VOTING AGREEMENT
Exhibit 99.5
VOTING
AGREEMENT, dated as of June 20, 2010 (this “Agreement”), by and between
Xxxxxx’x Restaurants, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. XxXxxxx,
a citizen of the United States of America (the “Stockholder”).
WITNESSETH:
WHEREAS, Xxxxxxxx Group, Inc., a Delaware corporation (“Parent”), Xxxxxxxx Merger Co.,
a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), Xxxxxx X.
Xxxxxxxx, solely for purposes of Sections 7.10, 7.11 and 9.03(b)
and Article X thereof (“Xxxxxxxx”), and the Company have entered into the Agreement
and Plan of Merger, dated as of November 3, 2009, as amended by the First Amendment to the
Agreement and Plan of Merger on May 23, 2010 (collectively, the “Original Merger
Agreement”), pursuant to which at the effective time under the Merger Agreement (the “Effective
Time”), Merger Sub will merge with and into the Company, with the Company continuing as the
surviving corporation (the “Merger”);
WHEREAS, Parent, Merger Sub, Xxxxxxxx, for certain limited purposes, and the Company,
concurrently with the execution and delivery of this Agreement, are entering into a Second
Amendment to the Original Merger Agreement, dated the date hereof (the “Amendment”, and
together with the Original Merger Agreement, and as the same may be
amended from time to time, the “Merger Agreement”), which provides, among
other things, that the consideration to be received by holders of shares of common stock, par value
$0.01 per share, of the Company (“Company
Shares”) in the Merger will be $24.50 per share
in cash (the “Merger Consideration”);
WHEREAS, Parent’s agreement to the increased Merger Consideration and the Amendment and the
resulting benefit to the Company is dependent on the Company entering into this Agreement;
WHEREAS, as of the date hereof, the Stockholder Beneficially Owns the Stockholder Existing
Shares; and
WHEREAS, the Stockholder wishes to undertake certain obligations to the Company with respect
to the Securities the Stockholder Beneficially Owns;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements contained herein, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement:
(a) “Beneficially Own” or “Beneficial Ownership” with respect to any securities means having
“beneficial ownership” of such securities as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
(b) “Securities” means the Stockholder Existing Shares together with any Company Shares and
other securities of the Company which the Stockholder acquires Beneficial Ownership of after the
date hereof and prior to the termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution, split-up, recapitalization,
combination, exchange of shares or the like, gift, bequest, inheritance or as a successor in
interest in any capacity or otherwise.
(c) “Stockholder Existing Shares” means the Company Shares set forth on Schedule A
hereto. In the event of a stock dividend or distribution, or any change in the Company Shares by
reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the
like other than pursuant to the Merger, the term “Stockholder Existing Shares” will be deemed to
refer to and include the Stockholder Existing Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Stockholder Existing Shares
may be changed or exchanged.
Section 2. Representations And Warranties of the Stockholder. The Stockholder hereby
represents and warrants to the Company as follows:
(a) Ownership of Company Shares. As of the date hereof and at all times prior to the
termination of this Agreement, the Stockholder Beneficially Owns (and will Beneficially Own, unless
any Stockholder Existing Shares are transferred pursuant to Section 5(a) hereof) the
Stockholder Existing Shares on Schedule A. As of the date hereof, the Stockholder does not
Beneficially Own any Securities other than the Company Shares on Schedule A.
(b) Authority. The Stockholder has the requisite power to agree to all of the matters
set forth in this Agreement with respect to the Securities it Beneficially Owns with no
limitations, qualifications or restrictions on such power, subject to applicable securities laws
and the terms of this Agreement.
(c) Power; Binding Agreement. The Stockholder has the legal capacity and authority to
enter into and perform all of its obligations under this Agreement. This Agreement has been duly
and validly executed and delivered by the Stockholder and constitutes a valid and binding agreement
of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(d) No Conflicts. None of the execution and delivery of this Agreement by the
Stockholder, the consummation by the Stockholder of any of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof (i) violates any order, writ,
injunction, decree, judgment, law, statute, rule or regulation applicable to the Stockholder or any
of the Stockholder’s properties or assets or (ii) except for the requirements of the Exchange Act,
requires any filing with, or permit, authorization, consent or approval of, any governmental
entity, except in the case of clauses (i) and (ii) where such violations or failures to make or
obtain any filing with, or permit, authorization, consent or approval of, any governmental entity
would not, individually or in the aggregate, materially impair the ability of the Stockholder to
perform this Agreement.
