STOCKHOLDER VOTING AGREEMENT
Exhibit 10.1
This Stockholder Voting Agreement (this “Agreement”) is made and entered into
as of June 10, 2007, by and among BBAC, LLC, a Delaware limited liability company
(“Parent”), BACK YARD BURGERS, INC., a Delaware corporation (the “Company”), and
the undersigned stockholder (“Stockholder”) of the Company.
RECITALS
A. Concurrently with the execution and delivery hereof, Parent, BBAC Merger Sub,
inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger
Sub”), and the Company are entering into an Agreement and Plan of Merger of even date herewith
(as it may be amended or supplemented from time to time pursuant to the terms thereof, the
“Merger Agreement”), which provides for the merger (the “Merger”) of Merger Sub
with and into the Company in accordance with its terms.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
such number of shares of each class of capital stock of the Company as is indicated on the
signature page of this Agreement.
C. In consideration of the execution and delivery of the Merger Agreement by Parent and Sub,
Stockholder desires to agree to vote the Shares (as defined herein) over which Stockholder has
voting power so as to facilitate the consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto hereby agree as follows:
1. Certain Definitions.
(a) Capitalized terms used but not otherwise defined herein shall have the meanings ascribed
thereto in the Merger Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
“Constructive Sale” means with respect to any security, a short sale with
respect to such security, entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or forward contract to
deliver such security or entering into any other hedging or other derivative transaction
that has the effect of either directly or indirectly materially changing the economic
benefits and risks of ownership.
“Shares” means (i) all shares of capital stock of the Company owned,
beneficially or of record, by Stockholder as of the date hereof, and
(ii) all additional shares of capital stock of the Company acquired by Stockholder, beneficially or of record,
during the period commencing with the execution and delivery of this Agreement and expiring
on the Expiration Date (as such term is defined in Section 11 below).
“Transfer” means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, exchange, pledge, hypothecation, or the grant, creation
or suffrage of a lien, security interest or encumbrance in or upon, or the gift, placement
in trust, or the Constructive Sale or other disposition of such security (including
transfers by testamentary or intestate succession or otherwise by operation of law) or any
right, title or interest therein (including, but not limited to, any right or power to vote
to which the holder thereof may be entitled, whether such right or power is granted by proxy
or otherwise), or the record or beneficial ownership thereof, the offer to make such a sale,
transfer, Constructive Sale or other disposition, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing.
2. Transfer and Voting Restrictions.
(a) At all times during the period commencing with the execution and delivery of this
Agreement and expiring on the Expiration Date, Stockholder shall not, except in connection with the
Merger or as the result of the death of Stockholder, Transfer any of the Shares, or discuss,
negotiate, make an offer or enter into an agreement, commitment or other arrangement with respect
thereto.
(b) Stockholder understands and agrees that if Stockholder attempts to Transfer, vote or
provide any other person with the authority to vote any of the Shares other than in compliance with
this Agreement, the Company shall not, and Stockholder hereby unconditionally and irrevocably
instructs the Company to not, (i) permit any such Transfer on its books and records, (ii) issue a
new certificate representing any of the Shares or (iii) record such vote unless and until
Stockholder shall have complied with the terms of this Agreement.
(c) From and after the date hereof, except as otherwise permitted by this Agreement or by
order of a court of competent jurisdiction, Stockholder will not commit any act that could restrict
or affect his legal power, authority and right to vote all of the Shares then owned of record or
beneficially by him or otherwise prevent or disable Stockholder from performing any of his
obligations under this Agreement. Without limiting the generality of the foregoing, except for
this Agreement and as otherwise permitted by this Agreement, from and after the date hereof,
Stockholder will not enter into any voting agreement with any person or entity with respect to any
of the Shares, grant any person or entity any proxy (revocable or irrevocable) or power of attorney
with respect to any of the Shares, deposit any of the Shares in a voting trust or otherwise enter
into any agreement or arrangement with any person or entity limiting or affecting Stockholder’s
legal power, authority or right to vote the Shares in favor of the approval of the Proposed
Transaction (as such term is defined in Section 3 below).
