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EXHIBIT (d)(2)
VOTING AGREEMENT
THIS IS A VOTING AGREEMENT, dated as of November 15, 2000, and amended as
of January 9, 2001 (the "Agreement"), by and among Manhattan Acquisition Corp.,
a Delaware corporation (the "Company"), and the entities and individuals set
forth on the signature pages hereto (the "Stockholders").
Background
A. The Stockholders as a group beneficially own 1,029,822 shares of Common
Stock, par value $.001 per share (the "Xxxxx Common Stock") of Il Fornaio
(America) Corporation, a Delaware corporation ("Xxxxx"), and 1,000,722 options
to purchase shares of Xxxxx Common Stock.
B. The Company has entered into the Agreement and Plan of Merger, dated as
of the date hereof (as it may hereafter be amended, the "Merger Agreement"),
with Xxxxx, whereby the Company will be merged (the "Merger") with and into
Xxxxx. Xxxxx will be the surviving corporation in such Merger.
C. Pursuant to the Securities Purchase and Contribution Agreement, dated
as of the date hereof (as it may hereafter be amended, the "Securities Purchase
Agreement"), by and among the Company, Bruckmann, Xxxxxx, Xxxxxxxx & Co. II,
L.P., a Delaware limited partnership ("BRS"), and certain of the Stockholders,
BRS and certain of the Stockholders have agreed to invest an aggregate of $40
million in the Company and/or Xxxxx as the surviving corporation in the form of
the exchange of certain securities of Xxxxx and/or in cash, as the case may be,
in accordance with the terms of the Securities Purchase Agreement.
D. In consideration of the mutual undertakings of the parties hereinafter
set forth and in order to induce the Company to enter into the Merger Agreement
and the Securities Purchase Agreement, the Stockholders wish to agree to certain
restrictions regarding their voting rights, and to grant a proxy to the Company,
with respect to the shares of capital stock of Xxxxx owned by them, subject to
the terms and conditions hereinafter set forth.
Terms
In consideration of the mutual representations, warranties and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
VOTING OF CERTAIN SHARES AND
OTHER COVENANTS OF THE STOCKHOLDERS
1.1. Voting of Shares. From the date hereof until the termination of this
Agreement pursuant to Section 3.3 hereof (the "Term"), at any meeting of the
stockholders of
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Xxxxx, however called, and in any action by consent of such stockholders, each
Stockholder will vote (or give consent in respect of) the shares of Xxxxx Common
Stock beneficially owned by such Stockholder (i) in favor of the Merger and
adoption of the Merger Agreement (as amended from time to time), (ii) against
any Acquisition Proposal (as defined in the Merger Agreement) and against any
proposal for action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Xxxxx under
the Merger Agreement or which is reasonably likely to result in any of the
conditions of Xxxxx'x or the Company's obligations under the Merger Agreement
not being fulfilled, any change in the directors of Xxxxx, any change in the
present capitalization of Xxxxx or any amendment to Xxxxx'x certificate of
incorporation or bylaws, any other material change in Xxxxx'x corporate
structure or business, or any other action which could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing, including the ability for the Company or
its nominees to vote such Xxxxx Common Stock directly. Each Stockholder will use
his, her or its best efforts to cast such Stockholder's vote or give such
Stockholder's consent in accordance with the procedures communicated to the
Stockholder by Xxxxx relating thereto so that the vote or consent shall be duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of the vote or consent taken. As used herein, the term
"beneficially own" shall have the meaning set forth in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
1.2. No Inconsistent Arrangements. Except as contemplated by this
Agreement, each Stockholder will not during the Term (i) transfer (which term
shall include any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the shares of Xxxxx
Common Stock, or options to purchase such shares, that are beneficially owned by
such Stockholder, or any interest therein, or create or, permit to exist any
Lien on such securities, (ii) enter into any contract, option or other agreement
or understanding with respect to any transfer of any or all such securities, or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such securities, (iv) deposit such
securities into a voting trust or enter into a voting agreement or arrangement
with respect to such securities, or (v) take any other action that would in any
way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
1.3. Proxy. Each Stockholder hereby revokes any and all prior proxies or
powers of attorney in respect of any shares of Xxxxx Common Stock beneficially
owned by such Stockholder and constitutes and appoints the Company, or any
nominee thereof, with full power of substitution and re-substitution, at any
time during the Term, as its true and lawful attorney and proxy (its "Proxy"),
for and in its name, place and stead, to demand that the Secretary of Xxxxx call
a special meeting of the stockholders of Xxxxx for the purpose of considering
any matter referred to in Section 1.1 and to vote each share of Xxxxx Common
Stock beneficially
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owned by such Stockholder as its Proxy with regard to any matter referred to in
Section 1.1, at every annual, special, adjourned or postponed meeting of the
stockholders of Xxxxx, including the right to sign its name (as stockholder) to
any consent, certificate or other document relating to Xxxxx, that the Delaware
General Corporation Law may permit or require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
1.4. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger.
