Exhibit 5
[Execution Copy]
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of May 13,
1998, by and among NE Restaurant Company, Inc., a Delaware corporation
("Parent"), NE Acquisition Corp. ("Sub"), a Massachusetts corporation and a
wholly-owned subsidiary of Parent, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Stockholder").
WHEREAS, concurrently herewith, Parent, Sub and Bertucci's, Inc. (the
"Company"), a Massachusetts corporation, are entering into an Agreement and Plan
of Merger of even date herewith (the "Merger Agreement"; capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement), pursuant to which Sub agrees to make a tender offer (the "Offer")
for all outstanding shares of Common Stock, par value $.005 per share (the
"Shares"), of the Company at $10.50 per share, net to the seller in cash (the
"Offer Price"), to be followed by the merger of Sub with the Company (the
"Merger"), with the corporation surviving the Merger becoming a wholly-owned
subsidiary of Parent;
WHEREAS, as of the date hereof, the Stockholder beneficially owns an
aggregate of 2,174,772 Shares (the "Owned Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have required that Stockholder agree, and Stockholder
has agreed (i) to tender pursuant to the Offer all of the Owned Shares (which
term shall include any Shares acquired by him after the date hereof), (ii) to
vote the Owned Shares in favor of the adoption of the Merger Agreement and the
approval of the Merger, (iii) to appoint Parent as the Stockholder's proxy to
vote the Owned Shares in connection with the Merger Agreement and the Merger and
(iv) with respect to other matters put to stockholders of the Company for a
vote, to vote the Owned Shares, in each case, in accordance with the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and Vote.
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1.1 Tender. Stockholder hereby agrees to validly tender (or cause the
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record owner to tender), and not to withdraw, pursuant to and in accordance with
the terms of the Offer, not later than three (3) business days prior to the
initial expiration of the Offer, the Owned Shares beneficially owned by him on
the date hereof and any additional Shares acquired by Stockholder in any
capacity 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, gift,
bequest, inheritance or as a successor in interest in any capacity or otherwise)
beneficially owned by Stockholder, which additional Shares shall constitute
Owned Shares for all purposes of this Agreement. Stockholder acknowledges and
agrees that Parent's and Sub's obligation to accept and pay for the Owned Shares
in the Offer is subject to the terms and conditions of the Offer. The parties
agree that Stockholder will, for all Owned Shares tendered by Stockholder in the
Offer and accepted for payment and paid for by Sub, receive the same per share
consideration paid to other shareholders who have tendered Shares into the
Offer. The transfer by Stockholder of the Owned Shares to Sub in the Offer
shall, upon payment therefor, pass to and unconditionally vest in Sub good and
valid title to the Owned Shares, free and clear of all claims, liens,
restrictions, security interests, pledges, limitations and encumbrances
whatsoever.
1.2 Voting. Stockholder hereby agrees that, during the time this
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Agreement is in effect, at any meeting of the shareholders of the Company,
however called, he shall (a) vote all of the Owned Shares as are beneficially
owned by him on the record date for determining stockholders of record entitled
to vote at such meeting in favor of the adoption of the Merger Agreement and
approval of the Merger; (b) vote such Owned Shares against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (c) vote such Owned Shares against any action or
agreement (other than the Merger Agreement or the transactions contemplated
thereby) that would impede, interfere with, delay, postpone or attempt to
discourage the Merger, including, but not limited to: (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company; or (ii) a sale or transfer of a material
amount of assets of the Company or any of its subsidiaries or a reorganization,
recapitalization or liquidation of the Company or any of its subsidiaries. The
Stockholder shall forward to Parent any proxy cards that Stockholder receives
with respect to the Merger Agreement duly executed by Stockholder.
