Voting Agreement
This Voting Agreement (this “Agreement”),
is made and entered into as of May 9, 2010, by and between MRRC Hold Co., a
Delaware corporation (“Parent”),
and the undersigned shareholder (“Shareholder”)
of Xxxxx’x Restaurants, Inc., a Delaware corporation (the “Company”).
Recitals
A. Concurrently
with the execution of this Agreement, Parent, MRRC Merger Co., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger
Sub”), and the Company are entering into an Agreement and Plan of Merger
(the “Merger
Agreement”) pursuant to which Merger Sub will be merged with and into the
Company (the “Merger”). Capitalized
terms used but not defined herein shall have the meanings given to them in the
Merger Agreement.
B. Shareholder
is the record holder of such number of outstanding shares of Company Common
Stock as is indicated on the signature pages to this Agreement.
C. As
a material inducement to enter into the Merger Agreement, Parent desires
Shareholder to agree, and Shareholder is willing to agree, to vote the Shares
(as defined in Section 1.1 below), and such other
shares of capital stock of the Company over which Shareholder has voting power,
so as to facilitate consummation of the Merger.
In consideration of the foregoing and
the representations, warranties, covenants and agreements set forth in this
Agreement, the parties agree as follows:
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1.
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Voting of
Shares.
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1.1 Shares. The
term “Shares”
shall mean all issued and outstanding shares of Company Common Stock owned of
record or beneficially owned by Shareholder or over which Shareholder exercises
voting power, in each case, as of the date of this
Agreement. Shareholder agrees that any shares of capital stock of the
Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership or over which Shareholder exercises
voting power after the date of this Agreement and prior to the termination of
this Agreement pursuant to Section 4 below shall be
subject to the terms and conditions of this Agreement to the same extent as if
they constituted Shares as of the date hereof. It is expressly agreed
that “Shares”
shall exclude shares of capital stock of the Company that, by virtue of
Stockholder’s ownership of options or non-voting convertible securities, are
deemed to be beneficially owned by Stockholder pursuant to Rules
13d-3(d)(1)(i)(A) or (B) until such time that Stockholder exercises such options
for or converts such convertible securities into the underlying capital stock of
the Company.
1.2 Agreement to Vote
Shares. Shareholder hereby covenants and agrees that during
the period commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 4 hereof, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the shareholders of the Company, however called, and in any action
by written consent of the shareholders of the Company, Shareholder shall appear
at the meeting or otherwise cause any and all Shares to be counted as present
thereat for purposes of establishing a quorum and vote (or cause to be voted)
any and all Shares: (i) in favor of the approval of the principal
terms of the Merger; and (ii) against any Takeover
Proposal. Shareholder further agrees not to enter into any agreement
or understanding with any person or entity the effect of which would be
inconsistent with or violative of any provision contained in this Section
1.2.
1.3 Irrevocable
Proxy. Concurrently with the execution of this Agreement,
Shareholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit I (the
“Proxy”),
which shall be irrevocable (to the fullest extent permitted by law), with
respect to the Shares, subject to the other terms of this
Agreement.
1.4 Waiver of Appraisal
Rights. Shareholder hereby irrevocably and unconditionally
waives, and agrees not to exercise or assert, any rights of appraisal,
dissenters’ rights or similar rights at any time in connection with the
Merger.
