STOCKHOLDER VOTING AGREEMENT
EXHIBIT 2
Execution Copy
This STOCKHOLDER VOTING AGREEMENT (this “Agreement”), dated as of April 28, 2008, is
entered into by and among G&R Acquisition, Inc., a Delaware corporation (the “Parent”), G&R
Acquisition Subsidiary, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent
(the “Purchaser”), and certain stockholders of Max & Erma’s Restaurants, Inc., a Delaware
corporation (the “Company”), each of which is identified on Schedule A attached
hereto (each a “Stockholder” and collectively, the “Stockholders”).
WHEREAS, simultaneously with the execution of this Agreement, Parent, Merger Sub and the
Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as the same
may be amended or supplemented, the “Merger Agreement”), pursuant to which Merger Sub will
merge with and into the Company with the Company continuing as the surviving entity (the
“Merger”), upon the terms and conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Stockholder is the Beneficial Owner (as defined below) of
the number of Company Common Shares (including Company Common Shares which hereafter may be issued
pursuant to any exercise of any option or warrant) set forth opposite such Stockholder’s name in
Schedule A (such Stockholder’s “Owned Shares”); and
WHEREAS, as an inducement and a condition to its entering into the Merger Agreement and
incurring the obligations set forth therein, the Stockholders have agreed to enter into this
Agreement; and
WHEREAS, the Stockholders will benefit directly and substantially from the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises, representations,
warranties, covenants and agreements contained herein and in the Merger Agreement, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Merger Agreement. In addition, for purposes of this Agreement:
“Affiliate” means, with respect to any specified Person, any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified. For purposes of this Agreement, with respect to any
Stockholder, “Affiliate” shall not include the Company or the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the Company.
“Beneficially Owned” or “Beneficial Ownership” with respect to any securities
means having voting power and/or investment power (as determined pursuant to Rule 13d-3(a) under
the Exchange Act) over such securities, including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
“Beneficial Owner” with respect to any securities means a Person who has Beneficial
Ownership of such securities.
“Person” means an individual, corporation, partnership, limited liability company,
association, trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
“Transfer” means, with respect to a security, the sale, transfer, pledge,
hypothecation, encumbrance, assignment or disposition of such security or the Beneficial Ownership
thereof (other than by operation of law), the offer to make such a sale, transfer or other
disposition, and each option, agreement, arrangement or understanding, whether or not in writing,
to effect any of the foregoing. As a verb, “Transfer” shall have a correlative meaning.
2. Representations and Warranties; Beneficial Ownership. Each Stockholder hereby
individually (and not jointly or severally) represents and warrants to Parent that:
(a) Such Stockholder Beneficially Owns or controls (regardless of in what capacity) the number
of shares of the Company’s common stock, par value $0.10 per share, set forth on Schedule A
hereto (each Stockholder’s “Owned Shares”) free from any lien, encumbrance or restriction
whatsoever and with full power to vote the Owned Shares without the consent or approval of any
other person, and that the Owned Shares constitute all of the capital stock of the Company
Beneficially Owned by such Stockholder.
(b) Such Stockholder has all necessary power and authority and legal capacity to execute and
deliver this Agreement and perform its obligations hereunder. In the case of each Stockholder who
is not a natural person, no other proceedings or actions on the part of such Stockholder are
necessary to authorize the execution, delivery or performance of this Agreement or the consummation
of the transactions contemplated hereby;
(c) This Agreement has been duly and validly executed and delivered by such Stockholder and
when duly and validly executed and delivered by Parent and Merger Sub will constitute a valid and
binding agreement of such Stockholder, enforceable in accordance with its terms; and
(d) Each Stockholder understands and acknowledges that Parent and Merger Sub are entering into
the Merger Agreement in reliance upon such Stockholder’s execution, delivery and performance of
this Agreement.