3. Agreement to Vote Shares.
(a) Prior to the Expiration Date, subject to the terms and conditions hereof, at every meeting
of the stockholders of the Company called, and at every adjournment or postponement thereof, and on
every action or approval by written consent of the stockholders of the Company, Stockholder (in
Stockholder’s capacity as such) shall appear at the meeting or otherwise cause the Shares to be
present thereat for purposes of establishing a quorum and, to the extent not voted by the persons
appointed as proxies pursuant to this Agreement, vote (i) in favor of approval of the Merger, the
Merger Agreement and the other transactions contemplated thereby (collectively, the “Proposed
Transaction”), (ii) against the approval or adoption of any proposal made in opposition to, or
in competition with, the Proposed Transaction, and (iii) against any of the following (to the
extent unrelated to the Proposed Transaction): (A) any merger, consolidation or business
combination involving the Company or any of its Subsidiaries other than the Proposed Transaction;
(B) any sale, lease or transfer of all or substantially all of the assets of the Company or any of
its Subsidiaries; (C) any reorganization, recapitalization, dissolution, liquidation or winding up
of the Company or any of its Subsidiaries; or (D) any other action that is intended, or could
reasonably be expected to result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or of Stockholder under
this Agreement or otherwise impede, interfere with, delay, postpone, discourage or adversely affect
the consummation of the Proposed Transaction (each of (ii) and (iii), a “Competing
Transaction”).
(b) If Stockholder is the beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the record holder and any nominees to
vote all of the Shares in accordance with Section 3; provided, however, that to the extent Stockholder’s
beneficial ownership
does not include the right or power to vote shares beneficially owned,
Stockholder will be obligated only to use reasonable best efforts to cause the record holder and
any nominee to vote such shares in accordance with Section 3.
4. Grant of Irrevocable Proxy.
(a) Stockholder hereby irrevocably (to the fullest extent permitted by law) grants to, and
appoints, Parent and each of its executive officers and any of them, in their capacities as
officers of Parent (the “Grantees”), Stockholder’s proxy and attorney-in-fact (with full power of
substitution and re-substitution), for and in the name, place and stead of Stockholder, to vote the
Shares, to instruct nominees or record holders to vote the Shares, or grant a consent or approval
in respect of such Shares in accordance with Section 3 hereof and, in the discretion of the
Grantees with respect to any proposed adjournments or postponements of any meeting of Stockholders
at which any of the matters described in Section 3 hereof is to be considered.
(b) Stockholder represents that any proxies heretofore given in respect of Stockholder’s
Shares that may still be in effect are not irrevocable, and such proxies are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set forth in this Section 4 is given
in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of Stockholder under this Agreement. Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked except as provided in subparagraph (e) below. Stockholder hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be done by virtue hereof.
Such irrevocable proxy is executed and intended to be irrevocable in accordance with the provisions
of Section 212 of the Delaware General Corporation Law.
(d) The Grantees may not exercise this irrevocable proxy on any other matter except as
provided above. Stockholder may vote the Shares on all matters.
(e) Parent may terminate this proxy with respect to Stockholder at any time at its sole
election by written notice provided to Stockholder. Notwithstanding any other provision herein to
the contrary, the proxy granted herein shall be automatically revoked upon termination of the
Agreement in accordance with its terms.
5. No Solicitation. Stockholder, in his capacity as a Stockholder, shall not directly
or indirectly, (i) solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any Acquisition Proposal or take any action that could reasonably be expected to
lead to an Acquisition Proposal, (ii) furnish any information regarding any of the Company or any
of its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or
an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition
Proposal, (iii) engage in discussions or negotiations with any Person with respect to any
Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into
any letter of intent or similar document or any Contract contemplating or otherwise relating to any
Acquisition Transaction.
6. Action in Stockholder Capacity Only. Stockholder makes no agreement or
understanding herein as a director or officer of the Company. Stockholder signs solely in his
capacity as a record holder and beneficial owner, as applicable, of Shares, and nothing herein
shall limit or affect any actions taken in his capacity as an officer or director of the Company.
7. Representations and Warranties of Stockholder.
(a) Stockholder hereby represents and warrants to Parent as follows: (i) Stockholder is the
beneficial or record owner of the shares of capital stock of the Company indicated on the signature
page of this Agreement free and clear of any and all pledges, liens, security interests, mortgages,
claims, charges, restrictions, options, title defects or encumbrances; (ii) Stockholder does not
beneficially own any securities of the Company other than the shares of capital stock and rights to
purchase shares of capital stock of the Company set forth on the signature page of this Agreement;
(iii) Stockholder has full power and authority to make, enter into and carry out the terms of this
Agreement and to grant the irrevocable proxy as set forth in Section 4; and (iv) this Agreement has
been duly and validly executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder enforceable against him in accordance with its terms, subject to
bankruptcy, insolvency, moratorium and other laws affecting the rights of creditors, generally, and
to general principles of equity. Stockholder agrees to notify Parent promptly of any additional
shares of capital stock of the Company that Stockholder becomes the beneficial owner of after the
date of this Agreement.
