EXHIBIT 1
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT (this "Voting Agreement"), dated as of May 14, 2013, by
and between Bellisio Foods, Inc., a Minnesota corporation ("Parent"), and the
undersigned stockholder (the "Stockholder") of Overhill Farms, Inc., a Nevada
corporation (the "Company").
WITNESSETH:
WHEREAS, the Company and Parent intend to enter into an Agreement and
Plan of Merger (as the same may be amended from time to time, the "Merger
Agreement"), pursuant to which, among other things, Bellisio Acquisition
Corp., a Nevada corporation and wholly owned subsidiary of Parent, will be
merged with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder owns beneficially or of
record or has the power to vote, or direct the vote of, the number and class
or series of shares of Company Common Stock (as defined below) as set forth on
the signature page hereto;
WHEREAS, the Merger Agreement is required under the Nevada Revised
Statutes (the "NRS") to be approved by the affirmative vote of the holders of
a majority of the outstanding shares of the Company?s common stock entitled to
vote; and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, and in order to induce Parent to enter into the Merger
Agreement, the Stockholder has agreed to enter into this Voting Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) "Beneficially Own", "Beneficial Ownership" or "beneficial
Owner" with respect to any Company Common Stock means having "beneficial
Ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons who are Affiliates of such Person and
who together with such Person would constitute a "group" within the meaning of
Section 13(d)(3) of the Exchange Act. The term Beneficially Owned shall
exclude Shares over which the Stockholder does not hold the power to vote
pursuant to arrangements with such Stockholder's investment management
clients.
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(b) "Company Common Stock" means the common stock of the Company,
par value $0.01 per share.
(c) "Shares" means shares of Company Common Stock.
(d) "Stockholder's Shares" means all Shares held of record or
Beneficially Owned by the Stockholder, whether currently issued and
outstanding or hereinafter acquired, including, without limitation, any
Company Options held of record or Beneficially Owned by the Stockholder and
any Shares acquired pursuant to Company Benefit Plans and held of record or
Beneficially Owned by the Stockholder.
(e) Capitalized terms used but not defined in this Voting
Agreement shall have the meanings ascribed to them in the Merger Agreement.
ARTICLE II
TRANSFER AND VOTING OF SHARES
2.1 No Transfer of Shares. The Stockholder shall not, directly or
indirectly, (a) sell, pledge, encumber, assign, transfer or otherwise dispose
of any or all of the Stockholder's Shares or any interest in the Stockholder's
Shares, (b) deposit the Stockholder's Shares or any interest in the
Stockholder's Shares into a voting trust or enter into a voting agreement or
arrangement with respect to any of his, her or its Shares or grant any proxy
or power of attorney with respect thereto (other than as contemplated herein)
or (c) enter into any contract, commitment, option or other arrangement or
undertaking with respect to the direct or indirect acquisition or sale,
assignment, pledge, encumbrance, transfer or other disposition (whether by
actual disposition or effective economic disposition due to hedging, cash
settlement or otherwise) of any of the Stockholder's Shares (any such action
in clause (a), (b) or (c) above, a "transfer"). Notwithstanding anything to
the contrary in the foregoing sentence, this Section 2.1 shall not prohibit a
transfer of the Stockholder's Shares by the Stockholder (i) if the Stockholder
is an individual, (A) to any member of the Stockholder's immediate family or
to a trust for the benefit of the Stockholder or any member of the
Stockholder's immediate family, or (B) upon the death of the Stockholder to
such Stockholder's heirs, or (ii) if the Stockholder is not a natural person,
(A) to the extent required to comply with investment management client
instructions; (B) pro rata transfers resulting from withdrawals of investment
management client assets under management; or (C) to one or more partners or
members of the Stockholder or to an Affiliate under common control with the
Stockholder, as applicable; provided, however, that in each case a transfer
shall be permitted only if as a condition precedent to the effectiveness of
such transfer, the transferee agrees in a writing, satisfactory in form and
substance to Parent, to be bound by all of the terms of this Voting Agreement.