1.5 Adjustments Upon Changes in
Capitalization. In the event of any change in the number of
issued and outstanding shares of Company Common Stock by reason of any stock
split, reverse split, stock dividend (including any dividend or distribution of
securities convertible into Company Common Stock), combination, reorganization,
recapitalization or other like change, conversion or exchange of shares, or any
other change in the corporate or capital structure of the Company, the term
“Shares”
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
2. Transfer and Other
Restrictions. Shareholder represents, covenants and agrees
that, except for the proxy granted in Section 1.3
hereof and as contemplated by this Agreement, and except as agreed to by Parent
in writing: (i) Shareholder shall not, directly or indirectly, during the period
commencing on the date hereof and continuing until this Agreement terminates
pursuant to Section 4 hereof, offer for sale or
agree to sell, transfer, tender, assign, pledge, hypothecate or otherwise
dispose of or enter into any contract, option or other arrangement or
understanding with respect to, or consent to, the offer for sale, sale,
transfer, tender, pledge, hypothecation, encumbrance, assignment or other
disposition of, or create any Lien of any nature whatsoever with respect to, any
or all of the Shares or any interest therein (ii) Shareholder shall not grant
any proxy or power of attorney, or deposit any Shares into a voting trust or
enter into a voting agreement or other arrangement, with respect to the voting
of Shares (each a “Voting
Proxy”) except (A) as provided by this Agreement, (B) proxies delivered
to management in connection with proposals, including the election of directors,
submitted to stockholders at the 2010 annual meeting of stockholders, so long as
such proxies do not contravene Shareholder's obligations pursuant to
Section 1.2 hereof or (C) by order of a court of competent jurisdiction; and
(iii) Shareholder has not granted, entered into or otherwise created any Voting
Proxy which is currently (or which will hereafter become) effective, and if any
Voting Proxy has been created, such Voting Proxy is hereby
revoked. Notwithstanding the foregoing, Shareholder may transfer any
or all of the Shares (i) as a bona fide gift or gifts; (ii) by testamentary or
intestate succession or will, or by operation of law, in which case this
Agreement shall bind the transferee; (iii) in connection with estate or
charitable planning purposes, including Transfers to relatives, trusts and
charitable organizations; or (iv) under any written trading plan adopted prior
to the date of this Agreement under Rule 10b5-1 of the Exchange Act, provided that in the case of
the foregoing clauses (i) or (iii), it shall be a condition to such transfer
that each donee thereof executes and delivers to Parent (A) an agreement with
Parent in the form of this Agreement and (B) an irrevocable proxy in the form
attached hereto as Exhibit I, in each
case with respect to any and all Shares so transferred.
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3. Representations and
Warranties of Shareholder. Shareholder represents and warrants
to Parent that:
3.1 Authority;
Validity. Shareholder has all requisite capacity, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Shareholder and the consummation by Shareholder of the transactions contemplated
hereby have been duly and validly authorized by all necessary action on the part
of Shareholder. This Agreement has been duly executed and delivered
by Shareholder. If this Agreement is being executed in a
representative or fiduciary capacity with respect to Shareholder, the person
signing this Agreement has full power and authority to enter into and perform
this Agreement.
3.2 Non-Contravention. To
the best of Shareholder’s knowledge, the execution, delivery and performance of
this Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof will not, contravene, conflict
with, or result in any violation of, breach of or default by (with or without
notice or lapse of time, or both) Shareholder under, or give rise to a right of
termination, cancellation or acceleration of any obligation under, or result in
the creation of any Lien upon any of the properties or assets of Shareholder
under, any provision of (i) Shareholder's charter, bylaws, partnership agreement
or other organizational documents, if applicable, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to Shareholder
or (iii) any judgment, order, decree, statute, law, ordinance, injunction, rule
or regulation applicable to Shareholder or any of Shareholder’s properties or
assets, other than any such conflicts, violations, defaults, rights, or Liens
that, individually or in the aggregate, would not impair the ability of
Shareholder to perform Shareholder’s obligations hereunder or prevent, limit or
restrict in any respect the consummation of any of the transactions contemplated
hereby. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which Shareholder is settlor or
trustee or any other person or entity, including any Governmental Authority,
whose consent, approval, order or authorization is required by or with respect
to Shareholder for the execution, delivery and performance of this Agreement by
Shareholder or the consummation by Shareholder of the transactions contemplated
hereby.