(e) No Encumbrance. Except as permitted by this Agreement, the Stockholder Existing
Shares are now and at all times during the term hereof will be, and the Securities will be, held by
the Stockholder, or by a nominee or custodian for the benefit of the Stockholder, free and clear of
all liens, proxies, powers of attorney, voting trusts and voting agreements and arrangements
(collectively, “liens”), except for any such liens arising hereunder or under applicable federal
and state securities laws and/or liens that are not material to performance of any of its obligations under this Agreement by
the Stockholder.
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Section 3. Representations And Warranties of the Company. The Company hereby
represents and warrants to the Stockholder as follows:
(a) Power; Binding Agreement. The Company has the corporate power and authority to
enter into and perform all of its obligations under this Agreement. This Agreement has been
duly and validly executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles.
(b) No Conflicts. None of the execution and delivery of this Agreement by the
Company, the consummation by the Company of any of the transactions contemplated hereby or
compliance by the Company with any of the provisions hereof (i) conflicts with, or results in any
breach of, any provision of the certificate of incorporation or by-laws of the Company, (ii)
violates any order, writ, injunction, decree, judgment, law, statute, rule or regulation applicable
to the Company, any of its subsidiaries or any of their respective properties or assets or (iii)
except for the requirements of the Exchange Act, requires any filing with, or permit,
authorization, consent or approval of, any governmental entity, except in the case of clauses (ii)
and (iii) where such violations or failures to make or obtain any filing with, or permit,
authorization, consent or approval of, any governmental entity would not, individually or in the
aggregate, materially impair the ability of the Company to perform this Agreement.
Section 4. Disclosure. The Company may publish and disclose in the Company’s proxy
statement in connection with the Merger, in all documents and schedules filed by the Company with
the Securities and Exchange Commission and in any press release or other disclosure document of the
Company in which the Company reasonably determines in its good faith judgment that such disclosure
is required by law, including the rules and regulations of the Securities and Exchange Commission,
or appropriate, in connection with the Merger and any transactions related thereto, the
Stockholder’s identity and ownership of the Securities and the existence
and terms of this Agreement, and to file this Agreement as an exhibit to any such document or
schedule, provided that, unless it is legally prohibited, the Company shall consult with the
Stockholder prior to filing or making any such disclosure. The Stockholder may publish and disclose
in all documents and schedules filed by it with the Securities and Exchange Commission and in any
of its press releases or other disclosure documents in which it reasonably determines in its good
faith judgment that such disclosure is required by law, including the rules and regulations of the
Securities and Exchange Commission, or appropriate in connection with the Merger and the
transactions related thereto, the existence and terms of this Agreement and to file this Agreement
as an exhibit to any such document or schedule, provided that, unless it is legally prohibited, the
Stockholder shall consult with the Company prior to filing or making any such disclosure.
Section 5. Transfer And Other Restrictions. Prior to the termination of this
Agreement, the Stockholder agrees not to, directly or indirectly:
(a) except pursuant to the terms of the Merger Agreement, offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to, or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other
disposition of, or enter into a loan that will not be
discharged or repaid prior to the record date of any meeting of the holders of the Company Shares
at which the adoption of the Merger Agreement is to be considered of (collectively, “transfer”),
any or all of the Securities it Beneficially Owns or any interest therein, (i) except as provided
in Section 6 hereof or (ii) unless each Person (as
defined in the Merger Agreement as of the date hereof) to
which any of such Securities it Beneficially Owns (or any interest in any of such Securities) is or
may be transferred shall have: (A) executed a counterpart of this Agreement and (B) agreed in
writing to hold such Securities (or interest in such Securities) subject to all of the terms and
provisions of this Agreement;
(b) grant any proxy or power of attorney with respect to any of the Securities it Beneficially
Owns, or deposit any of the Securities it Beneficially Owns into a voting trust or enter into a
voting agreement or arrangement with respect to any such Securities except as provided in this
Agreement; or
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(c) take any other action that would prevent or materially impair the Stockholder from
performing any of its obligations under this Agreement or that would make any representation or
warranty of the Stockholder hereunder untrue or incorrect in any manner that would prevent or materially impair
the performance by the Stockholder of any of its obligations under this Agreement.