3. Agreement to Vote. From the date hereof until the termination of this Agreement
pursuant to Section 7, each Stockholder agrees that he, she or it will (a) at such time as the
Company conducts a meeting (including any adjournment thereof) of or otherwise seeks a vote
or consent of its stockholders for the purpose of approving the Merger Agreement and the
transactions contemplated by the Merger Agreement, including the Merger, such Stockholder will
vote, or provide a consent with respect to, the Owned Shares in favor of approving the Merger
Agreement and the transactions contemplated by such Agreement, including the Merger, and (b) such
Stockholder will (at any meeting of stockholders or in connection with any consent solicitation)
vote all Owned Shares against, and will not consent to, any Takeover Proposal with a Person other
than Parent and Merger Sub or any action that would or is designed to delay, prevent or frustrate
the Merger.
4. No Transfer or Solicitation. Each Stockholder agrees that from and after the date
hereof and other than as contemplated by the Merger Agreement or as a result of the death,
liquidation or dissolution of Stockholder (so long as such transferee takes such shares subject to
this Agreement, including its terms and restrictions and agrees to be bound hereby as though an
original signature hereto), he, she or it will not (a) directly or indirectly Transfer or enter
into any contract, option, commitment or other arrangement or understanding with respect to the
Transfer of any of the Owned Shares, other than to any Person (including any Affiliate of the
transferring Stockholder) who agrees to be bound by the terms of this Agreement; (b) exercise any
appraisal rights available to such Stockholder pursuant to Section 262 of the Delaware General
Corporation Law; and (c) take any action or omit to take any action which would prohibit, prevent
or preclude such Stockholder from performing its obligations under this Agreement. Each
Stockholder will use his, her or its reasonable best efforts to ensure that his, her or its
investment bankers, attorneys, accountants, agents or other advisors and representatives do not
take action in contravention of this Section 4.
5. Reasonable Efforts. Each Stockholder agrees to execute and deliver all such further
documents, certificates and instruments and to take all reasonable actions as may be necessary or
appropriate to effect the agreement to vote the Owned Shares as provided in Section 3.
6. Inadequate Remedy at Law. The Stockholders understand, agree and acknowledge that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed by it in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that (a) Parent and Merger Sub shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement by any Stockholder to enforce specifically the terms and
provisions hereof in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which it is entitled at law or in equity, and (b) that each
Stockholder waives, in any action for specific performance, the defense of adequacy of a remedy at
law, and the posting of any bond or security in connection with any proceeding related thereto.
7. Termination. This Agreement, and all rights and obligations hereunder, shall terminate
upon the earlier to occur of (a) the Effective Time of the Merger, (b) the date of termination of
the Merger Agreement in accordance with Section 7 of the Merger Agreement, (c) the date on which
the Merger Agreement is amended, or any provision thereof is waived, in either case in a manner
that would reasonably be expected to have an adverse effect on any Stockholder, and (d) any date on
which Parent or Merger Sub are or become in material violation of the terms of the Merger
Agreement.
8. Stockholder Capacity. No Stockholder executing this Agreement nor any partner, member,
employee or Affiliate of a Stockholder who is or becomes during the term hereof a
director or
officer of the Company makes any agreement or understanding herein in his or her capacity as such a
director or officer of the Company, and this Agreement does not bind any partner, member, employee
or Affiliate of a Stockholder in such person’s capacity as a director or officer. Each Stockholder
executing this Agreement does so solely in such Stockholder’s capacity as the owner of record
and/or Beneficial Owner of the Owned Shares and nothing herein shall limit or affect any actions
taken or omitted to be taken by a Stockholder, or any partner, member, employee or Affiliate of a
Stockholder, in his or her capacity as an officer or director of the Company (including, for the
avoidance of doubt, any action in the discharge of fiduciary duties in compliance with the Merger
Agreement); provided that, nothing in this Section 8 shall be deemed to permit any
Stockholder to take any action on behalf of the Company that is prohibited by the Merger Agreement
(including, but not limited to, taking or causing any other Person to directly or indirectly take
any action that would be prohibited by the Company or its Representatives under Section 5.1.3 of
the Merger Agreement).
9. Miscellaneous.
(a) Severability. If any provision of this Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the extent of such
invalidity or unenforceability only, without it affecting the remaining provisions of this
Agreement.
