EXHIBIT 16(d)(2)
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is dated as of April 19, 2001
by and among UNO RESTAURANT CORPORATION, a Delaware corporation (the "COMPANY"),
and the shareholders of the Company listed on SCHEDULE I hereto (each, a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
WHEREAS, UNO RESTAURANT HOLDINGS CORPORATION, a Delaware corporation
("PARENT"), UNO ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Parent ("ACQUISITION SUB"), and the Company propose to enter into
an Agreement and Plan of Merger dated as of the date hereof (the "MERGER
AGREEMENT"), which provides for, among other things, the merger of Acquisition
Sub with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholders are holders of shares
of common stock, $0.01 par value per share, of the Company (the "COMMON STOCK")
set forth opposite the name of each of the Stockholders on SCHEDULE I hereto
(collectively, the "SHARES"); and
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has required that each Stockholder agrees, and
in order to induce the Company to enter into the Merger Agreement, each
Stockholder has agreed, severally and not jointly, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 GENERAL. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement.
ARTICLE 2
VOTING OF SHARES
Section 2.1 AGREEMENT TO VOTE THE SHARES. Each of the Stockholders
hereby agrees to vote, or cause to be voted, at any duly called meeting of the
shareholders of the Company at which matters relating to the Merger or the
Merger Agreement are considered, all of the Shares of Common Stock held by such
Stockholder, which number of shares is set forth opposite such Stockholder's
name on SCHEDULE I hereto, in favor of the Merger, the Merger Agreement (as
amended from time to time), and the other transactions contemplated by the
Merger Agreement,
provided, however, that the Stockholders shall not be required to vote as
provided in this Section 2.1 if the Board of Directors of the Company (the
"BOARD") or the Special Committee of the Board (the "SPECIAL COMMITTEE")
withdraws its recommendation of the Merger or if the Merger Agreement is
terminated in accordance with its terms.
Section 2.2 ADDITIONAL SHARES. If, after the date hereof, a Stockholder
becomes the holder of any additional shares of Common Stock (any such shares
shall be referred to herein as "ADDITIONAL SHARES"), including, without
limitation, upon exercise of any option to purchase shares of Common Stock, the
provisions of this Agreement applicable to the Shares shall be applicable to
such Additional Shares as if such Additional Shares had been outstanding Shares
as of the date hereof. The provisions of the immediately preceding sentence
shall be effective with respect to Additional Shares without action by any
Person immediately upon the acquisition by a Stockholder of such Additional
Shares.
Section 2.3 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain and belong to
the Stockholders, and the Company shall not exercise any power or authority to
direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or the performance of the Stockholders' duties or
responsibilities as shareholders of the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby represents and warrants, severally and
not jointly, to the Company as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its, his or her obligations hereunder and to consummate the transactions
contemplated hereby. Where such Stockholder is a corporation, partnership or
other entity, the execution, delivery and performance of this Agreement by such
Stockholder have been duly and validly authorized, to the extent necessary, by
the board of directors or other governing body of such Stockholder, and no other
proceedings on the part of such Stockholder are necessary to authorize this
Agreement and where such Stockholder is an individual, such individual has the
capacity to enter into this Agreement. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming the due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms.
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Section 3.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder shall not,
(i) where such Stockholder is a corporation, partnership or other entity,
conflict with or violate the organizational documents of such Stockholder, (ii)
conflict with or violate any agreement, arrangement, law, rule, regulation,
order, judgment or decree to which such Stockholder is a party or by which such
Stockholder (or the Shares held by such Stockholder) is bound or affected or
(iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien (as defined below) on any of the Shares held by such
Stockholder pursuant to any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder (or the Shares
held by such Stockholder) is bound or affected.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental entity except for applicable requirements, if
any, of federal or state securities and antitrust laws and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent the performance by such
Stockholder of its, his or her obligations under this Agreement.
Section 3.3 TITLE TO THE SHARES. As of the date hereof, such
Stockholder is the sole owner (or together with his or her spouse, joint owner)
of the Shares listed opposite the name of such Stockholder on SCHEDULE I hereto
and has full and unrestricted power to dispose of and to vote such Shares
(together with his or her spouse, in the case of jointly held Shares). The
Shares listed opposite the name of such Stockholder on SCHEDULE I hereto are all
the securities of the Company held by such Stockholder. Such Stockholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares held by such Stockholder. The Shares listed opposite
the name of such Stockholder on SCHEDULE I hereto are owned free and clear of
all security interests, liens, claims, pledges, options, rights of first
refusal, limitations on such Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever ("LIENS").