Section 6. Voting of the Company Shares. During the period commencing on the date
hereof and continuing until the first to occur of (a) the Effective Time and (b) termination of
this Agreement in accordance with its terms, at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of the holders of the Company Shares, however called, the
Stockholder (in its capacity as such) will, provided that the Stockholder has received written
notice from the Company at least five (5) business days prior to such meeting, appear at such
meeting or otherwise cause the Securities to be counted as present thereat for purposes of
establishing a quorum and vote the Securities:
(A) in favor of the adoption of the Merger Agreement and the approval of other
actions contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(B) against approval of any proposal made in opposition to, or in competition
with, the Merger Agreement or the consummation of the Merger, including any
Acquisition Proposal (as defined in the Merger Agreement); and
(C) against (A) any merger, rights offering, reorganization, recapitalization
or liquidation involving the Company or any of its subsidiaries (other than the
Merger), (B) a sale or transfer of a material amount of assets or capital stock of
the Company or any of its subsidiaries or (C) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay, postpone, or
adversely affect the Merger or any of the other transactions contemplated by the
Merger Agreement.
Section 7. Proxy Card. The Stockholder will execute and deliver to the Company, or
cause to be executed and delivered to the Company, within five business days of receipt, any proxy
card sent to the stockholders of the Company soliciting proxies with respect to the Merger, which
shall be voted in the manner provided in Section 6; it being
understood that nothing herein shall prevent the Stockholder from revoking such
proxy card upon the termination of this Agreement.
Section 8. Termination. This Agreement shall terminate on the earliest to occur of
(a) termination of the Merger Agreement in accordance with its terms, (b) the agreement of the
parties hereto to terminate this Agreement, provided that the parties shall have obtained the prior
written consent of Parent, which may be given or withheld in Parent’s sole discretion, to such
termination, (c) the Effective Time, (d) the execution or effectiveness of any amendment,
modification or supplement to the Merger Agreement (as of the date
hereof) or waiver under the Merger Agreement (as of the date hereof) by the
Company of any of its rights, powers or privileges, in each case, where such amendment,
modification, supplement or waiver would or could reasonably be expected to (i) decrease, or change
the form of, the Merger Consideration, (ii) add any condition, or modify any existing condition in
the Merger Agreement (as of the date hereof), to the obligation of any
party to consummate the Merger, (iii) prevent or
materially delay or impair the occurrence of the Effective Time with it being agreed that any delay
of the occurrence of the Effective Time past December 31, 2010 shall be deemed to be a material
delay or (iv) adversely affect in any material respect the rights or
obligations of any of the parties under this Agreement as of the
date hereof, (e) the determination by the Special Committee of the Board of Directors of the Company (the
“Special Committee”), or if the Special
Committee has been disbanded, dissolved or is
no longer in existence, the Board of Directors of the Company or any
committee thereof, that any Acquisition Proposal (as defined in the Merger Agreement)
constitutes a Superior Proposal (as defined in the Merger Agreement), and (f) December
31, 2010.
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Section 9. Miscellaneous.
(a) Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof, and supersedes all other prior agreements and understandings, both written
and oral, among the parties, with respect to the subject matter hereof.
(b) Successors and Assigns. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the non-assigning party hereto. This Agreement
shall be binding upon, inure to the benefit of and be enforceable by each party, and each party’s
respective heirs, beneficiaries, executors, representatives, successors and assigns and as provided
in Section 9(k).
(c) Amendment; Modification and Waiver. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated except upon the execution and delivery of a
written agreement executed by the parties hereto and consented to in writing by Parent, which
consent may be given or withheld in Parent’s sole discretion. The Stockholder may waive compliance
of the Company with, and the Company (with the prior written consent of Parent, which may be given
or withheld in Parent’s sole discretion) may waive compliance of the Stockholder with, any of the
agreements contained herein that are for its benefit but any such waiver shall only be effective
against the party in whose favor the waiver is made. Any waiver hereunder shall be
effective against any third party beneficiary hereunder. No waiver hereunder will be effective
unless it is in writing.
(d) Limitation on Liability. No party to this Agreement shall have any liability for
damages for any breach or violation of this Agreement unless such breach or violation was willful
or intentional.
(e) No Ownership Interest. Nothing contained in this Agreement shall be deemed to
vest in the Company or Parent any direct or indirect ownership or incident of ownership of or with
respect to any Securities. All rights, ownership and economic benefits of and relating to the
Securities shall remain vested in and belong to the Stockholder, and the Company shall have no
authority to exercise any power or authority to direct the Stockholder in the voting of any of such
Securities, except as otherwise specifically provided herein.