2.2 Vote in Favor of the Merger and Related Matters. The Stockholder,
solely in the Stockholder's capacity as a stockholder of the Company (and not,
if applicable, in the Stockholder's capacity as an officer or director of the
Company), irrevocably and unconditionally agrees that, from and after the date
hereof until the Expiration Date (as defined below), at any meeting of the
stockholders of the Company or any adjournment thereof, or in
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connection with any action by written consent of the stockholders of the
Company, the Stockholder shall:
(a) appear at each such meeting or otherwise cause the
Stockholder's Shares Beneficially Owned or owned of record by the Stockholder
to be counted as present thereat for purposes of calculating a quorum;
(b) vote (or cause to be voted), in person or by proxy, or deliver
a written consent (or cause a consent to be delivered) covering, all of the
Stockholder's Shares: (i) in favor of, and will otherwise support, the
adoption and approval of the Merger Agreement and approval of the Merger and
the other transactions contemplated by the Merger Agreement, including, but
not limited to, any stockholder vote required by the Second Amended and
Restated Articles of Incorporation of the Company (the "Articles") and/or
Chapter 92A of the NRS, (ii) in favor of any other matter reasonably relating
to the consummation or facilitation of, or otherwise in furtherance of, the
transactions contemplated by the Merger Agreement and (iii) except for the
Merger and the Merger Agreement, against, and not otherwise support, any
Acquisition Proposal or any other action, agreement or transaction submitted
for approval of the Company's stockholders that is intended, or could
reasonably be expected, to materially impede, interfere or be inconsistent
with, delay, postpone, discourage or materially and adversely affect
consummation of the Merger, including, without limitation, any extraordinary
transaction, merger, consolidation, sale of assets, recapitalization or other
business combination involving the Company or any other action or agreement
that could reasonably be expected to result in a material breach of any
covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or that could reasonably be expected
to result in any of the conditions to the Company's obligations under the
Merger Agreement not being fulfilled or satisfied;
2.3 Consent to Consideration. The Stockholder acknowledges that he,
she or it is familiar with or has reviewed the Merger Agreement, understands
that the only consideration that he, she or it is entitled to receive as a
stockholder of the Company in connection with the Merger is the consideration
to be paid pursuant to the Merger Agreement and the Stockholder hereby
consents to such consideration.
2.4 Termination. This Voting Agreement, the obligations of the
Stockholder pursuant to this Voting Agreement shall terminate upon the
earliest to occur of (a) such date and time as the Merger Agreement shall have
been validly terminated pursuant to its terms, (b) such date and time as the
Merger shall have become effective in accordance with the terms and provisions
of the Merger Agreement, (c) November 14, 2013 and (d) such time as the Merger
Agreement is amended to change the form, or reduce the amount, of Merger
Consideration to be paid pursuant thereto (such earliest date, the "Expiration
Date"); provided, however, that if the Merger shall become effective,
the Stockholder's obligations pursuant to Articles IV and V hereof shall survive
such termination as shall any unfulfilled obligations of the Stockholder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent as follows:
3.1 Authorization; Binding Agreement. The Stockholder has all legal
right, power, authority and capacity to execute and deliver this Voting
Agreement, to perform his, her or its obligations hereunder, and to consummate
the transactions contemplated hereby. This Voting Agreement has been duly and
validly executed and delivered by or on behalf of the Stockholder and, assuming
the due authorization, execution and delivery of this Voting Agreement by
Parent, constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms (except as
enforcement may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar Laws of general applicability affecting
creditors' rights generally and by general principles of equity).
3.2 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Voting Agreement to Parent
by the Stockholder does not, and the performance of this Voting Agreement will
not, (i) conflict with or violate any Law applicable to the Stockholder or by
which the Stockholder is bound or affected, (ii) violate or conflict with the
Articles, the Second Amended and Restated Bylaws of the Company or the articles
of incorporation or bylaws or other equivalent organizational documents of the
Stockholder, if applicable, or (iii) except where it would not interfere with
the Stockholder's ability to perform his, her or its obligations hereunder,
result in or constitute (with or without notice or lapse of time or both) any
breach of or default under, or give to another party any right of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien or encumbrance or restriction on any of the property or assets of the
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets is bound or affected. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Stockholder is a trustee whose consent is required for the
execution and delivery of this Voting Agreement or the consummation by the
Stockholder of the transactions contemplated by this Voting Agreement.
(b) The execution and delivery of this Voting Agreement to Parent
by the Stockholder does not, and the performance of this Voting Agreement will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any third party or any governmental or regulatory
authority, domestic or foreign, except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not interfere with the Stockholder's ability to perform
his, her or its obligations hereunder.
3.3 Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending or, to the knowledge
of the Stockholder or any of the Stockholder's Affiliates, threatened before
any agency, administration, court or tribunal, foreign
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or domestic, against
the Stockholder or any of the Stockholder's Affiliates or any of their
respective properties or assets or any of their respective officers or
directors, in the case of a corporate entity (in their capacities as such),
or any of their respective officers or partners (in the case of a
partnership), or any of their respective officers, managers or members (in
the case of a limited liability company), that would interfere with the
Stockholder's ability to perform his, her or its obligations hereunder.
