EXHIBIT (C)(2)
TENDER AGREEMENT
THIS TENDER AGREEMENT is made and entered into as of this 3rd day of
June 1998, among CARROLS CORPORATION, a Delaware corporation ("Buyer"), and
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, as joint tenants, and the Xxxxxx
Children's Trust (each, a "Shareholder").
WHEREAS, concurrently with the execution of this Agreement, Buyer and
Pollo Tropical, Inc., a Florida corporation (the "Company") are entering into
an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides, among other things, (i) that, upon the terms and
subject to the conditions therein, Buyer will make the Offer (as defined in
Section 2) for all outstanding shares of Common Stock (as defined below) at a
price of $11.00 per share in cash, and (ii) for the merger of the Company with
and into the Buyer (the "Merger") at such $11.00 per share price; and
WHEREAS, as a condition to the willingness of Buyer to enter into the
Merger Agreement, Buyer has requested that the Shareholders agree, and in
order to induce Buyer to enter into the Merger Agreement, the Shareholders
have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by
Buyer of the Merger Agreement and the mutual covenants, conditions and
agreements contained herein and therein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
SECTION 1. Representations and Warranties.
(a) Each Shareholder severally, and not jointly, represents and
warrants to Buyer as follows:
(i) Such Shareholder is the record and beneficial owner of
the number of shares of Common Stock, par value $.01 per share, of
the Company (the "Common Stock"), separately identified as such, set
forth opposite such Shareholder's name in Schedule A hereto (as may
be adjusted from time to time pursuant to Section 5, such
Shareholder's "Shares"). Except for such Shareholder's Shares and any
other shares of Common Stock subject hereto, such Shareholder is not
the record or beneficial owner of any shares of Common Stock.
(ii) This Agreement has been duly authorized, executed and
delivered by such Shareholder and, assuming this Agreement
constitutes a valid and binding obligation of Buyer, constitutes the
legal, valid and binding obligation of such Shareholder, enforceable
against such Shareholder in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
enforcement of creditors' rights generally. Neither the execution and
delivery of
this Agreement nor the consummation by such Shareholder of the
transactions contemplated hereby will result in a violation of, or a
default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to
which such Shareholder is a party or bound or to which such
Shareholder's Shares are subject. To the best of such Shareholder's
actual knowledge, without inquiry, consummation by such Shareholder
of the transactions contemplated hereby will not violate, or require
any consent, approval, or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation applicable
to such Shareholder or such Shareholder's Shares, except for any
necessary filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and except for any filings under applicable
securities laws.
(iii) Such Shareholder's Shares and the certificates
representing such Shares are now and at all times during the term
hereof will be held by such Shareholder, or by a nominee or custodian
for the benefit of such Shareholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever,
except for any such encumbrances or proxies arising hereunder and
except as provided in the last sentence of Section 3(a).
(iv) Such Shareholder understands and acknowledges that
Buyer is entering into the Merger Agreement in reliance upon such
Shareholder's execution and delivery of this Agreement. Such
Shareholder acknowledges that the irrevocable proxy set forth in
Section 4 is granted in consideration for the execution and delivery
of the Merger Agreement by Buyer.
(b) The Buyer represents and warrants to the Shareholders as follows:
(i) The Buyer (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, (b) has full corporate power and authority to own, lease
and operate its properties and assets and to conduct its business as
presently conducted and (c) is duly qualified or licensed to do
business as a foreign corporation and is in good standing in each
jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification
or licensing necessary.
(ii) The Buyer has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
by this Agreement. The execution, delivery and performance by the
Buyer of this Agreement, and the consummation by the Buyer of the
transactions contemplated by this Agreement, have been duly
authorized by all necessary corporate action and no other corporate
proceedings on the part of the Buyer are necessary to authorize this
Agreement or to consummate the transactions contemplated by this
Agreement. This Agreement has been duly executed and delivered by the
Buyer and, assuming this Agreement constitutes a valid and binding
obligation of the Shareholders, constitutes the legal, valid and
binding obligation of the Buyer enforceable against it in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of
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creditors' rights generally. Neither the execution and delivery of
this Agreement nor the consummation by the Buyer of the transactions
contemplated hereby will result in a violation of, or a default
under, or conflict with, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which the
Buyer is a party or bound or to which the Buyer is subject. To the
best of Buyer's actual knowledge, without inquiry, consummation by
Buyer of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation applicable
to Buyer, except for any necessary filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended,
and except for any filings under applicable securities laws.