(f) Interpretation. When a reference is made in this Agreement to sections or
subsections, such reference shall be to a section or subsection of this Agreement unless otherwise
indicated. 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. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the
words “without limitation.” The words “herein,” “hereof,” “hereunder” and words of similar import
shall be deemed to refer to this Agreement as a whole, including any schedules and exhibits hereto,
and not to any particular provision of this Agreement. Any pronoun shall include the corresponding
masculine, feminine and neuter forms. References to “party” or “parties” in this Agreement means
the Company and/or the Stockholder, as the case may be. References to “US dollar,” “dollars,”
“US$” or “$” in this Agreement are to the lawful currency of the United States of America.
(g) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly given (i) on the date of delivery if delivered personally, or by e-mail,
telecopy or facsimile, upon confirmation of receipt, (ii) on the first business day following the
date of dispatch if delivered by a recognized next-day courier service, or (iii) on the third
business day following the date of mailing if delivered by registered or certified mail, return
receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below or
pursuant to such other instructions as may be
designated in writing by the party to receive such notice. The Company shall promptly provide
to Parent copies of all notices and communications delivered and/or received pursuant to this
Section 9(g).
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If to the Stockholder, to:
Xxxxxxx X. XxXxxxx
Marcato Capital Management, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Marcato Capital Management, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: |
Xxxxxxx X. XxXxxxx | |
E-mail: |
xxxxxxx@xxxxxxxxxxxxxx.xxx | |
Facsimile: |
(000) 000-0000 |
If to the Company, to:
Xxxxxx’x Restaurants, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: |
Xxxxxx X. Xxxxxxxxxx | |
E-mail: |
xxxxxxxxxxx@xxxx.xxx | |
Facsimile: |
(000) 000-0000 |
with a copy to (which shall not constitute notice):
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: |
Xxxxxx X. Block, Xxxxxxx X. Xxxxx | |
E-mail: |
xxxxxx.xxxxx@xxx.xxx, xxxxxxx.xxxxx@xxx.xxx | |
Facsimile: |
(000) 000-0000 |
(h) Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement will continue in full force and effect and
the application of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of such void or
unenforceable provision.
(i) Other Remedies; Specific Performance. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any other remedy. No
failure or delay on the part of any party hereto in the exercise of any right hereunder will impair
such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,
warranty or agreement herein, nor will any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. 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 their specific terms or were otherwise breached or threatened to be breached. It is
accordingly agreed that each party shall be entitled to seek an injunction or injunctions to
prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and
provisions hereof in the Chosen Court, this being in addition to any other remedy to which they are
entitled at law or in equity, without the requirement to post bond or other security.
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(j) No Survival. None of the representations, warranties, covenants and agreements
made in this Agreement shall survive the termination of the Agreement in accordance with its terms,
except for the agreements in Section 4 and this Section 9.
(k) No Third Party Beneficiaries. This Agreement is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder, except that the provisions
of this Agreement are intended to be for the added benefit of, and shall be enforceable by, Parent,
regardless of whether the Company has taken any enforcement action hereunder or pursued any remedy
at law or in equity.
(l) Governing Law and Venue; Submission to Jurisdiction. This Agreement shall be
governed in all respects, including as to validity, interpretation and effect, by the laws of the
State of Delaware, without giving effect to its principles or rules of conflict of laws. Each
party irrevocably submits to the jurisdiction of the Court of Chancery of the State of Delaware
(the “Chosen Court”), for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby. Each party agrees to commence any
action, suit or proceeding relating hereto in the Chosen Court. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in the Chosen Court, and
hereby further irrevocably and unconditionally waives and agrees not to plead or claim in such
Chosen Court that any such action, suit or proceeding brought in such Chosen Court has been brought
in an inconvenient forum. Each party further irrevocably consents to and grants the Chosen Court
jurisdiction over the person of such parties and, to the extent legally effective, over the subject
matter of any such dispute and agrees that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in Section 9(g) or in such other
manner as may be permitted by applicable law, shall be valid and sufficient service thereof. The
parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
(m) Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(n) Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such expenses.
(o) Counterparts. This Agreement may be executed in one or more counterparts, and by
facsimile or .pdf format, all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each of the parties and
delivered to the other party, it being understood that all parties need not sign the same
counterpart.
* * * * * *
[Signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have signed or have caused this Agreement to be signed
by their respective officers or other authorized persons thereunto duly authorized as of the date
first written above.
| XXXXXXX X. XXXXXXX |
||||
| By: | /s/ Xxxxxxx X. XxXxxxx | |||
| Name: Xxxxxxx X. XxXxxxx | ||||
| XXXXXX’X RESTAURANTS, INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
Schedule A
| Stockholder | Company Shares | |||
Xxxxxxx X. XxXxxxx |
50,000 | |||