There is no judgment, decree or order against the Stockholder or any of the
Stockholder's Affiliates, or, to the knowledge of the Stockholder, any of
their respective directors or officers (in their capacities as such), in the
case of a corporate entity, or any of their respective officers or partners
(in the case of a partnership), or any of their respective officers, managers
or members (in the case of a limited liability company), that would prevent,
enjoin, alter or delay any of the transactions contemplated by this Voting
Agreement, or that would otherwise interfere with the Stockholder's ability
to perform its obligations hereunder.
3.4 Title to Shares. The Stockholder is the record or beneficial owner
of the Stockholder's Shares and has good title to the Stockholder's Shares
free and clear of all liens, encumbrances, security interests, charges,
claims, proxies or voting restrictions other than pursuant to this Voting
Agreement and as described herein. The signature pages hereto correctly set
forth the number of the Stockholder's Shares owned, directly or indirectly,
of record or Beneficially Owned by the Stockholder as of the date of this
Voting Agreement. Except as otherwise set forth in this Voting Agreement,
the Stockholder has sole power of disposition and sole power to agree to all
of the matters set forth in this Voting Agreement, in each case with respect
to all of the Stockholder's Shares set forth on the signature pages hereto,
with no limitations, qualifications or restrictions on such rights, subject
to applicable securities Laws and the terms of this Voting Agreement.
3.5 Acknowledgement of the Merger Agreement. The Stockholder hereby
acknowledges and agrees that the Stockholder has received a copy of the
Merger Agreement presented to such Stockholder as a substantially final form
and has reviewed and understood the terms thereof.
3.6 Absence of Agreements with the Company. Other than the letter
agreement, dated as of April 29, 2013, between the Company and the
Stockholder, there are no existing agreements or arrangements between the
Stockholder or any of his, her or its affiliates (or his or her spouse),
on the one hand, and the Company, on the other hand, relating to the Shares
owned beneficially or of record by the Stockholder or any other securities of
or investment in the Company.
ARTICLE IV
COVENANTS OF THE STOCKHOLDER
4.1 Further Assurances. From time to time and without additional
consideration, the Stockholder shall execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments, and shall take such further actions,
as Parent may reasonably request for the purpose of carrying out and
furthering the intent of this Voting Agreement.
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4.2 Waiver of Appraisal Rights. The Stockholder hereby irrevocably
and unconditionally waives the exercise of, and shall cause to be waived and
prevent, any rights of appraisal, rights to dissent or any similar right that
the Stockholder or any other person may have by virtue of the Stockholder's
ownership of the Shares with respect to the Merger and the other transactions
contemplated by the Merger Agreement.
4.3 Public Announcements. Neither the Stockholder, his, her or its
Affiliates, nor any of their respective officers, directors, managers or
partners, as applicable, shall issue any press release or otherwise make any
public statement with respect to the Merger Agreement, this Voting Agreement,
the Merger or any other transactions contemplated by the Merger Agreement
without the prior written consent of Parent, except as may be required by
applicable Law.
4.4 No Solicitation of Acquisition Proposals. Neither the Stockholder
nor any of his, her or its officers, directors, managers or partners, as
applicable, shall, and the Stockholder shall direct and cause his, her or its
employees, agents, consultants and representatives not to, directly or
indirectly, (a) solicit, initiate or encourage any inquiries or the making
or consummation of any proposal or offer that constitutes, or is reasonably
likely to lead to, an Acquisition Proposal (including by way of providing
access to non-public information), (b) engage in, continue or otherwise
participate in any discussions or negotiations with any Person or group of
Persons regarding any proposal or offer that constitutes or would reasonably
be expected to lead to an Acquisition Proposal or (c) otherwise cooperate
with or assist in, or knowingly facilitate, any effort or attempt to make
any proposal or offer that constitutes or would reasonably be expected to
lead to an Acquisition Proposal.
4.5 Additional Purchases. The Stockholder agrees that any Company
Common Stock (or any Company Options related thereto) acquired or purchased
by him, her or it after the execution of this Voting Agreement shall be
subject to the terms of this Voting Agreement to the same extent as if they
constituted the Stockholder's Shares as of the date of this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 Entire Agreement; Amendments. This Voting Agreement, the Merger
Agreement and the other agreements referred to herein and therein constitute
the entire agreement of the parties hereto and supersede all prior agreements
and undertakings, both written and oral, between the parties hereto with
respect to the subject matter hereof. This Voting Agreement may not be
amended or modified except in an instrument in writing signed by, or on
behalf of, the parties hereto.