1.5. Stop Transfer. Each Stockholder will not request that Xxxxx or the
Company (or their respective registrars or transfer agents) register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of shares of Xxxxx Common Stock beneficially owned by such
Stockholder, unless such transfer is made in compliance with this Agreement.
1.6. No Solicitation. During the Term, each Stockholder will not, nor
shall it permit or authorize any of its officers, directors, employees, agents
or representatives (collectively, the "Representatives") to, (i) solicit or
initiate, or encourage, directly or indirectly, any inquiries regarding the
submission of, any Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information or date with
respect to, or take any other action to knowingly facilitate the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (iii) enter into any agreement with respect to any
Acquisition Proposal or approve or agree or resolve to approve any Acquisition
Proposal. Upon execution of this Agreement, each Stockholder will, and it will
cause its Representatives to, immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing. Each Stockholder will promptly (and in any event,
within 24 hours) advise the Company orally and in writing of any request for
information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or which could lead to any Acquisition Proposal, the
material terms and conditions of such request, Acquisition Proposal or inquiry
and the identity of the person making any such request, Acquisition Proposal or
inquiry and such Stockholder's response or responses thereto. This Section 1.6
relates only to action taken or omitted by any Stockholder in his, her or its
capacity as such, and does not restrict or require action taken or omitted by
such Stockholder or any person affiliated with such Stockholder in his or her
capacity, if any, as an officer or director of Xxxxx so long as any such action
of such Stockholder or any person affiliated with such Stockholder in his or her
capacity as an officer or director of Xxxxx is not in breach of the terms and
provisions of the Merger Agreement.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF EACH STOCKHOLDER
2.1. Representations, Warranties and Covenants of Each Stockholder. Each
of the Stockholders severally represents and warrants to, and covenants and
agrees with, the Company as to itself that:
(a) Such Stockholder has full legal right, power and authority
(including the due authorization by all necessary corporate, limited liability
company or partnership action in the case of Stockholders who are corporations,
limited liability companies or partnerships) to enter into this Agreement and to
perform such Stockholder's obligations hereunder without the need for the
consent of any other person or entity; and this Agreement has been duly
authorized, executed and delivered by such Stockholder.
(b) To the knowledge of the Stockholders, the execution, delivery and
performance of this Agreement by each Stockholder does not contravene or violate
any laws, rules or regulations applicable to it.
(c) Each Stockholder represents that it is and will at Closing be the
sole record (except as otherwise noted on Schedule I) and beneficial owner of,
with Control (as defined below) over, the shares of Xxxxx Common Stock and/or
options to purchase Xxxxx Common Stock set forth beside his, her or its name on
Schedule I, free and clear of any pledge, lien, security interest, mortgage,
charge, claim, equity, option, proxy, voting restriction, voting trust or
agreement, understanding, arrangement, right of first refusal, limitation on
disposition, adverse claim of ownership or use or encumbrance of any kind
("Lien"), other than restrictions imposed by the securities laws or Liens
arising under this Agreement, the Merger Agreement and the Securities Purchase
Agreement (and, in the case of such options, the terms of the option agreement
and plan document relating thereto). Such Stockholder does not beneficially own
any equity securities of Xxxxx other than the securities set forth on Schedule
I. For purposes of this Agreement, "Control" shall mean the right, power and
authority to vote and to sell shares of Xxxxx Common Stock and/or options to
purchase Xxxxx Common Stock without the need for the consent of any other person
or entity.
ARTICLE III
MISCELLANEOUS
3.1. Definitions. Capitalized terms used but not otherwise defined in this
Agreement have the meanings assigned to such terms in the Merger Agreement.
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3.2. Amendment and Modification.
(a) Any of the provisions of this Agreement may be amended or
modified pursuant to a writing executed by the Company and each of the parties
hereto.
