VOTING AGREEMENT
Exhibit 2
This
VOTING AGREEMENT (the “Agreement”), dated as of July 3, 2007, is entered into by
and among F & H Acquisition Corp., a Delaware corporation (“Parent”) and
Atticus Global Advisors, Ltd., Atticus Trading, Ltd., Green Way Managed Account
Series, Ltd., in respect of its segregated account, Green Way Portfolio D,
Xxxxxxx X. Xxxxxxxx, NR Securities, Ltd., and Calpurnia Partners, Ltd. (each
a
“Shareholder” and collectively, the “Shareholders”).
WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent, Last
Call Acquisition Corp. (“Merger Sub”) and Champps Entertainment, Inc., a
Delaware corporation (the “Company”), are entering into an Agreement and Plan of
Merger (the “Merger Agreement”), which Merger Agreement has been unanimously
approved by the Company’s Board of Directors and which provides, among other
things, for a merger of Merger Sub with and into the Company, with the Company
remaining as the surviving corporation (the “Merger”);
WHEREAS,
as of the date hereof, each Shareholder is the beneficial owner of the number
of
shares of common stock of the Company, par value $.01 (the “Common Stock”)
opposite such Shareholder’s name set forth on Exhibit I attached hereto (the
shares of Common Stock held by all Shareholders, the “Shares”);
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent
has
required that the Shareholders agree, and each Shareholder is willing to agree,
to the matters set forth herein; and
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings attributed to them in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the agreements set forth below,
the parties hereto agree as follows:
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I.
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Voting
of Shares
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A.
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1.
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Each
Shareholder hereby agrees to vote (or cause to be voted) all of the
Shares
which such Shareholder has the right to so vote at the Stockholder
Meeting
in favor of the approval and adoption of the Merger Agreement, the
transactions contemplated thereby (including, without limitation,
the
Merger) and any actions required in furtherance thereof. In addition,
from
the date hereof and until the termination of this Agreement pursuant
to
Section IX, each Shareholder hereby agrees to vote (or cause to be
voted)
at
any annual, special or other meeting of the shareholders of the Company,
and at any adjournment or adjournments thereof, or pursuant to any
consent
in lieu of a meeting or otherwise, all of the Shares which such
Shareholder has the right to so
vote:
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a)
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against
any action or agreement that would reasonably be expected to result
in a
breach in any material respect of any covenant, representation or
warranty
or any other obligation of the Company under the Merger
Agreement;
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b)
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against
any Competing Proposal and against any other proposal for action
or
agreement that would, in any material respect, impede, interfere
with,
delay or adversely affect the Merger;
and
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c)
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against
any change in the composition of the Company’s Board of Directors, other
than as contemplated by the Merger Agreement.
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2.
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Any
vote required to be cast or consent required to be executed pursuant
to
this Section I.A shall be cast or executed in accordance with the
applicable procedures relating thereto so as to ensure that it is
duly
counted for purposes of determining that a quorum is present (if
applicable) and for purposes of recording the results of that vote
or
consent.
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3.
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If
any action is taken by written consent rather than at a meeting of
the
shareholders of the Company, consent shall be given or withheld by
each
Shareholder with respect to the Shares held by such Shareholder in
the
same manner as if such Shares were voted at a meeting in accordance
with
the provisions of Section I.A.1.
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B.
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Irrevocable
Proxy. In furtherance of each Shareholder’s agreement in Section A above,
each Shareholder hereby irrevocably (until the Termination Date)
grants
to, and appoints, Parent and any designee thereof and each of Parent’s
officers, as such Shareholder’s attorney, agent and proxy (such grants and
appointment, the “Irrevocable Proxy”), with full power of substitution, to
vote and otherwise act with respect to all of such Shareholder’s Shares at
any meeting of the shareholders of the Company (whether annual or
special
and whether or not an adjourned or postponed meeting), and in any
action
by written consent of the shareholders of the Company, on the matters
and
in the manner specified in Section I.A. THIS
PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE (UNTIL THE TERMINATION
DATE)
AND COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN IRREVOCABLE
PROXY AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE
VALID
AND BINDING ON ANY PERSON
TO WHOM SHAREHOLDER MAY TRANSFER ANY OF ITS SHARES IN BREACH OF THIS
AGREEMENT.