5.2 Survival of Representations and Warranties. All representations
and warranties made by the Stockholder in this Voting Agreement shall
survive any termination of the Merger Agreement or this Voting Agreement.
5.3 Assignment. Neither party to this Voting Agreement may assign any
of its rights or obligations under this Voting Agreement without the prior
written consent of the other party hereto, except that Parent may assign, in
its sole discretion, all or any of its rights, interests and
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obligations hereunder to any of its Affiliates. Any assignment contrary to
the provisions of this Section 5.3 shall be null and void.
5.4 Severability. If any term or other provision of this Voting
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Voting
Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Voting Agreement so as to effect the original intent
of the parties hereto as closely as possible to the fullest extent
permitted by applicable Law in an acceptable manner.
5.5 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of
this Voting Agreement are not performed in accordance with its specific
terms or it is otherwise breached. The Stockholder agrees that, in the
event of any breach or threatened breach by the Stockholder of any
covenant or obligation contained in this Voting Agreement, Parent shall
be entitled to seek and obtain (a) a decree or order of specific
performance to enforce the observance and performance of such covenant
or obligation and (b) an injunction restraining such breach or threatened
breach. The Stockholder further agrees that neither Parent nor any other
party shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 5.5, and the Stockholder irrevocably waives
any right he, she or it may have to require the obtaining, furnishing or
posting of any such bond or similar instrument.
5.6 Governing Law; Jurisdiction. This Voting Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Nevada without regard to any conflicts of laws. Each of the parties
hereto irrevocably consents to the exclusive jurisdiction and venue of
any California State court, or federal court of the United States of
America located in Los Angeles County, in the State of California, and
any appellate court from thereof, in connection with any matter based upon
or arising out of this Voting Agreement or the transactions contemplated
hereby and agrees that process may be served upon him, her or it in any
manner authorized by the Laws of the State of California for such persons
and waives and covenants not to assert or plead any objection which he,
she or it might otherwise have to such jurisdiction and such process.
Each of the parties hereto irrevocably waives the right to trial by jury
in connection with any matter based upon or arising out of this Voting
Agreement or the transactions contemplated hereby.
5.7 No Waiver. No failure or delay by any party hereto in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. Parent shall not be deemed to have
waived any claim available to it arising out of this Voting Agreement, or
any right, power or privilege hereunder, unless the waiver is expressly
set forth in writing duly executed and delivered on behalf of Parent.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by Law.
5.8 Notices. All notices and communications hereunder shall be
deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended or delivered by
registered or certified mail, return receipt requested, or if sent by
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telecopier or email, provided that the telecopy or email is promptly
confirmed by telephone confirmation thereof, to the Person at the
address set forth below, or such other address as may be designated in
writing hereafter, in the same manner, by such Person:
If to Parent:
Bellisio Foods, Inc.
0000 Xxxxxx Xxxxx
Xxxxx #000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
with a copy to:
Centre Partners Management LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
If to the Stockholder, to the address or facsimile number set
forth on the signature page hereof or, if not set forth thereon, to the
address reflected in the stock books of the Company.
5.9 No Third-Party Beneficiaries. This Voting Agreement is for
the sole benefit of, shall be binding upon, and may be enforced solely by,
Parent and the Stockholder and nothing in this Voting Agreement, express
or implied, is intended to or shall confer upon any Person (other than
Parent and the Stockholder) any legal or equitable right, benefit or
remedy of any nature whatsoever; provided, that the Company shall be a
third party beneficiary of this Voting Agreement and shall be entitled
to enforce any power, right, privilege or remedy of Parent hereunder.
5.10 Headings. The heading references herein are for convenience
of reference only and do not form part of this Voting Agreement, and no
construction or reference shall be derived therefrom.
5.11 Counterparts. This Voting Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when
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executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[remainder of page left intentionally blank]
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IN WITNESS WHEREOF, each of Parent and the Stockholder has
executed or has caused this Voting Agreement to be executed by their
respective duly authorized officers, him or her, as applicable, as of
the date first written above.
BELLISIO FOODS, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Secretary
STOCKHOLDER
HOTCHKIS AND WILEY CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx Xxxxx Xxxxx
Name: Xxxx Xxxxx Xxxxx
Title: Chief Operating Officer
Date: May 14, 2013
Address: 000 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Number of Shares Beneficially Owned:
1,548,800
[Signature Page - Voting Agreement]