(b) Any party hereto may (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties of the other parties hereto
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party.
(c) The failure of any party hereto to exercise any right, power, or
remedy provided under this Agreement or otherwise available in respect hereof at
law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
3.3. Termination. This Agreement will terminate and be of no further force
and effect (i) by the written mutual consent of the parties hereto, (ii)
automatically and without any required action of the parties hereto immediately
following the Effective Time (as defined in the Merger Agreement), (iii) upon
termination of the Merger Agreement in accordance with its terms (provided,
however, that if such termination is effected under Section 7.1(d) as a result
of the failure of the stockholders of Xxxxx to approve the Merger Agreement,
termination of this Agreement will alternatively occur on the date that is 90
days after such termination of the Merger Agreement) or (iv) unless otherwise
determined by BRS, on May 31, 2001. No such termination of this Agreement shall
relieve any party hereto from any liability for any breach of this Agreement
prior to termination.
3.4. Survival of Representations and Warranties. The representations and
warranties set forth in Article II will survive the execution and delivery of
this Agreement, the Closing Date and the consummation of the transactions
contemplated hereby, regardless of any investigation made by a Stockholder or on
its behalf. No other representations, warranties or covenants set forth herein
shall so survive.
3.5. Assignment; Successors and Assigns; Entire Agreement. This Agreement
may not be assigned by any party by operation of law or otherwise without the
prior written consent of the Company. This Agreement constitutes the entire
agreement and supersedes any and all other prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof, and this Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
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3.6. Severability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
3.7. Notices. All notices provided for or permitted hereunder shall be
made in writing by hand-delivery, registered or certified first-class mail,
telex, fax or air courier guaranteeing overnight delivery to the other party at
the following addresses (or at such other address as shall be given in writing
by any party to the others):
If to the Company:
c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, XX
Fax: 000-000-0000
with a copy to:
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
If to any Stockholder to its address as listed on the signature pages
hereof.
All such notices shall be deemed to have been duly given: when delivered
by hand, if personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if faxed; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
3.8. Governing Law. Except to the extent the provisions of the Delaware
General Corporation Law apply mandatorily hereto, the validity, performance,
construction and effect of this Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, regardless of the
laws that might otherwise govern under principles of conflicts of law applicable
thereto.
3.9. Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect its meaning,
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construction or effect. Unless otherwise specified, section references herein
refer to sections of this Agreement and schedules and exhibits refer to
schedules and exhibits attached hereto.
3.10. Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
3.11. Further Assurances. Each party shall cooperate and take such action
as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
3.12. Remedies. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The parties
agree that the provisions of this Agreement shall be specifically enforceable,
it being agreed by the parties that the remedy at law, including monetary
damages, for breach of such provision will be inadequate compensation for any
loss and that any defense in any action for specific performance that a remedy
at law would be adequate is waived. Accordingly, if the Company should institute
an action or proceeding seeking specific enforcement of the provisions hereof,
each Stockholder hereby waives the claim or defense that the Company, as the
case may be, has an adequate remedy at law and hereby agrees not to assert in
any such action or proceeding the claim or defense that such a remedy at law
exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
3.13. Pronouns. Whenever the context may require, any pronouns used herein
shall be deemed also to include the corresponding neuter, masculine or feminine
forms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
MANHATTAN ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
"STOCKHOLDERS"
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxx
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
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/s/ F. Xxxxxx Xxxxxxx
----------------------------------------
F. Xxxxxx Xxxxxxx
Address: Xxxxxxx & Xxxxxxxx, L.L.C.
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxxx
Address: San Tomo Group
00000 X. Xxxxxx Xx.
Xxxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxxx
Address: San Tomo Group
00000 X. Xxxxxx Xx.
Xxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxx
----------------------------------------
Xxxxxx X. Xxxx
Address: San Tomo Group
00000 X. Xxxxxx Xx.
Xxxxxxxx, XX 00000
/s/ W. Xxxxx Xxxxxxx
----------------------------------------
W. Xxxxx Xxxxxxx
Address: InterWest Partners
0000 Xxxx Xxxx Xxxx
Xxxx. Xxxxx, Xxx. 000
Xxxxx Xxxx, XX 00000
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/s/ Carlo Veggetti
----------------------------------------
Carlo Veggetti
Address: c/o Xxx. Xxxxxx Xxxxxxx
C.S. X.X.