SECTION 2. Agreement to Tender. Each Shareholder hereby severally
agrees that, unless this Agreement is terminated, except during such time as
the Company's Board of Directors has withdrawn its recommendation of the Offer
or has modified such recommendation in a manner adverse to Buyer until such
recommendation is reinstated, it shall tender its Shares pursuant to and in
accordance with the terms of the Offer (as defined in the Merger Agreement)
and that, unless this Agreement is terminated, except during such time as the
Company's Board of Directors has withdrawn its recommendation of the Offer or
has modified such recommendation in a manner adverse to Buyer until such
recommendation is reinstated, it shall not withdraw any Shares so tendered (it
being understood that the obligation contained in this sentence is
unconditional). The parties agree that each Shareholder will, for all Shares
tendered by such Shareholder in the Offer and accepted for payment by Buyer,
receive a price per Share in cash equal to $11.00, or such higher per share
consideration paid to other shareholders who have tendered into the Offer in
cash.
SECTION 3. Covenants. Each Shareholder severally, and not jointly,
agrees with, and covenants to, Buyer that, unless this Agreement is
terminated, except during such time as the Company's Board of Directors has
withdrawn its recommendation of the Offer or has modified such recommendation
in a manner adverse to Buyer until such recommendation is reinstated:
(a) Such Shareholder shall not, except as contemplated by the terms
of this Agreement or the Offer,
(i) transfer (the term "transfer" shall include, without
limitation, for the purposes of this Agreement, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or
all of such Shareholder's Shares or any interest therein,
(ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such
Shares or any interest therein,
(iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to such Shares,
(iv) deposit such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such Shares, or
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(v) take any other action that would restrict, limit or
interfere in any material respect with the performance of its
obligations hereunder or the transactions provided for herein.
Notwithstanding anything to the contrary provided in this Agreement, a
Shareholder shall have the right to transfer Shares (i) to any Family Member,
(ii) to the trustee or trustees of a trust solely (except for remote
contingent interests) for the benefit of Shareholder and/or one or more Family
Members, (iii) to a foundation created or established by Shareholder, or any
other charitable organization, (iv) to a corporation of which such Shareholder
and/or any Family Members owns all of the outstanding capital stock, (v) to a
partnership of which Shareholder and/or any Family Members owns all of the
partnership interests, (vi) to the executor, administrator or personal
representative of the estate of Shareholder, (vii) to any guardian, trustee or
conservator appointed with respect to the assets of Shareholder or (viii) to
any beneficiary of the Xxxxxx Children's Trust, provided, that in the case of
any such transfer, the transferee (except in the case of a charitable
organization in an amount not to exceed an aggregate of 30,000 Shares) shall
execute an agreement to be bound by the terms of this Agreement. For purposes
of this Agreement, "Family Member" shall have the meaning ascribed to "Related
Parties" under Section 672(c) of the Internal Revenue Code of 1986, as
amended.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought with respect to the Merger, the Merger
Agreement or any transaction contemplated thereby, such Shareholder shall,
including by executing a written consent if requested by the Buyer or the
Company, vote (or cause to be voted) such Shareholder's Shares in favor of the
Merger, the Merger Agreement and all other transactions contemplated thereby.
(c) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought, such Shareholder shall, including by
executing a written consent if requested by the Buyer or the Company, vote (or
cause to be voted) such Shareholder's Shares against (i) any merger agreement
or merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, joint venture,
recapitalization, dissolution, liquidation or winding up of or by the Company
and (ii) any amendment of the Company's Articles of Incorporation or By-laws
or other proposal or transaction (including any consent solicitation to remove
or elect any directors of the Company) involving the Company or any of its
subsidiaries which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify, or result in a material breach
of any covenant, representation or warranty or any other obligation or
agreement of the Company under or with respect to, the Offer, the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement.
