EXHIBIT 99.2
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), dated January 24, 2002, is by
and among Shoney's, Inc., a Tennessee corporation (the "Company"), LSF4
Acquisition, LLC, a Delaware limited liability company (the "Buyer
Subsidiary"), Lone Star U.S. Acquisitions LLC, a Delaware limited liability
company, U.S. Restaurant Properties Operating Limited Partnership, a Delaware
limited partnership (collectively, the "Buyer"), and those shareholders of
the Company listed on Schedule I hereto (each, a "Shareholder," and
collectively, the "Shareholders").
WHEREAS, on even date herewith, the Company, the Buyer and the Buyer
Subsidiary are entering into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which the Buyer Subsidiary will be merged with and
into the Company (the "Merger");
WHEREAS, each Shareholder owns beneficially and of record the number of
shares of common stock (the "Common Stock") of the Company set forth opposite
such Shareholder's name on Schedule I hereto;
WHEREAS, the Company, the Buyer, the Buyer Subsidiary and the
Shareholders desire to set forth their agreement with respect to the voting
of the Shareholders' shares of Common Stock with respect to the Merger and
the Merger Agreement; and
WHEREAS, in executing and delivering the Merger Agreement, the Buyer and
the Buyer Subsidiary are relying on the agreements contained herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
1. VOTING OF COMMON STOCK. Each Shareholder hereby severally (and not
jointly) agrees that, during the time this Agreement is in effect, at any
meeting of the shareholders of the Company, however called, or in any other
circumstance in which the vote, consent or approval of shareholders of the
Company is sought, such Shareholder shall (a) vote such Shareholder's shares
of Common Stock to approve and vote in favor of the Merger Agreement; (b)
vote such Shareholder's shares of Common Stock against any action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement; and (c) vote such Shareholder's shares of Common Stock against any
action or agreement (other than the Merger Agreement or the transactions
contemplated thereby) that would impede, interfere with, delay, postpone or
attempt to discourage the Merger, including, but not limited to: (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries; (ii)
a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries or a reorganization, recapitalization or liquidation of the
Company or any of its subsidiaries; (iii) any change in the management or
board of directors of the Company, except as otherwise agreed to in writing
by the Buyer; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business.
2. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) Each Shareholder hereby irrevocably grants to, and appoints the
Buyer such Shareholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Shareholder, to
vote such Shareholder's shares of Common Stock to approve and vote in favor
of the Merger Agreement and the transactions contemplated by the Merger
Agreement, and against any Acquisition Proposal (as defined in the Merger
Agreement) and as otherwise contemplated by Section 1..
(b) Each Shareholder severally (and not jointly) represents that any
proxies heretofore given in respect of such Shareholder's shares of Common
Stock are revocable, and that any such proxies are hereby revoked.
(c) Each Shareholder severally (and not jointly) understands and
acknowledges that the Buyer and the Buyer Subsidiary are entering into the
Merger Agreement in reliance upon such Shareholder's execution and delivery
of this Agreement. Each Shareholder severally (and not jointly) hereby
affirms that the irrevocable proxy set forth in this Section 2 is given in
connection with the execution of the Merger Agreement and affirms that the
irrevocable proxy is coupled with an interest and may under no circumstances
be revoked until the termination of this Agreement pursuant to Section 8(f).
Each Shareholder severally (and not jointly) hereby ratifies and confirms all
that such irrevocable proxy may lawfully do or cause to be done by virtue
hereof. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN
INTEREST AND, IS EXECUTED AND INTENDED TO BE IRREVOCABLE. Each Shareholder
shall execute and deliver to the Buyer any proxy cards that such Shareholder
receives to vote in favor of the consummation of the Merger. The Buyer shall
deliver to the Secretary of the Company any such proxy cards received by it
at any meeting called to approve the consummation of the Merger.