1.3 Irrevocable Proxy. In the event that Stockholder shall breach his
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covenant set forth in Section 1.2, Stockholder (without any further action on
Stockholder's part) shall be deemed to have hereby irrevocably appointed Parent
as the attorney and proxy of such Stockholder, with full power of substitution,
to vote, and otherwise act (by written consent or otherwise) with respect to all
Owned Shares that Stockholder is entitled to vote at any meeting of stockholders
of the Company (whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or otherwise, to vote
such Shares as set forth in Section 1.2 above. THIS PROXY AND POWER OF ATTORNEY
IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Stockholder hereby revokes,
effective upon the execution and delivery of the Merger Agreement by the parties
thereto, all other proxies and powers of attorney with respect to the Owned
Shares that Stockholder may
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have heretofore appointed or granted, and no subsequent proxy or power of
attorney (except in furtherance of Stockholder's obligations under Section 1.2
hereof) shall be given or written consent executed (and if given or executed,
shall not be effective) by Stockholder with respect thereto so long as
Stockholder's obligations under this Section remain in effect.
2. Expiration. This Agreement and the Stockholder's obligations
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hereunder shall terminate on the earlier of (a) the consummation of the Merger,
(b) the termination of the Offer without any Shares having been purchased
pursuant thereto, (c) the termination of the Merger Agreement in accordance with
its terms, except that the covenants and agreements set forth in Sections 4.1
and 4.3 hereof shall survive for a period of six months after such termination
(the "Extended Period") if (i) at the time of such termination of the Merger
Agreement there is pending or outstanding an unsolicited bona fide Acquisition
Proposal by a Third Party (other than an Acquisition Proposal made by
Stockholder or any entity beneficially owned by him as permitted by Section 6.1
hereof) that has been publicly announced and (ii) such termination was not as a
result of termination of the Merger Agreement by the Company due to the breach
thereof by Parent or Sub or termination of the Merger Agreement by Parent and/or
Sub due to the failure to satisfy the Financing Condition contained in Section
4.2(d) thereof (the "Extension Conditions") and (d) unless the Extension
Conditions are satisfied, July 31, 1998.
3. Representations and Warranties.
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3.1 Representations and Warranties of Parent and Sub. Parent and Sub
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hereby represent and warrant to Stockholder as follows:
(a) Organization; Due Authorization. Parent is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware.
Parent has full power and authority to execute and deliver this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Parent, and no other corporate proceedings on the part of
Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and binding agreement
of Parent, enforceable against Parent in accordance with its terms, except to
the extent (i) such enforcement may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights and (ii) the remedy of
specific enforcement and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
(b) Organization; Due Authorization. Sub is a corporation duly
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organized, validly existing and in good standing under the laws of
Massachusetts. Sub has full corporate
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power and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of Sub,
and no other corporate proceedings on the part of Sub are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Sub and
constitutes a valid and binding agreement of Sub, enforceable against Sub in
accordance with its terms, except to the extent (i) such enforcement may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights and (ii) the remedy of specific enforcement and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
3.2 Representations and Warranties of Stockholder. Stockholder hereby
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represents and warrants to Parent as follows:
(a) Title. Stockholder has good and valid title to the Owned Shares
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free and clear of any lien, charge, encumbrance or claim of whatever nature.
(b) Ownership of Shares. On the date hereof, such Stockholder
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beneficially owns 2,174,772 Shares, all of which are held of record by him.
Stockholder has sole voting power and sole power of disposition with respect to
the Owned Shares, with no restrictions, subject to applicable federal securities
laws, on his rights of disposition pertaining thereto.
(c) Power; Binding Agreement. Stockholder has the legal capacity,
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power and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by such
Stockholder will not violate any other agreement to which Stockholder is a party
including, without limitation, any voting agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered
by Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against Stockholder in accordance with its terms,
except to the extent (i) such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights and (ii) the
remedy of specific enforcement and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(d) No Conflicts. The execution, delivery and performance of this
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Agreement by Stockholder will not constitute a breach, violation or default (or
any event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the properties or
assets of
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Stockholder under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which Stockholder is a party or by which
his respective properties or assets are bound.