3.3 Title. Shareholder
is the record owner of the shares of Company Common Stock indicated on the
signature pages hereto, which, on and as of the date hereof, are free and clear
of any Liens that, individually or in the aggregate, would impair the ability of
Shareholder to perform Shareholder’s obligations hereunder or prevent, limit or
restrict in any respect the consummation of any of the transactions contemplated
hereby. The number of Shares set forth on the signature pages hereto
are the only Shares owned of record or beneficially owned by Shareholder or over
which Shareholder exercises sole voting power and, except as set forth on such
signature pages, Shareholder holds no options or warrants to purchase or rights
to subscribe for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any securities of the
Company.
3
3.4 Power. Unless
otherwise indicated on the signature pages hereto, Shareholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Section 1 and Section 2 hereof and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
3.5 Brokers. Parent
shall not be obligated or otherwise liable for any broker’s, finder’s or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of any
Shareholder.
4. Effectiveness; Termination;
No Survival. This Agreement shall become effective upon its
execution by Shareholder and Parent and upon the execution of the Merger
Agreement. This Agreement may be terminated at any time by mutual
written consent of Shareholder and Parent. This Agreement, and the
obligations of Shareholder hereunder, including, without limitation,
Shareholder’s obligations under Section 1 and
Section 2 above, shall terminate, without any
action by the parties hereto, upon the earlier to occur of the following: (i)
such date and time as the Merger shall become effective in accordance with the
terms and provisions of the Merger Agreement; (ii) such date and time as the
Merger Agreement shall have been validly terminated pursuant to Article 8
thereof and (iii) upon the amendment of the Merger Agreement without
Stockholder’s prior written consent in the event that such amendment should
adversely impact the amount of consideration such Stockholder is entitled to
receive pursuant to the Merger Agreement.
5. Further
Assurances. Subject to the terms of this Agreement, from time
to time, Shareholder shall execute and deliver such additional documents
(including, on request, additional confirmatory proxies and written waivers of
appraisal rights) and use commercially reasonable efforts to take, or cause to
be taken, all such further actions, and to do or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement.
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6.
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Miscellaneous.
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6.1 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, the
remainder of the 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.
6.2 Binding Effect and
Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure 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. Any purported
assignment in violation of this Section 6.2 shall be
void.
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6.3 Amendments and
Modification. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.4 Specific Performance;
Injunctive Relief; Attorneys Fees. 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
Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any 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 and Shareholder hereby irrevocably and
unconditionally waives any objection to Parent seeking so to enforce such
covenants and agreements by specific performance, injunctive relief and other
means. If any action, suit or other proceeding (whether at law, in
equity or otherwise) is instituted concerning or arising out of this Agreement
or any transaction contemplated hereunder, the prevailing party shall recover,
in addition to any other remedy granted to such party therein, all such party’s
costs and attorneys fees incurred in connection with the prosecution or defense
of such action, suit or other proceeding.
6.5 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, mailed by certified mail
(return receipt requested) or sent by overnight courier or by facsimile (upon
confirmation of receipt) to the parties at the following addresses or at such
other addresses as shall be specified by like notice:
if to
Parent, to:
MRRC Hold
Co.
x/x Xxxx
Xxxx Xxxxxxx, X.X.
000
Xxxxxxxxx Xxxxxx, Xxxxx Xxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Fax: (000)
000-0000
Attention: Xxxxxxx
Xxxxxxx and Xxxxx Xxxxxxxxx
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with
a copy to:
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Xxxxx
Xxxx LLP
Seaport
World Trade Center West
000
Xxxxxxx Xxxxxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Fax: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxxxx, Esq.
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if
to Shareholder, at its address set forth on the signature pages
hereto,
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with a
copy to each of:
[ ]
and:
DLA Piper
LLP (US)
0000
Xxxxxxxxxx Xxxxxx
Xxxx Xxxx
Xxxx, Xxxxxxxxxx 00000
Fax: (000)
000-0000
Attention:
Xxxxx Xxxx Xxxxxxx, Esq.