Each Shareholder hereby revokes all other proxies and powers of attorney
with respect to all of such Shareholder’s Shares that may have heretofore
been appointed or granted, and no subsequent proxy (whether revocable
or
irrevocable) or power of attorney shall be given (and if given, shall
not
be effective) by such Shareholder with respect thereto on the matters
covered by Section I.A. Each Shareholder hereby affirms that the
irrevocable proxy set forth in this Section I.B 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 such Shareholder
under this
Agreement.
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2
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C.
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Fiduciary
Responsibilities. Notwithstanding any other provision of this Agreement
to
the contrary, nothing contained in this Agreement shall limit the
rights
and obligations of any officer of any Shareholder in his capacity
as a
director of the Company from taking any action in his capacity as
a
director of the Company that the Company’s Board of Directors is permitted
to take pursuant to the terms of the Merger Agreement, and no such
action
taken by an officer of any Shareholder in any such capacity shall
be
deemed to constitute a breach of any provision of this
Agreement.
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D.
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Except
as set forth in paragraph A of this Section I, no Stockholder shall
be
restricted from voting in favor of, against or abstaining with respect
to
any matter presented to the stockholders of the Company. In addition,
nothing in this Agreement shall give Parent the right to vote any
Shares
at any meeting of the stockholders of the Company other than as provided
in this Section I.
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II.
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Representations
and Warranties of each Shareholder.
Each Shareholder, severally but not jointly, represents and warrants
to
Parent as follows:
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A.
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Binding
Agreement. Such Shareholder, if it is not a natural person, is a
limited
partnership, limited liability company or other business entity duly
formed, validly existing and in good standing under the laws of the
State
or territory of its formation. Such Shareholder has the capacity
to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by such
Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly and validly authorized by all
necessary
action of such Shareholder, and no other action or proceedings are
necessary to authorize the execution, delivery and performance of
this
Agreement by such Shareholder and the consummation by such Shareholder
of
the transactions contemplated hereby. Such Shareholder has duly and
validly executed and delivered this Agreement and this Agreement
constitutes a legal, valid and binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms,
except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization
or other similar laws affecting creditors’ rights generally and by general
equitable principles.
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3
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B.
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No
Conflict. Neither the execution and delivery of this Agreement by
such
Shareholder, the consummation by such Shareholder of the transactions
contemplated hereby, the performance by such Shareholder of its
obligations hereunder nor the compliance by such Shareholder with
any
provisions hereof, will (i) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both)
a default
under (A) its partnership or limited liability company agreement
or other
organizational documents (if such Shareholder is not a natural person)
or
(B) any material contract, agreement, instrument, commitment, arrangement
or understanding to which such Shareholder is a party, or result
in the
creation of any Lien with respect to such Shareholder’s Shares, (ii)
violate or conflict with any law, rule, regulation, writ, judgment,
injunction or decree applicable to such Shareholder or such Shareholder’s
Shares or (iii) require any consent, authorization or approval with
respect to such Shareholder of any Person, including any Governmental
Authority, except in the case of clause (i)(B), (ii) or (iii) for
violations, breaches or defaults that would not in the aggregate
materially impair the ability of such Shareholder to perform its
obligations hereunder.
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C.
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Ownership
of Shares. Such Shareholder is the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act, which meaning will apply for all purposes
of
this Agreement) of the Shares listed opposite such Shareholder’s name on
Exhibit I hereto, free and clear of any Liens (including any restriction
on the right to vote, sell or otherwise dispose of such Shares),
except as
may exist by reason of this Agreement or pursuant to applicable law.
Except as provided for or disclosed in this Agreement, the Merger
Agreement and the transactions and other agreements contemplated
hereby
and thereby, there are no outstanding options or other rights to
acquire
from such Shareholder, or obligations of such Shareholder to sell
or to
dispose of, any Shares held by such Shareholder or other equity interests
of any kind in the Company. As of the date of this Agreement, the
number
of shares set forth opposite such Shareholder’s name on Exhibit I hereto
represents all of the shares of capital stock of the Company beneficially
owned by such Shareholder, other than (i) warrant shares and (ii)
shares
underlying any 5.50% Convertible Subordinated Notes due 2007 of the
Company beneficially owned by any of the
Shareholders..