4. Certain Covenants of Stockholder. Stockholder hereby covenants and
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agrees as follows:
4.1 Restriction on Transfer, Proxies and Non-Interference. Stockholder
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hereby agrees, while this Agreement is in effect and, if the Extension
Conditions are satisfied, thereafter during the Extension Period, and except as
contemplated hereby, not to (i) sell, transfer, pledge, encumber, assign or
otherwise dispose 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 of his Owned Shares, (ii) grant any
proxies, deposit any shares of capital stock of the Company into a voting trust
or enter into a voting agreement with respect to any such Shares or (iii) take
any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing his obligations under this Agreement;
provided, however, that Stockholder shall be permitted to transfer any of the
Owned Shares to Ten Ideas, Inc., Ten Ideas Acquisition Corp., any member of the
immediate family of Stockholder or any trust, limited partnership or other
entity the beneficial ownership of which is held by Stockholder or such family
members (each, a "Permitted Transferee"), so long as such Permitted Transferee
agrees in writing, in form and substance satisfactory to Parent and Sub, to be
bound by the terms hereof to the same extent as Stockholder is bound and
provided further, however, that no such transfer shall relieve Stockholder of
his obligations hereunder if such Permitted Transferee does not perform such
obligations.
4.2 Additional Shares. Stockholder hereby agrees, while this Agreement is
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in effect, to promptly notify Parent and Sub of the number of additional Shares
acquired by such Stockholder, if any, after the date hereof, which additional
Shares shall be deemed Owned Shares for all purposes of this Agreement.
4.3 No Solicitation of Transactions. While this Agreement is in effect
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and, if the Extension Conditions are satisfied, thereafter during the Extension
Period, Stockholder shall not, directly or indirectly, solicit or initiate any
Acquisition Proposal or offer from any person, or (except in his capacity as a
director or officer of the Company to the extent permitted by Section 6.8 of the
Merger Agreement) engage in discussions or negotiations relating thereto
(including by way of furnishing information). While this Agreement is in effect
and, if the Extension Conditions are satisfied, during the Extension Period,
Stockholder shall promptly advise Purchaser of the receipt of any Acquisition
Proposal or if any inquiries are received by, any
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information or documents are requested from, or any negotiations or discussions
are sought to be instituted or continued with, Stockholder or any of his
affiliates.
5. Further Assurances. From time to time, at the other party's request
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and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective the transactions contemplated by
Section 1 of this Agreement.
6. Other Matters.
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6.1 Proposed Amendment of Merger Agreement. Notwithstanding anything to
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the contrary contained herein or in Section 6.8 of the Merger Agreement, if,
without Stockholder's prior written consent, Parent or Sub proposes in writing
to the Company, the Board of Directors of the Company or any Committee thereof,
or publicly releases a proposal for, (i) any reduction in the Offer Price, (ii)
any extension of the date specified in Section 8.1(b)(ii) of the Merger
Agreement after which either Parent or the Company may terminate the Merger
Agreement if the Offer has not been consummated or (iii) any increase in the
Minimum Condition, this Agreement shall terminate and be of no further force or
effect.
6.2 Withdrawal of Shares on Termination. Any termination of this
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Agreement shall be deemed to constitute an effective withdrawal of any Owned
Shares tendered by Stockholder in the Offer. Parent and Sub agree to cause to
be delivered to Stockholder the certificates for any such Owned Shares as
promptly as practicable following any such deemed withdrawal, and hereby waive
any procedural requirements of the Offer which would require Stockholder to take
any other action to effect such withdrawal.
7. Miscellaneous.
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7.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
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entire agreement among the parties 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 and (ii) shall not
be assigned by operation of law or otherwise, provided that Parent or Sub may
assign its rights and obligations hereunder to any direct or indirect wholly-
owned subsidiary of Parent, but no such assignment shall relieve Parent or Sub
of its obligations hereunder if such assignee does not perform such obligations.
7.2 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail,
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postage prepaid, return receipt requested) or by any courier service, such as
Federal Express, providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
To Stockholder as follows:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇▇'▇, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copy to:
Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
To Parent or Sub:
NE Restaurant Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
copies to:
▇▇▇▇▇▇▇▇ Partners
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
7.3 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
7.4 Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereby agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
7.5 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
7.6 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
7.7 Severability. Whenever possible, each provision or portion of any
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provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
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IN WITNESS WHEREOF, Parent, Sub and Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
NE RESTAURANT COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
NE ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Asst. Treasurer and Chief
Financial Officer
STOCKHOLDER
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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