6.6 Governing Law; Submission to
Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any state or Federal court located in the
State of Delaware or in the Court of Chancery of the State of Delaware in the
event any dispute arises out of this Agreement, (ii) agrees that it shall not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and (iii) agrees that it shall not bring any
action relating to this Agreement in any court other than a state or Federal
court located in the State of Delaware or the Court of Chancery of the State of
Delaware.
6.7 Entire
Agreement. The Merger Agreement, this Agreement and the Proxy
granted hereunder constitute and contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersede any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter
hereof.
6.8 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
6.9 Captions. The
captions to sections of this Agreement have been inserted only for
identification and reference purposes and shall not be used to construe or
interpret this Agreement.
6.10 Shareholder
Capacity. Notwithstanding anything herein to the contrary,
Shareholder makes no agreement or understanding herein in his capacity as a
director or officer of the Company or any subsidiary of the Company, and the
agreements set forth herein shall in no way restrict Shareholder in the exercise
of his fiduciary duties as a director or officer of the Company or any
subsidiary of the Company or limit or affect any actions taken by Shareholder in
his capacity as an officer or director of the Company or any subsidiary of the
Company. Shareholder has executed this Agreement solely in his
capacity as the record and/or beneficial holder of Shares.
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In
Witness Whereof, the parties hereto have caused this Voting Agreement to be
executed as of the date first above written.
| MRRC Hold Co. | |||
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By:
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/s/ Xxxxx X. Xxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxx | |||
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Title: President
and Chief Executive Officer
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| Shareholder: | |||
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/s/ Xxxxx Xxxxx | ||
| Xxxxx Xxxxx | |||
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Shareholder’s
Address for Notice:
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxx Xxxxx
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Outstanding
Shares of Company Common
Stock
Owned by Shareholder:
865,347
(direct);
1,440
(indirect, held by children w/ Xxxxx X.
Xxxxx,
as
custodian)
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7
Exhibit
I
Irrevocable
Proxy
The
undersigned shareholder (“Shareholder”)
of Xxxxx’x Restaurants, Inc., a Delaware corporation (the “Company”),
hereby irrevocably appoints and constitutes the members of the Board of
Directors of MRRC Hold Co., a Delaware corporation (“Parent”),
and each such Board member (collectively, the “Proxyholders”),
the agents, attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned’s rights
with respect to the shares of capital stock of the Company which are listed
below (the “Shares”),
and any and all other shares or securities issued or issuable in respect thereof
on or after the date hereof and prior to the date this proxy terminates, to vote
the Shares as follows: the Proxyholders named above are empowered at
any time prior to termination of this proxy to exercise all voting and other
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual, special
or adjourned meeting of the Company’s shareholders, and in every written consent
in lieu of any such meeting, or otherwise, (i) in favor of the adoption of that
certain Agreement and Plan of Merger by and among Parent, MRRC Merger Co., a
Delaware corporation and wholly owned subsidiary of Parent (“Merger
Sub”), and the Company as in effect or as may be amended (the “Merger
Agreement”); (ii) in favor of such other matters in connection with the
Merger (as defined in the Merger Agreement) as any such Proxyholder deems
appropriate; and (iii) against any Takeover Proposal (as defined in the Merger
Agreement).
The
Proxyholders may not exercise this proxy on any other
matter. Shareholder may vote the Shares on all matters other than
those set forth in the immediately preceding paragraph. The proxy
granted by Shareholder to the Proxyholders hereby is granted as of the date of
this Irrevocable Proxy in order to secure the obligations of Shareholder set
forth in Section 1.2 of the Voting Agreement, is
coupled with an interest, and is irrevocable (to the fullest extent permitted by
law).
This
proxy will terminate upon the termination of the Voting Agreement in accordance
with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms; provided, however, that
proxies delivered to management in connection with proposals, including the
election of directors, submitted to stockholders at the 2010 annual meeting of
stockholders shall not be revoked and may be given so long as such proxies do
not contravene Shareholder’s obligations pursuant to Section 1.2 of the Voting
Agreement. Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of the undersigned. The
undersigned Shareholder authorizes the Proxyholders to file this proxy and any
substitution or revocation of substitution with the Secretary of the Company and
with any Inspector of Elections at any meeting of the shareholders of the
Company.