3. NO INCONSISTENT ARRANGEMENTS. Each Shareholder severally (and not
jointly) hereby covenants and agrees that, except as contemplated by this
Agreement and the Merger Agreement, it shall not (a) except to the Buyer
Subsidiary, transfer (which term shall include, without limitation, any sale,
gift, pledge or other disposition) or consent to any transfer of any or all
of such Shareholder's shares of Common Stock or any interest therein; (b)
except with the Buyer, enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such
Shareholder's shares of Common Stock or any interest therein; (c) grant any
proxy, power-of-attorney or other authorization in or with respect to such
Shareholder's shares of Common Stock; (d) deposit any of such Shareholder's
shares of Common Stock into a voting trust or enter into a voting agreement
or arrangement with respect to such Shareholder's shares of Common Stock; or
(e) take any other action that would in any way restrict, limit or interfere
with the performance of his, her or its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement or which would
make any representation or warranty of such Shareholder hereunder untrue or
incorrect.
4. NO SOLICITATION. Each Shareholder severally (and not jointly), in
his, her or its capacity as a shareholder, hereby agrees that he, she or it
shall not, and shall not permit or authorize any of his, her or its
affiliates, representatives or agents to, directly or indirectly, encourage,
solicit, explore, participate in or initiate discussions or negotiations
with, or provide or disclose any
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information to, any Person (as defined in the Merger Agreement) or group
(other than the Buyer or the Buyer Subsidiary or any of their affiliates or
representatives) concerning any Acquisition Proposal or enter into any
agreement, arrangement or understanding requiring the Company to abandon,
terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement, other than in their capacities as
officers and directors of the Company and pursuant to the terms of the Merger
Agreement. Each Shareholder will immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any Acquisition Proposal.
5. REASONABLE BEST EFFORTS. Subject to the terms and conditions of this
Agreement, each Shareholder severally (and not jointly), in his, her or its
capacity as a shareholder, hereby agrees to use all reasonable best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. Each Shareholder shall promptly consult with the Buyer and
provide any necessary information and material with respect to all filings
made by such Shareholder with any Governmental Authority (as defined in the
Merger Agreement) in connection with this Agreement and the Merger Agreement
and the transactions contemplated hereby and thereby.
6. WAIVER OF APPRAISAL RIGHTS. Each Shareholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.
7. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each Shareholder
hereby represents and warrants, severally (and not jointly), to the Buyer and
the Buyer Subsidiary as follows:
(a) Title. Such Shareholder has good and valid title to such
Shareholder's shares of Common Stock, free and clear of any lien, pledge,
charge, encumbrance or claim of whatever nature.
(b) No Other Rights. There are no outstanding options, warrants or
rights to purchase or acquire the shares of Common Stock owned by such
Shareholder.
(c) Ownership of Shares. On the date hereof, the shares of Common
Stock owned by such Shareholder are owned of record or beneficially by such
Shareholder and, on the date hereof, such shares of Common Stock owned by
such Shareholder constitute all of the shares of Common Stock owned of record
or beneficially by such Shareholder. Such Shareholder has sole voting power
and sole power of disposition with respect to all of the shares of Common
Stock owned by such Shareholder, with no restrictions, subject to applicable
federal securities laws, on such Shareholder's rights of disposition
pertaining thereto.
(d) Power; Binding Agreement. Such Shareholder has the legal
capacity, and all the necessary power and authority to enter into and perform
all of his, her or its obligations under this Agreement. The execution,
delivery and performance of this Agreement by such Shareholder will not
violate any other agreement to which such Shareholder is a party including,
without limitation, any voting agreement, shareholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
such Shareholder, and assuming this Agreement has been duly and validly
authorized, executed and delivered by each party hereto other than such
Shareholder, this Agreement
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constitutes a valid and binding agreement of such Shareholder, enforceable
against such Shareholder in accordance with its terms, except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws, now or hereafter in effect,
affecting creditor rights generally; and (ii) the remedy of specific
performance and injunctive and other equitable relief may be subject to
equitable defenses and to the discretion of the court.
8. MISCELLANEOUS.
(a) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which counterparts, when so executed and delivered shall be deemed to be
an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.