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III.
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Representations
and Warranties of Parent.
Parent represents and warrants to the Shareholders as follows:
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A.
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Binding
Agreement. Parent is a corporation duly incorporated, validly existing
and
in good standing under the laws of the State of Delaware and has
full
corporate power and authority to execute and deliver this Agreement
and to
consummate
the transactions contemplated hereby. The execution and delivery
of this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby have been duly and validly authorized by the
Board of
Directors of Parent, and no other corporate proceedings of Parent
are
necessary to authorize the execution, delivery and performance of
this
Agreement by Parent and the consummation by Parent of the transactions
contemplated hereby. Parent has duly and validly executed this Agreement
and this Agreement constitutes a legal, valid and binding obligation
of
Parent, enforceable against it in accordance with its terms, except
as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors’ rights generally
and by general equitable
principles.
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4
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B.
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No
Conflict. Neither the execution and delivery of this Agreement by
Parent,
the consummation by Parent of the transactions contemplated hereby,
the
performance by Parent of its obligations hereunder, nor the compliance
by
Parent with any of the provisions hereof, will (i) result in a violation
or breach of, or constitute (with or without due notice or lapse
of time
or both) a default under its organizational documents or any contract,
agreement, instrument, commitment, arrangement or understanding to
which
Parent is a party, (ii) violate or conflict with any law, rule,
regulation, writ, judgment, injunction or decree applicable to Parent
or
(iii) require any consent, authorization or approval with respect
to
Parent of any Person, including any Governmental
Authority.
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IV.
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Transfer
and Other Restrictions.
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A.
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Certain
Prohibited Transfers. Each Shareholder, severally and not jointly,
agrees
not to, except as provided for in the Merger
Agreement:
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1.
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sell,
sell short, transfer (including gift), pledge, encumber, assign or
otherwise dispose (whether by sale, liquidation, dissolution, dividend,
distribution or otherwise) of, or enter into any contract, option
or other
arrangement or understanding with respect to the sale, transfer,
pledge,
encumbrance, assignment or other disposition of, any Shares or any
interest contained therein (each a “Transfer”) other than pursuant to this
Agreement, unless the Person to which such Shares are to be Transferred
expressly agrees to be bound by this Agreement in a written instrument
reasonably satisfactory to Parent;
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2.
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grant
any proxies or power of attorney or enter into a voting agreement
or other
arrangement relating to the matters covered by Section I.A, with
respect
to any Shares other than this
Agreement;
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3.
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deposit
any Shares into a voting trust; or
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5
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4.
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knowingly,
directly or indirectly, take or cause the taking of any other action
that
would restrict, limit or interfere with the performance of such
Shareholder’s obligations hereunder or the transactions contemplated
hereby, excluding any bankruptcy
filing.
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B.
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Additional
Shares. Without limiting any provisions of the Merger Agreement,
in the
event (i) of any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock
of
the Company on, of or affecting any Shareholder’s Shares or (ii) any
Shareholder shall become the beneficial owner or record owner of
any
additional shares of capital stock of the Company, or other securities
entitling the holder thereof to vote or give consent with respect
to the
matters set forth in Section I.A hereof, in each case, then the terms
of
this Agreement shall apply to the shares of capital stock or other
securities of the Company held by such Shareholder immediately following
the effectiveness of the events described in clause (i), or such
Shareholder becoming the beneficial or record owner thereof, as described
in clause (ii), as the case may be. Each Shareholder hereby agrees,
while
this Agreement is in effect, to notify Parent of the number of any
new
Shares acquired by such Shareholder, if any, after the date
hereof.
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V.
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No
Solicitation.