* * * * *
8
This
proxy is irrevocable and shall survive the insolvency, incapacity, death or
liquidation of the undersigned (to the fullest extent permitted by
law).
Dated: May
9, 2010
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/s/ Xxxxx Xxxxx | |
| Signature | |||
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Xxxxx Xxxxx
Name (and Title)
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Shares
beneficially owned: 866,787
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In
Witness Whereof, the parties hereto have caused this Voting Agreement to be
executed as of the date first above written.
| MRRC Hold Co. | |||
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By:
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/s/ Xxxxx X. Xxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxx | |||
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Title: President
and Chief Executive Officer
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| Shareholder: | |||
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/s/ Xxxxxx X. Xxxxxxx | ||
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Xxxxxx
X. Xxxxxxx
Shareholder’s
Address for Notice:
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxxx
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Outstanding
Shares of Company Common
Stock
Owned by Shareholder:
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13,000
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10
Exhibit
I
Irrevocable
Proxy
The
undersigned shareholder (“Shareholder”)
of Xxxxx’x Restaurants, Inc., a Delaware corporation (the “Company”),
hereby irrevocably appoints and constitutes the members of the Board of
Directors of MRRC Hold Co., a Delaware corporation (“Parent”),
and each such Board member (collectively, the “Proxyholders”),
the agents, attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned’s rights
with respect to the shares of capital stock of the Company which are listed
below (the “Shares”),
and any and all other shares or securities issued or issuable in respect thereof
on or after the date hereof and prior to the date this proxy terminates, to vote
the Shares as follows: the Proxyholders named above are empowered at
any time prior to termination of this proxy to exercise all voting and other
rights (including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual, special
or adjourned meeting of the Company’s shareholders, and in every written consent
in lieu of any such meeting, or otherwise, (i) in favor of the adoption of that
certain Agreement and Plan of Merger by and among Parent, MRRC Merger Co., a
Delaware corporation and wholly owned subsidiary of Parent (“Merger
Sub”), and the Company as in effect or as may be amended (the “Merger
Agreement”); (ii) in favor of such other matters in connection with the
Merger (as defined in the Merger Agreement) as any such Proxyholder deems
appropriate; and (iii) against any Takeover Proposal (as defined in the Merger
Agreement).
The
Proxyholders may not exercise this proxy on any other
matter. Shareholder may vote the Shares on all matters other than
those set forth in the immediately preceding paragraph. The proxy
granted by Shareholder to the Proxyholders hereby is granted as of the date of
this Irrevocable Proxy in order to secure the obligations of Shareholder set
forth in Section 1.2 of the Voting Agreement, is
coupled with an interest, and is irrevocable (to the fullest extent permitted by
law).
This
proxy will terminate upon the termination of the Voting Agreement in accordance
with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms; provided, however, that
proxies delivered to management in connection with proposals, including the
election of directors, submitted to stockholders at the 2010 annual meeting of
stockholders shall not be revoked and may be given so long as such proxies do
not contravene Shareholder’s obligations pursuant to Section 1.2 of the Voting
Agreement. Any obligation of the undersigned hereunder shall be
binding upon the successors and assigns of the undersigned. The
undersigned Shareholder authorizes the Proxyholders to file this proxy and any
substitution or revocation of substitution with the Secretary of the Company and
with any Inspector of Elections at any meeting of the shareholders of the
Company.
* * * * *
This
proxy is irrevocable and shall survive the insolvency, incapacity, death or
liquidation of the undersigned (to the fullest extent permitted by
law).
Dated: May
9, 2010
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/s/ Xxxxxx X. Xxxxxxx | |
| Signature | |||
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Xxxxxx X. Xxxxxxx
Name (and Title)
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Shares
beneficially owned: 13,000