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to each of the Stockholders
as follows:
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Section 4.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby, to the
extent necessary, have been duly and validly authorized by the Board, and no
other proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
Section 4.2 NO CONFLICT.
(a) The execution and delivery of this Agreement by the Company does
not, and the performance of this Agreement by the Company shall not, (i)
conflict with or violate the organizational documents of the Company or (ii)
conflict with or violate any agreement, arrangement, law, rule, regulation,
order, judgment or decree to which the Company is a party or by which the
Company is bound or affected.
(b) The execution and delivery of this Agreement by the Company does
not, and the performance of this Agreement by the Company shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity except for applicable requirements, if any, of
federal or state securities, antitrust, franchise and liquor licensing laws and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent the
performance by the Company of their obligations under this Agreement.
ARTICLE 5
APPROVAL OF SPECIAL COMMITTEE
Section 5.1 AMENDMENT. This Agreement may be amended by the parties
hereto at any time; provided, however, that no amendment by the Company shall be
effective unless first approved in writing by the Special Committee. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
Section 5.2 WAIVER. Any party hereto may with respect to any other
party hereto (a) extend the time for the performance of any of the obligations
or other acts, (b) waive any inaccuracies in the representations and warranties
contained herein, or (c) waive compliance with any of the agreements or
conditions contained herein; provided, however, that no waiver or extension by
the Company shall be effective unless first approved in writing by the Special
Committee. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby.
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Section 5.3 TERMINATION. This Agreement shall terminate upon the
earliest to occur of (i) the Effective Time, (ii) a withdrawal of the Board's or
the Special Committee's recommendation of the Merger or the recommendation of
either of them of an Acquisition Proposal, (iii) the termination of the Merger
Agreement or (iv) by written agreement of the parties hereto; provided, however,
that no agreement to terminate this Agreement by the Company shall be effective
unless first approved in writing by the Special Committee. Upon the termination
of this Agreement, no party shall have any further obligations or liabilities
hereunder; provided, however, that nothing in this Agreement shall relieve any
party from liability for the breach of any of its representations, warranties,
covenants and agreements set forth in this Agreement prior to such termination.
ARTICLE 6
MISCELLANEOUS
Section 6.1 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 6.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the Company and the Stockholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, among the Company and the Stockholders with respect to the
subject matter hereof.
Section 6.3 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated.
Section 6.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state without giving
effect to the provisions thereof relating to conflicts of law.
Section 6.5 OBLIGATIONS OF STOCKHOLDERS. The obligations of the
Stockholders hereunder shall be "several" and not "joint" or "joint and
several". Without limiting the
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generality of the foregoing, under no circumstances shall any Stockholder have
any liability or obligation with respect to any misrepresentation or breach of
covenant of any other Stockholder.
Section 6.6 OFFICERS AND DIRECTORS. No person who is or becomes (during
the term of this Agreement) a director or officer of the Company, Parent or
Acquisition Sub makes any agreement or understanding herein in his or her
capacity as such director or officer, and nothing herein shall limit or affect,
or give rise to any liability to any Stockholder by virtue of, any actions taken
by any Stockholder solely in his or her capacity as an officer or director of
the Company, Parent or Acquisition Sub, as the case may be, in exercising each
of their respective rights under the Merger Agreement and the transactions
contemplated thereby, and no such actions shall be deemed a breach or default
under this Agreement.
Section 6.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one and the same instrument.
Section 6.8 FEES AND EXPENSES. The fees and expenses of the parties
incident to preparing, entering into and performing its obligations under this
Agreement and the consummation of the transactions contemplated hereunder shall
be governed by Section 7.3 of the Merger Agreement, and the fees and expenses of
the Stockholders shall be deemed to be the fees and expenses of Parent.
Section 6.9 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Stockholder without
the prior written consent of the Company, and any such assignment or delegation
that is not consented to shall be null and void. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns
(including without limitation any person to whom any Shares are sold,
transferred or assigned).
Section 6.10 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, expressed or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the Company and each of the Stockholders have
caused this Agreement to be duly executed on the date hereof.
UNO RESTAURANT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
STOCKHOLDERS:
UNO ASSOCIATES
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SCHEDULE I
Stockholder: Number of Shares:
----------- ----------------
Uno Associates 1,861,977
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,184,582
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 23,925
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,100
▇▇▇▇ ▇. ▇▇▇ 1,100
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 0
▇▇▇▇ ▇. ▇▇▇▇▇ 233,557
▇▇▇▇ ▇▇▇▇▇▇▇ 264,917
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