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During
the term of this Agreement, each Shareholder agrees that it will not, and will
not permit its directors, officers, investment bankers, attorneys and
accountants to, and will use its reasonable best efforts to cause its employees,
Affiliates, representatives and other agents not to, directly or indirectly,
(i)
solicit, initiate, facilitate or encourage any inquiries or the making or
submission of any proposal that constitutes, or could reasonably be expected
to
lead to, a Competing Proposal, (ii) engage in negotiations or discussions
concerning, or provide any non-public information (or otherwise afford access
to
the properties, books or records of the Company or any Subsidiary thereof)
to
any Person or entity in connection with, any Competing Proposal or (iii) agree
to, enter into any letter of intent or similar agreement in principle with
respect to, approve, recommend or otherwise endorse or support any Competing
Proposal. Upon execution of this Agreement, each Shareholder shall, and shall
cause its representatives and agents to cease immediately and cause to be
terminated any and all existing discussions, conversations, negotiations and
other communications with any Person conducted heretofore with respect to,
or
that could reasonably be expected to lead to, a Competing Proposal.
Notwithstanding the foregoing, each Shareholder (in its capacity as a
Shareholder) or its representatives shall be permitted to take actions set
forth
in clauses (x) and (y) of Section 6.6(b) of the Merger Agreement with respect
to
a third party that has made a Competing Proposal, provided that (i) the Board
of
Directors of the Company has theretofore (or concurrently) entered into
discussions or negotiations with the applicable third party in accordance with,
and subject to the requirements of, Section 6.6(b) and (ii) the Board has
otherwise complied in all material respects with its obligations under Section
6.6 of the Merger Agreement; provided further that, in the event the Board
of
Directors determines to cease discussions or negotiations with such applicable
third party, Shareholder shall cease taking the actions set forth in clauses
(x)
and (y) of Section 6.6(b) with respect to such party. u.
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VI.
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Public
Announcements.
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Other
than in an amendment to the Shareholders’ Schedule 13D, each Shareholder shall
not issue, or cause the publication of, any press release or other public
announcement with respect to the terms of this Agreement without the prior
approval of Parent, except to the extent required by law or by any listing
agreement with, or the policies of, a national securities exchange and, in
any
such event, after reasonable prior notice to the other party.
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VII.
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Waiver
of Appraisal Rights.
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To
the
fullest extent permitted by law, each Shareholder hereby irrevocably waives
any
and all rights of appraisal or dissenters’ rights under the Laws of the State of
Delaware that such Shareholder may have with regard to the Merger and agrees
not
to take any actions necessary in connection with exercising or perfecting such
appraisal or dissenters’ rights.
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VIII.
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Specific
Enforcement.
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The
parties hereto agree that irreparable damage would occur in the event that
any
of the provisions of this Agreement were not performed in accordance with the
terms hereof or were otherwise breached and that each party shall be entitled
to
specific performance of the terms hereof in addition to any other remedy which
may be available at law or in equity. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorneys’
fees and court costs, in addition to any other recoveries allowed by
law.
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IX.
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Termination.
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This
Agreement shall terminate on the earliest to occur of (the “Termination Date”)
(i) the termination of the Merger Agreement in accordance with its terms, (ii)
a
mutual written agreement of Parent and the Shareholder to terminate this
Agreement or (iii) the consummation of the transactions contemplated by the
Merger Agreement. Upon termination of this Agreement, all obligations of the
parties hereunder shall terminate (including the irrevocable proxy granted
by
Section I.B hereof), and the representations and warranties shall not survive
termination; provided that the termination of this Agreement in accordance
with
this Section IX shall not relieve any party from liability for any intentional
or material breach of its obligations hereunder committed prior to such
termination.
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X.
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Notices.
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All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Agreement to any party hereunder shall be
in
writing and deemed given if addressed as provided below (or at such other
address as the addressee shall have specified by notice actually received by
the
addressor) and if either (a) actually delivered in fully legible form,
to
such address, (b) in the case of any nationally recognized express mail service,
one (1) day shall have elapsed after the same shall have been deposited with
such service, or (c) if by fax, on the day on which such fax was sent, provided
that a copy is sent the same day by overnight courier or express mail
service.
7
If
to
Shareholder(s), to:
Atticus
Capital L.L.C.