(b) Governing Law. This Agreement shall be governed by the laws of
the State of Tennessee, without regard to principles of conflict of laws.
(c) Amendment. This Agreement may be amended only by means of a
written amendment signed by all of the parties hereto.
(d) Successors; Assigns; Transferees. The provisions of this
Agreement shall be binding upon the successors, assigns and transferees of
each of the parties hereto.
(e) Specific Performance. Each Shareholder acknowledges and agrees
that the failure of such Shareholder to perform the provisions of this
Agreement in accordance with their specific terms or to otherwise breach such
provisions, including his, her or its failure to take all actions as are
necessary on his, her or its part to the consummation of the Merger, will
cause irreparable injury to the Buyer and the Buyer Subsidiary, for which
damages, even if available, will not be an adequate remedy. Accordingly,
each Shareholder hereby consents to the issuance of injunctive relief by any
court of competent jurisdiction to compel performance of such Shareholder's
obligations, including an injunction to prevent breaches, and to the granting
by any such court of the remedy of specific performance of the terms and
conditions hereof.
(f) Termination. This Agreement shall terminate upon the earliest to
occur of (i) the termination of the Merger Agreement in accordance with its
terms, (ii) the Effective Time of the Merger Agreement (as defined therein),
and (iii) any amendment to the Merger Agreement being entered into without
the consent of the Shareholder (such consent being deemed to be given if the
Shareholder is a director of the Company and votes in favor or consents to
such amendment as a director).
(g) Notices. all notices or communications hereunder shall be in
writing (including facsimile or similar writing) addressed as follows:
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To the Shareholders:
-------------------
At the addresses set forth on Schedule I hereto.
To the Buyer or the Buyer Subsidiary:
------------------------------------
c/o Hudson Advisors, L.L.C.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: X.X. Dell, Esq.
c/o U.S. Restaurant Properties, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, CEO
with a copy to:
--------------
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
To the Company:
--------------
0000 Xxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
--------------
Xxxxxxxx & Xxxxx, L.L.P.
Bank of America Plaza, Suite 1100
Xxxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Any such notice or communication shall be deemed given (i) when made, if made
by hand delivery, and upon confirmation of receipt, if made by facsimile;
(ii) one (1) business day after being deposited with a next day courier,
postage prepaid; or (iii) three (3) business days after being sent certified
or registered mail, return receipt requested, postage prepaid, in each case
addressed as above (or to such other address as such party may designate in
writing from time to time).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
LSF4 ACQUISITION, LLC
By: /s/ X.X. Dell
----------------------------------
Name: X.X. Dell
Title: President
LONE STAR U.S. ACQUISITIONS LLC
By: /s/ X.X. Dell
-----------------------------------
Name: X.X. Dell
Title: Senior Vice President
U.S. RESTAURANT PROPERTIES
OPERATING LIMITED PARTNERSHIP
By: U.S. Restaurant Properties, Inc.,
its General Partner
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
SHONEY'S, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
SHAREHOLDERS:
/s/ V. Xxxxxxx Xxxxx
---------------------------------------
V. Xxxxxxx Xxxxx
/s/ X. X. XxXxxxxx, Xx.
---------------------------------------
X. X. XxXxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
---------------------------------------
Xxxxxxx X. Xxxx
SCHEDULE I
----------
NUMBER OF SHARES OF
NAME ADDRESS COMMON STOCK HELD
---- ------- -----------------
V. Xxxxxxx Xxxxx 0000 Xxx Xxxx Xxxx 35,035
Xxxxxxxxx, Xxxxxxxxx 00000
X. X. XxXxxxxx, Xx. 0000 Xxx Xxxx Xxxx 15,299
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxx 0000 Xxx Xxxx Xxxx 00,000
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx X. Xxxxxx 0000 Xxx Xxxx Xxxx 000,000
Xxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxx 0000 Xxx Xxxx Xxxx 97,192
Xxxxxxxxx, Xxxxxxxxx 00000