(b) As of the date hereof and for so long as this Agreement remains in effect (including as of
the date of the Company Stockholders’ Meeting, which, for purposes of this Agreement, includes any
adjournment or postponement thereof), except for this Agreement or as otherwise permitted by this
Agreement, Stockholder has full legal power, authority and right to vote all of the Shares then
owned of record or beneficially by him, in favor of the approval and authorization of the Proposed
Transaction without the consent or approval of, or any other action on the part of, any other
person or entity (including, without limitation, any governmental entity). Without limiting the
generality of the foregoing, Stockholder has not entered into any voting agreement (other than this
Agreement) with any person or entity with respect to any of the Shares, granted any person or
entity any proxy (revocable or irrevocable) or power of attorney with respect to any of the Shares,
deposited any of the Shares in a voting trust or entered into any arrangement or agreement with any
person or entity limiting or affecting his legal power, authority or right to vote the Shares on
any matter.
(c) The execution and delivery of this Agreement and the performance by Stockholder of his
agreements and obligations hereunder will not result in any breach or violation of or be in
conflict with or constitute a default under any term of any agreement, judgment, injunction, order,
decree, law, regulation or arrangement to which Stockholder is a party or by which Stockholder (or
any of his assets) is bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or adversely affect Stockholder’s ability to
perform his obligations under this Agreement or render inaccurate any of the representations made
by him herein.
(d) Except as disclosed pursuant to the Merger Agreement, no investment banker, broker, finder
or other intermediary is entitled to a fee or commission from Parent, Merger Sub or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on behalf of
Stockholder.
(e) Stockholder understands and acknowledges that Parent, Merger Sub and the Company are
entering into the Merger Agreement in reliance upon Stockholder’s execution and delivery of this
Agreement and the representations and warranties of Stockholder contained herein.
8. Exchange of Shares; Waiver of Rights of Appraisal. If the Merger is consummated,
the Shares shall, pursuant to the terms of the Merger Agreement, be exchanged for the consideration
provided in the Merger Agreement. Stockholder hereby waives, and agrees to prevent the exercise
of, any rights of appraisal with respect to the Merger, or rights to dissent from the Merger, that
such Stockholder may have by virtue of his beneficial ownership of the Shares.
9. Regulatory Approvals. Each of the provisions of this Agreement is subject to
compliance with applicable regulatory conditions and receipt of any required governmental
authorization.
10. Confidentiality. Stockholder recognizes that successful consummation of the
transactions contemplated by the Merger Agreement may be dependent upon confidentiality with
respect to the matters referred to herein. In this connection, pending public disclosure thereof,
and so that the Company may rely on the safe harbor provisions of Rule 100(b)(2)(ii) of Regulation
FD, Stockholder hereby agrees not to disclose or discuss such matters with anyone not a party to
this Agreement (other than its counsel and advisors, if any) without the prior written consent of
Parent and the Company, except for disclosures Stockholder’s counsel advises are necessary in order
to fulfill any legal requirement, in which event Stockholder shall give notice of such disclosure
to Parent and the Company as promptly as practicable so as to enable Parent and the Company to seek
a protective order from a court of competent jurisdiction with respect thereto.
11. Termination. This Agreement shall terminate and be of no further force or effect
whatsoever as of the earliest of (i) such date and time as the Merger Agreement shall have been
validly terminated pursuant to the terms of Article 10 thereof (ii) any material reduction in the
amount, or any change in the form, of the consideration to be delivered to Stockholders pursuant to
the Merger Agreement without the written consent of Stockholder, or (iii) the Effective Time, or
(iv) execution by all parties hereto of a written document terminating this agreement (the
“Expiration Date”).
12. Miscellaneous Provisions.
(a) Amendments, Modifications and Waivers. No amendment, modification or waiver in
respect of this Agreement shall be effective against any party unless it shall be in writing and
signed by Parent, Company and Stockholder.
(b) Entire Agreement. This Agreement and the Merger Agreement constitute the entire
agreement among the parties to this Agreement and supersede all other prior agreements and
understandings, both written and oral, among or between any of the parties with respect to the
subject matter hereof and thereof.
(c) Governing Law. 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 law thereof.