000
Xxxx
00xx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxx, Esq.
Tel:
000
000 0000
Fax:
000
000 0000
with
a
copy to:
Xxxxxx,
Xxxx & Xxxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx, Esq.
Tel:
000-000-0000
Fax:
000-000-0000
If
to
Parent:
000
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxx, Esq.
Tel:
000.000.0000
Fax:
000.000.0000
with
a
copy to:
Xxxxxx
and Xxxxx, LLP
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx X. Xxxxxx, Esq.
Tel:
000.000.0000
Fax:
000.000.0000
8
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XI.
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Certain
Events.
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Each
Shareholder agrees that this Agreement and the obligations hereunder shall,
to
the extent permitted by law, attach to such Shareholder’s Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such
Shares shall pass, whether by operation of law or otherwise.
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XII.
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Entire
Agreement.
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This
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement and supersedes all other prior agreements
and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
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XIII.
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Consideration.
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This
Agreement is granted in consideration of the execution and delivery of the
Merger Agreement by the Company, Parent and Merger Sub.
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XIV.
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Amendments.
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This
Agreement may not be modified, amended, altered or supplemented except upon
the
execution and delivery of a written agreement executed by the parties
hereto.
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XV.
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Successors
and Assigns.
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This
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of the other parties hereto, except that Parent may assign
its rights under this Agreement to any Affiliate of Parent. This Agreement
will
be binding upon, inure to the benefit of and be enforceable by each party and
such party’s respective heirs, beneficiaries, executors, representatives and
permitted assigns.
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XVI.
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Counterparts.
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This
Agreement may be executed by facsimile and in two or more counterparts, each
of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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XVII.
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Governing
Law.
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This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware (regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof).
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XVIII.
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Severability.
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Any
term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
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XIX.
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Headings.
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The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
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XX.
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Further
Assurances.
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Each
Shareholder shall, upon request of Parent, execute and deliver any additional
documents and take such actions as may reasonably be necessary to carry out
the
provisions hereof.
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XXI.
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Time
of the Essence.
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With
regard to all dates and time periods set forth or referred to in this Agreement,
time is of the essence.
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XXII.
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Remedies
Cumulative.
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All
rights and remedies under this Agreement are cumulative, not exclusive, and
shall be in addition to all rights and remedies available to any party at law
or
in equity.
10
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
undersigned on the day and year first written above.
| /s/ Xxxxxxx X. Xxxxxxxx | |
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Xxxxxxx
X. Xxxxxxxx
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ATTICUS
GLOBAL ADVISORS, LTD
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By:
/s/ Xxxxxxx
Xxxxxxx
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Xxxxxxx Xxxxxxx
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Director
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ATTICUS
TRADING, LTD
|
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By:
/s/ Xxxxxxx
Xxxxxxx
|
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Xxxxxxx Xxxxxxx
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Director
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NR
SECURITIES, LTD
|
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By:
/s/ Xxx
Xxxxxxxx
|
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Xxx Xxxxxxxx
|
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Director
|
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CALPURNIA
PARTNERS, LTD.
|
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By:
/s/ Xxx
Xxxxxxxx
|
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Xxx Xxxxxxxx
|
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Director
|
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GREEN
WAY MANAGED ACCOUNT SERIES, LTD.,
in respect of its segregated account, Green Way Portfolio
D
|
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By:
/s/ Xxx
Xxxxxx
|
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Xxx Xxxxxx
|
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Director and Vice President
|
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F
& H ACQUISITION CORP
|
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By:
/s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Chief
Executive
Officer
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11
Exhibit
I to the Voting Agreement
|
Shareholder
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Shares
of Common Stock
|
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Atticus
Global Advisors, Ltd.
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2,223,902
|
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Atticus
Trading, Ltd.
|
36,700
|
|
Green
Way Managed Account Series, Ltd., in respect
|
520,800
|
|
of
its segregated account, Green Way Portfolio D
|
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Xxxxxxx
X. Xxxxxxxx
|
16,000
|
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NR
Securities, Ltd.
|
1,204,650
|
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Calpurnia
Partners, Ltd.
|
100,000
|
12