(b) Amendments and Waivers. This Agreement may not be amended, changed, supplemented,
or otherwise modified or terminated, except upon the execution and delivery of a written agreement
executed by the parties hereto; provided that, Parent may waive compliance by any other
party with any representation, agreement or condition otherwise required to be complied with by any
other party under this Agreement or release any other party from its obligations under this
Agreement, but any such waiver or release shall be effective only if in a writing executed by
Parent.
(c) Assignment. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties and their respective successors, personal or legal
representatives, executors, administrators, heirs, distributees, devisees, legatees and permitted
assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party (whether by operation of law or otherwise), in whole or in part, without
the prior written consent of the other parties; provided, that Parent may assign any or all rights
under this Agreement to any subsidiary of Parent.
(d) Entire Agreement; No Third Party Beneficiaries. This Agreement, along with the
specific references to the Merger Agreement, constitutes the complete, final and exclusive
agreement among the parties and supersedes any and all prior agreements and understandings, written
or oral, among the parties heretofore made with respect to the subject matter hereof. Nothing in
this Agreement, express or implied, is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
(e) Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware without regard to any principles of conflict of
laws.
(f) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to constitute an original. This Agreement shall become effective when one
counterpart signature page has been signed by each party hereto and delivered to the other party
(which delivery may be by facsimile).
[Remainder of page intentionally left blank]
[Stockholder Signature Page to Stockholder Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| Xxxx X. Xxxxxx, an individual |
||||
| /s/ Xxxx X. Xxxxxx | ||||
| Xxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxxxx, an individual |
||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx, Xx., an individual |
||||
| /s/ Xxxxxxx X. Xxxxxxx, Xx. | ||||
| Xxxxxxx X. Xxxxxxx, Xx. | ||||
| Xxxxxx X. Xxxxxxxx, an individual |
||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx | ||||
| Xxx X. Xxxxxx, an individual |
||||
| /s/ Xxx X. Xxxxxx | ||||
| Xxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx, an individual |
||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx, an individual |
||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxx | ||||
[Parent’s and Purchaser’s Signature Page to Stockholder Voting Agreement]
| G&R ACQUISITION, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxxxx, Xx. | |||
| Title: | President | |||
| G&R ACQUISITION SUBSIDIARY, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxxxx, Xx. | |||
| Title: | President | |||
SCHEDULE A
STOCKHOLDERS
| NUMBER | ||||
| NAME | ADDRESS | OF SHARES | ||
Xxxx X. Xxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
305,108 (Does not include 402 shares held by Xx. Xxxxxx’x spouse for which Xx. Xxxxxx disclaims beneficial ownership.) | ||
Xxxxx X. Xxxxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
342,019 (Includes 6,000 shares which Xx. Xxxxxxxx has a right to purchase under stock options exercisable within 60 days of April 28, 2008 and, as of April 28, 2008, approximately 258,599 shares into which Xx. Xxxxxxxx has a right to convert a $1,000,000 installment of principal, plus interest at a rate of 8.5% per year, at a conversion price of $4.00 per share, for a Convertible Promissory Note dated October 29, 2007, as amended by that certain Waiver and Consent, dated April 28, 2008.) | ||
Xxxxxxx X. Xxxxxxx,
Xx.
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
143,334 (Includes 49,320 shares which Xx. Xxxxxxx has a right to purchase under stock options exercisable within 60 days of April 28, 2008, but does not include 11,000 shares held by Xx. Xxxxxxx’x spouse for which Xx. Xxxxxxx disclaims beneficial ownership.) | ||
Xxxxxx X. Xxxxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
33,750 (Includes 30,000 shares which may be purchased under stock options exercisable within 60 days of April 28, 2008). | ||
Xxx X. Xxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
3,333 (Includes 3,333 shares which may be purchased under stock options exercisable within 60 days of April 28, 2008.) | ||
Xxxxxxx X. Xxxxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
9,000 (Includes 6,000 shares which may be purchased under stock options exercisable within 60 days of April 28, 2008.) | ||
Xxxxxx X. Xxxxxxxx
|
c/o Max & Erma’s Restaurants, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 |
3,328 (Includes 991 shares held in Xx. Xxxxxxxx’x Xxxxx account but does not include 8,918 shares held by Xx. Xxxxxxxx’x spouse for which Xx. Xxxxxxxx disclaims beneficial ownership.) |
