in respect hereof at law or in equity will be cumulative and not
alternative, and the exercise of any thereof by either party will not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
10.13 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OT OF OR RELATED TO THIS AGREEMENT, THE PROXY OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
10.14 Expenses. If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement or the Proxy, the prevailing party shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
10.15 Disclosure. The Stockholder and the Parent each hereby authorizes the other to publish
or disclose its identity and the nature of its commitments, arrangements and understandings under
this Agreement in any reports required to be filed with the SEC.
10.16 Consent of Spouse. If the Stockholder is married, the Stockholder agrees to deliver to
Parent the Consent of Spouse attached hereto as Exhibit B on the date hereof.
10.17 Legend on Share Certificates. The Stockholder shall use its reasonable best efforts to
deliver and to cause the Bank to deliver each certificate representing any Securities for
endorsement by the Company with a legend reading substantially as follows:
“THE RIGHT TO VOTE THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN A VOTING AGREEMENT, A COPY OF WHICH IS ON FILE AT THE CORPORATION’S
PRINCIPAL PLACE OF BUSINESS.”
[Remainder of the Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly executed on the
day and year first above written.
| STEAKHOUSE PARTNERS, INC. | ||||
| By: | /s/ A. Xxxxx Xxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| STOCKHOLDER | ||||
| By: | /s/ Xxxxxxx Xxx | |||
| Authorized Signatory | ||||
| Stockholder’s Address for Notice: | ||||
| x/x Xxxxxxx Xxxxx Xxxxxx 00xx Xxxxx, Xxxxxx Xxxxxxx, XX Plaza 000 Xxxxx Xxxxx Xxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxxx Fax: 000-0000-0000 |
||||
| Shares beneficially owned: | ||||
| 19,440786 shares of the Company’s common stock, par value $0.03 per share | ||||
SIGNATURE PAGE TO VOTING AGREEMENT
EXHIBIT A
PROXY
TO VOTE STOCK OF
THE COMPANY
The undersigned stockholder of ROADHOUSE GRILL, INC., a Florida corporation (the “Company”),
hereby irrevocably (to the full extent permitted by Chapter 607.0722 of the Florida Statutes,
except as provided below) appoints A. Xxxxx Xxxxxxxx of STEAKHOUSE PARTNERS, INC., a Delaware
corporation (“Parent”), as the sole and exclusive attorney and proxy of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and related rights (to
the full extent that the undersigned is entitled to do so) with respect to all of the shares of
capital stock of the Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of the Company issued, issuable, exchanged
or exchangeable in respect thereof on or after the date hereof (collectively, the “Shares”) in
accordance with the terms of this Proxy. The Shares beneficially owned by the undersigned
stockholder of the Company as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned’s execution of this Proxy, any and all prior proxies given by the undersigned
with respect to any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent provided in Chapter 607.0722 of the Florida
Statutes), is coupled with an interest and is granted pursuant to that certain Voting Agreement
dated as of November 17, 2005, by and among Parent and the undersigned stockholder (the “Voting
Agreement”), and is granted in consideration of Parent entering into that certain Agreement and
Plan of Merger, dated as of November 17, 2005 (the “Merger Agreement”), by and among the Company,
Parent and RGI ACQUISITION CORP., a Florida and wholly owned subsidiary of Parent (“MERGER SUB”).
The Merger Agreement provides for the merger of MERGER SUB with and into the Company (the “Merger”)
with the Company as the surviving corporation. As used herein, the term “Expiration Date” shall
mean the earlier to occur of (i) the Effective Time (as such terms is defined in the Merger
Agreement), and (ii) the date on which the Merger Agreement is terminated in accordance with its
terms (including any extensions to the Merger Agreement, as provided for therein).
If, and only if, the undersigned shall have failed to comply with its obligations under
Section 2 of the Voting Agreement, the attorney and proxy named above are hereby authorized,
empowered and directed by the undersigned, and the attorney and proxy named above shall at any time
prior to the Expiration Date, act as the undersigned’s attorney and proxy to vote the Shares, and
to exercise all voting and other rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents pursuant to Chapter 607.0704
of the Florida
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Statutes), at every annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof and in every written consent in lieu of such
meeting: (i) in favor of approval of the Merger Agreement, the Merger, the transactions
contemplated thereby and any matter that could reasonably be expected to facilitate the Merger; and
(ii) in favor of any alternative structure as may be agreed by Parent and the Company to effect the
acquisition by Parent of the Company or of control of the Company; provided that such
alternative structure is on terms in the aggregate no less favorable to the Stockholder than the
terms of the Merger set forth in the Merger Agreement. The attorney and proxy named above may not
exercise this Proxy on any other matter except as provided above. The undersigned stockholder may
vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the successors and assigns
of the undersigned.
This Proxy is irrevocable (to the extent provided in Chapter 607.0722 of the Florida
Statutes). This Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: November ___, 2005
| (Signature of Stockholder) | ||
| (Print Name of Stockholder) | ||
| Shares beneficially owned: | ||
| shares of the Company’s common stock, par value $0.03 per share |
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EXHIBIT B
CONSENT OF SPOUSE
I,
________________________,
spouse of
________________________(“Stockholder”),
have read and
hereby approve the foregoing Voting Agreement. In consideration of the benefits to which the
Stockholder is entitled under the Voting Agreement, I hereby agree to be irrevocably bound by the
Voting Agreement and further agree that any community property or other such interest shall be
similarly bound by the Voting Agreement. I hereby appoint my spouse as my attorney-in-fact with
respect to any amendment or exercise of any rights under the Voting Agreement.
| Spouse of Stockholder |
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