(d) Consent to Jurisdiction; Venue. In any action or proceeding between any of the
parties arising out of or relating to this Agreement or any of the transactions contemplated by
this Agreement, each of the parties: (a) irrevocably and unconditionally consents and submits to
the exclusive jurisdiction and venue of the state courts of the State of Delaware and to the
jurisdiction of the United States District Court for the District of Delaware, and (b) agrees that
all claims in respect of such action or proceeding may be heard and determined exclusively in any
Delaware state or federal court sitting in the State of Delaware.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(f) Attorneys’ Fees. In any action at law or suit in equity to enforce this Agreement
or the rights of any of the parties hereunder, the prevailing party in such action or suit shall be
entitled to receive
a reasonable sum for its attorneys’ fees and all other reasonable costs and expenses incurred in
such action or suit.
(g) Assignment and Successors. 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, including, without limitation, Stockholder’s estate and heirs upon the death of
Stockholder, provided that 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 any of the
parties hereto without prior written consent of the other parties hereto except that Parent,
without obtaining the consent of any other party hereto, shall be entitled to assign this Agreement
or all or any of its rights or obligations hereunder to any one or more Affiliates of Parent or any
Person providing financing to Parent or Sub. No assignment by Parent under this Section 12(g)
shall relieve Parent of its obligations under this Agreement. Any assignment in violation of the
foregoing shall be void and of no effect.
(h) No Third Party Rights. Nothing in this Agreement, express or implied, is intended
to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
(i) Cooperation. Stockholder agrees to cooperate fully with Parent and to execute and
deliver such further documents, certificates, agreements and instruments and to take such other
actions as may be reasonably requested by Parent to evidence or reflect the transactions
contemplated by this Agreement and to carry out the intent and purpose of this Agreement.
Stockholder hereby agrees that the Company may publish and disclose in the Company Proxy Statement
(including all documents filed with the SEC), such Stockholder’s identity and ownership of Shares
and the nature of such Stockholder’s commitments, arrangements and understandings under this
Agreement and may further file this Agreement in any filing made by Parent or the Company with the
SEC relating to the Proposed Transaction.
(j) Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.
(k) Time of Essence. With regard to all dates and time periods set forth or referred
to in this Agreement, time is of the essence.
(l) Specific Performance; Injunctive Relief. The parties hereto acknowledge that
Parent and the Company shall be irreparably harmed and that there shall be no adequate remedy at
law for a violation of any of the covenants or agreements of Stockholder set forth in this
Agreement. Therefore, Stockholder hereby agrees that, in addition to any other remedies that may
be available to Parent or the Company, as applicable upon any such violation, such party shall have
the right to enforce such covenants and agreements by specific performance, injunctive relief or by
any other means available to such party at law or in equity without posting any bond or other
undertaking.
(m) Notices. All notices, consents, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed given if (a) delivered
to the appropriate address by hand or overnight courier (providing proof of delivery), or (b) sent
by facsimile or e-mail with confirmation of transmission by the transmitting equipment confirmed
with a copy delivered as provided in clause (a), in each case to the parties at the following
address, facsimile or e-mail address (or at such other address, facsimile or e-mail address for a
party as shall be specified by like notice): (i) if to Parent or the Company, to the address,
e-mail address or facsimile provided in the Merger Agreement, including to the
persons
designated therein to receive copies; and (ii) if to Stockholder, to Stockholder’s address, e-mail
address or facsimile shown below Stockholder’s signature on the last page hereof.
(n) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same instrument,
and shall become effective when counterparts have been signed by each of the parties and delivered
to the other parties; it being understood that all parties need not sign the same counterpart.
(o) Headings. The headings contained in this Agreement are for the convenience of
reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in
connection with the construction or interpretation of this Agreement.
(p) Legal Representation. This Agreement was negotiated by the parties with the
benefit of legal representation and any rule of construction or interpretation otherwise requiring
this Agreement to be construed or interpreted against any party shall not apply to any construction
or interpretation thereof.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the
date first above written.
PARENT:
|
STOCKHOLDER: | |
BBAC, LLC |
||
By:
|
By: | |
Its:
|
Its: | |
| Address: | ||
COMPANY:
|
Telephone: | |
| (___) ___-___ | ||
BACK YARD BURGERS, INC.
|
Facsimile: | |
| (___) ___-___ | ||
| E-Mail Address: | ||
By: |
||
Its: |
||
| Shares Beneficially Owned by Stockholder: | ||
| ___shares of Company Common Stock | ||
| ___shares of Company Preferred Stock | ||
| ___Options to acquire Company Common Stock |