(d) Such Shareholder shall permit the Buyer to publish and disclose
in the Offer Documents (as defined in the Merger Agreement) and, if approval
of the Company's shareholders is required under applicable law, the proxy
statement (including all documents and schedules filed with the Securities and
Exchange Commission) its identity and ownership or other rights with respect
to the Common Stock and the nature of its commitments, arrangements and
understandings under this Agreement.
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SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) During the term of this Agreement, except during such time as the
Company's Board of Directors has withdrawn its recommendation of the Offer or
has modified such recommendation in a manner adverse to Buyer until such
recommendation is reinstated, each Shareholder hereby irrevocably grants to,
and appoints, Buyer and Xxxx Xxxxxx, in his capacity as an officer of the
Buyer, and any other individual who shall hereafter be designated by Buyer,
and each of them individually, 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, or grant a consent or
approval in respect of such Shares, in accordance with Section 3(b) or Section
3(c).
(b) Such Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Such Shareholder 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 the Shareholder under this Agreement. Such
Shareholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. Such Shareholder 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 607.0722 of the
Florida Business Corporations Act (the "Corporation Law").
SECTION 5. Certain Events. Each Shareholder agrees that this
Agreement and the obligations hereunder shall 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, including without limitation such Shareholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Common Stock, or the acquisition of
additional shares of Common Stock or other securities or rights of the Company
by any Shareholder, the number of Shares listed on Schedule A beside the name
of such Shareholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Common Stock or
other securities or rights of the Company issued to or acquired by such
Shareholder.
SECTION 6. Voidability. If prior to the execution hereof, the Board
of Directors of the Company shall not have duly and validly authorized and
approved by all necessary corporate action the acquisition of Common Stock by
Buyer and the other transactions contemplated by this Agreement and the Merger
Agreement, so that by the execution and delivery hereof (a) Buyer would
become, or could reasonably be expected to become, an "Interested shareholder"
with whom the Company would be prevented for any period pursuant to Section
607.0901 of the Corporation Law from engaging in any "Affiliated transaction"
(as such terms are defined in Section 607.0901 of the Corporation Law) or (b)
Section 607.0902 of the Corporation Law would be violated, then
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this Agreement shall be void and unenforceable until such time as such
authorization and approval shall have been duly and validly obtained.
SECTION 7. Shareholder Capacity. No person executing this Agreement
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
director or officer. Each Shareholder signs solely in its capacity as the
record holder and beneficial owner of such Shareholder's Shares and nothing
herein shall limit or affect any actions taken by a Shareholder or any
officer, director, partner or affiliate of such Shareholder in its capacity as
an officer or director of the Company to the extent specifically permitted by
the Merger Agreement.
SECTION 8. Further Assurances. Each Shareholder shall, upon request
of Buyer execute and deliver any additional documents and take such further
actions as may reasonably be requested by Buyer as necessary to carry out the
provisions hereof and to vest the power to vote such Shareholder's Shares as
contemplated by Section 4 in Buyer and the other irrevocable proxies described
therein.
SECTION 9. Termination. This Agreement, and all rights and
obligations of the parties hereunder, shall terminate upon the earlier of (a)
the date upon which the Merger Agreement is terminated in accordance with its
terms, (b) the date that Buyer shall have purchased and paid for the Shares of
each Shareholder pursuant to Section 2, (c) August 31, 1998, if the Offer is
not consummated on or before August 31, 1998 and (d) October 31, 1998, if the
Merger is not consummated on or before October 31, 1998. Upon termination of
this Agreement, all obligations of the parties hereto shall terminate.