Xxxxxxx Xxxxxxx 0000
XX-0000 Xxxxxx
Suisse
Xxxxxx Family Trust
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
Trust created for the benefit of
Xxxxxxxx X. Xxxxxx and his family
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
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The Xxxxxx Living Trust
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
Address: Il Fornaio
000 Xxxxxxxxx Xxxxx, #000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
FWH Associates
By: /s/ F. Xxxxxx Xxxxxxx
------------------------------------
its general partner
Name: F. Xxxxxx Xxxxxxx
Title: General Partner
Address: Xxxxxxx & Xxxxxxxx, L.L.C.
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: F. Xxxxxx Xxxxxxx
Xxxxx X. Xxxxxxx Trust "B"
By: /s/ F. Xxxxxx Xxxxxxx
------------------------------------
Name: F. Xxxxxx Xxxxxxx
Title: Trustee
Address: Xxxxxxx & Xxxxxxxx, L.L.C.
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: F. Xxxxxx Xxxxxxx
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Stanislaus Food Products Company
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: CEO
Address: San Tomo Group
00000 X. Xxxxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx
Capecchio Foundation
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
Address: San Tomo Group
00000 X. Xxxxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx
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Stefi Invest Trade Inc.
By: /s/ Carlo Veggetti
------------------------------------
Name: Carlo Veggetti
Title:
Address: c/o Xxxx-Xxxx Xxxxxxx Avocat
Attorney at law
Xxxxxx Xxxxx 00-00
Xxxx Xxxxxx 000
XX -- 1211 Geneve 25e
Swisse
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Schedule I
Securities Owned
Number of Shares of Xxxxx
Shares of Xxxxx Common Common Stock Purchasable
Name of Stockholder Stock Beneficially Owned* under Options Beneficially Owned**
------------------- ------------------------- ----------------------------------
Xxxxxxxx X. Xxxxxx(1) 679,536 112,496
Xxxxxx Family Trust(1) 7,195 0
Trust created for the benefit of 9,157 0
Xxxxxxxx X. Xxxxxx and his
family(1)
The Xxxxxx Living Trust(1) 663,184 0
Xxxxxxx X. Xxxxxx 0 684,056
Xxxxxxx X. Xxxxxxxx 0 130,610
Xxxxx X. Xxxxxxxx 0 43,560
F. Xxxxxx Xxxxxxx(2) 137,854 10,500
FWH Associates(2) 125,802 0
Xxxxx X. Xxxxxxx Trust "B"(2) 2,052 0
Xxxx X. Xxxxxxxxxx(3) 117,794 12,000
Xxxx X. Xxxxxxxxxx(3) 60,000 0
Xxxxxx X. Xxxx(3) 60,000 0
Stanislaus Food Products 57,794 0
Company(3)
Capecchio Foundation(3) 60,000 0
W. Xxxxx Xxxxxxx 14,879 7,500
Carlo Veggetti(4) 78,359 0
Stefi Invest Trade Inc.(4) 78,359 0
(1) Includes 7,195 shares held of record by the Xxxxxx Family Trust, 9,157
shares held of record by a Trust created for the benefit of Xxxxxxxx X. Xxxxxx
and his family, and 663,184 shares held by The Xxxxxx Living Trust. Xx. Xxxxxx
represents and warrants that he is a trustee of these three trusts.
(2) Includes 125,802 shares held of record by FWH Associates, a California
limited partnership. Xx. Xxxxxxx represents and warrants that he is a general
partner of FWH Associates. Also includes 2,052 shares held of record by Xxxxx X.
Xxxxxxx Trust "B".
----------
* Exclusive of shares purchasable under options set forth in the adjacent
column.
** Exclusive of any vesting limitations.
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(3) Includes 57,794 shares held of record by Stanislaus Food Products Company, a
California corporation. Xx. Xxxxxxxxxx represents and warrants that he is Chief
Executive Officer and a controlling stockholder of Stanislaus Food Products
Company. Includes 60,000 shares held of record by the Capecchio Foundation, a
California not-for-profit corporation, the Board of Directors of which is
comprised of Xx. Xxxxxxxxxx, Xxx. Xxxxxxxxxx and Xx. Xxxx.
(4) 78,359 shares are held of record by Stefi Invest Trade Inc., a company
organized under the laws of the British Virgin Islands. Mr. Veggetti represents
and warrants that he is the sole director and sole stockholder of Stefi Invest
Trade Inc.
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