SECTION 10. Option. Unless this Agreement is terminated, except
during such time as the Company's Board of Directors has withdrawn its
recommendation of the Offer or has modified such recommendation in a manner
adverse to Buyer until such recommendation is reinstated:
(a) Each Shareholder hereby grants to Buyer an irrevocable option
(the "Option") to purchase all such Shareholder's Shares at a purchase price
per share (the "Purchase Price") equal to the Offer Price in cash or such
higher per share consideration paid to other shareholders who have tendered
into the Offer, in cash. The Option will become exercisable, in whole but not
in part, by Buyer if, and only if, such Shareholder shall have breached
Section 2 and Buyer shall otherwise have accepted shares of Common Stock for
purchase pursuant to the Offer. If the Option becomes exercisable, the Option
may be exercised at any time during the period commencing with the acceptance
by Buyer of shares of Common Stock for purchase pursuant to the Offer and
ending simultaneously with the final expiration of the Offer pursuant to the
Merger Agreement (the "Option Period").
(b) If Buyer wishes to exercise the Option with respect to the
Shares, it may do so by giving written notice (the date of such notice being
herein called the "Notice Date") to the Shareholders (in the manner set forth
in Section 11(b)) specifying that all the Shareholders' Shares are to be
purchased and specifying the place, time and date (not earlier than one
business day, nor later than 10 business days, from the Notice Date) for the
closing of the purchase of the
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Shareholders' Shares by Buyer pursuant to such exercise. Such notice may be
given prior to the commencement of the Option Period if the Option shall have
become exercisable as provided in Section 10(a).
(c) Buyer represents that the Shares purchased by Buyer pursuant to
the Option will be acquired for investment only and not with a view to any
public distribution thereof, and Buyer will not offer to sell or otherwise
dispose of any Shares so acquired by it in violation of the registration
requirements of the Securities Act of 1933, as amended.
SECTION 11. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice): (i) if to Buyer, to the
address set forth in Section 8.12 of the Merger Agreement; and (ii) if to a
Shareholder, to the address set forth on Schedule A hereto, or such other
address as may be specified in writing by such Shareholder.
(c) 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.
(d) This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement, and shall become
effective (even without the signature of any other Shareholder) as to any
Shareholder when one or more counterparts have been signed by each of Buyer
and such Shareholder and delivered to Buyer and such Shareholder.
(e) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Florida and, to the extent expressly provided herein,
the Corporation Law, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, except by laws of descent. Any assignment in
violation of the foregoing shall be void.
(h) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any event, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and the
application thereof to any other circumstances, shall remain in full force and
effect, shall not in
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any way be affected, impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
(i) Each Shareholder agrees that irreparable damage would occur and
that Buyer would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that Buyer
shall be entitled to an injunction or injunctions to prevent breaches by any
Shareholder of this Agreement and to enforce specifically the terms and
provisions of this Agreement. Each of the parties hereto (i) consents to
submit such party to the personal jurisdiction of any Federal court located in
the State of Florida in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, and (iii) agrees that such party will
not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court located in the
State of Florida (or a state court in Florida if the Federal courts do not
have subject matter jurisdiction). The prevailing party in any judicial action
shall be entitled to receive from the other party reimbursement for the
prevailing party's reasonable attorneys' fees and disbursements, and court
costs.
(j) 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 such party.
(k) All representations and warranties contained herein shall expire
upon the termination of this Agreement in accordance with Section 9 hereof.
(l) Notwithstanding anything in this Agreement to the contrary, (i)
until the exercise of any stock options, the term "Shares" as used herein
shall be deemed not to include any such stock options and (ii) nothing
contained herein shall be deemed to require any Shareholder to exercise such
stock options in order to tender the Shares issued upon such exercise.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Buyer and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written
above.
CARROLS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and General Counsel
SHAREHOLDERS
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
XXXXXX CHILDREN'S TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
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Schedule A
----------
Name and Address of Shareholder Number of Shares of Common Stock
Beneficially Owned
Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, 1,147,156
as Joint Tenants ------------------
00000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Xxxxxx Children's Trust 300,918
Xxxxxxx X. Xxxxxxx, Trustee ------------------
0000 Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
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