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Exhibit 99.2
VOTING AGREEMENT
THIS IS A VOTING AGREEMENT, dated as of November 15, 2000 (the
"Agreement"), by and among Manhattan Acquisition Corp., a Delaware corporation
(the "Company"), and the entities and individuals set forth on the signature
pages hereto (the "Stockholders").
Background
A. The Stockholders as a group beneficially own 954,521 shares of Common
Stock, par value $.001 per share (the "Baker Common Stock") of Il Fornaio
(America) Corporation, a Delaware corporation ("Baker"), and 1,000,722 options
to purchase shares of Baker Common Stock.
B. The Company has entered into the Agreement and Plan of Merger, dated
as of the date hereof (as it may hereafter be amended, the "Merger Agreement"),
with Baker, whereby the Company will be merged (the "Merger") with and into
Baker. Baker will be the surviving corporation in such Merger.
C. Pursuant to the Securities Purchase and Contribution Agreement, dated
as of the date hereof (as it may hereafter be amended, the "Securities Purchase
Agreement"), by and among the Company, Bruckmann, Rosser, Sherrill & Co. II,
L.P., a Delaware limited partnership ("BRS"), and the Stockholders, the
Stockholders have agreed to purchase securities of the Company and to deliver as
purchase price shares of Baker Common Stock or cancellation of options to
purchase shares of Baker Common Stock.
D. In consideration of the mutual undertakings of the parties
hereinafter set forth and in order to induce the Company to enter into the
Merger Agreement and the Securities Purchase Agreement, the Stockholders wish to
agree to certain restrictions regarding their voting rights, and to grant a
proxy to the Company, with respect to the shares of capital stock of Baker owned
by them, subject to the terms and conditions hereinafter set forth.
Terms
In consideration of the mutual representations, warranties and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
VOTING OF CERTAIN SHARES AND
OTHER COVENANTS OF THE STOCKHOLDERS
1.1. Voting of Shares. From the date hereof until the termination of
this Agreement pursuant to Section 3.3 hereof (the "Term"), at any meeting of
the stockholders of Baker, however called, and in any action by consent of such
stockholders, each Stockholder will
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vote (or give consent in respect of) the shares of Baker Common Stock
beneficially owned by such Stockholder (i) in favor of the Merger and adoption
of the Merger Agreement (as amended from time to time), (ii) against any
Acquisition Proposal (as defined in the Merger Agreement) and against any
proposal for action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Baker under
the Merger Agreement or which is reasonably likely to result in any of the
conditions of Baker's or the Company's obligations under the Merger Agreement
not being fulfilled, any change in the directors of Baker, any change in the
present capitalization of Baker or any amendment to Baker's certificate of
incorporation or bylaws, any other material change in Baker's corporate
structure or business, or any other action which could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing, including the ability for the Company or
its nominees to vote such Baker Common Stock directly. Each Stockholder will use
his, her or its best efforts to cast such Stockholder's vote or give such
Stockholder's consent in accordance with the procedures communicated to the
Stockholder by Baker relating thereto so that the vote or consent shall be duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of the vote or consent taken. As used herein, the term
"beneficially own" shall have the meaning set forth in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
1.2. No Inconsistent Arrangements. Except as contemplated by this
Agreement, each Stockholder will not during the Term (i) transfer (which term
shall include any sale, assignment, gift, pledge, hypothecation or other
disposition), or consent to any transfer of, any or all of the shares of Baker
Common Stock, or options to purchase such shares, that are beneficially owned by
such Stockholder, or any interest therein, or create or, permit to exist any
Lien on such securities, (ii) enter into any contract, option or other agreement
or understanding with respect to any transfer of any or all such securities, or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to such securities, (iv) deposit such
securities into a voting trust or enter into a voting agreement or arrangement
with respect to such securities, or (v) take any other action that would in any
way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement.
1.3. Proxy. Each Stockholder hereby revokes any and all prior proxies or
powers of attorney in respect of any shares of Baker Common Stock beneficially
owned by such Stockholder and constitutes and appoints the Company, or any
nominee thereof, with full power of substitution and re-substitution, at any
time during the Term, as its true and lawful attorney and proxy (its "Proxy"),
for and in its name, place and stead, to demand that the Secretary of Baker call
a special meeting of the stockholders of Baker for the purpose of considering
any matter referred to in Section 1.1 and to vote each share of Baker Common
Stock beneficially
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owned by such Stockholder as its Proxy with regard to any matter referred to in
Section 1.1, at every annual, special, adjourned or postponed meeting of the
stockholders of Baker, including the right to sign its name (as stockholder) to
any consent, certificate or other document relating to Baker, that the Delaware
General Corporation Law may permit or require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
1.4. Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger.
1.5. Stop Transfer. Each Stockholder will not request that Baker or the
Company (or their respective registrars or transfer agents) register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of shares of Baker Common Stock beneficially owned by such
Stockholder, unless such transfer is made in compliance with this Agreement.
1.6. No Solicitation. During the Term, each Stockholder will not, nor
shall it permit or authorize any of its officers, directors, employees, agents
or representatives (collectively, the "Representatives") to, (i) solicit or
initiate, or encourage, directly or indirectly, any inquiries regarding the
submission of, any Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information or date with
respect to, or take any other action to knowingly facilitate the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal or (iii) enter into any agreement with respect to any
Acquisition Proposal or approve or agree or resolve to approve any Acquisition
Proposal. Upon execution of this Agreement, each Stockholder will, and it will
cause its Representatives to, immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing. Each Stockholder will promptly (and in any event,
within 24 hours) advise the Company orally and in writing of any request for
information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or which could lead to any Acquisition Proposal, the
material terms and conditions of such request, Acquisition Proposal or inquiry
and the identity of the person making any such request, Acquisition Proposal or
inquiry and such Stockholder's response or responses thereto. This Section 1.6
relates only to action taken or omitted by any Stockholder in his, her or its
capacity as such, and does not restrict or require action taken or omitted by
such Stockholder or any person affiliated with such Stockholder in his or her
capacity, if any, as an officer or director of Baker so long as any such action
of such Stockholder or any person affiliated with such Stockholder in his or her
capacity as an officer or director of Baker is not in breach of the terms and
provisions of the Merger Agreement.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF EACH STOCKHOLDER
2.1. Representations, Warranties and Covenants of Each Stockholder. Each
of the Stockholders severally represents and warrants to, and covenants and
agrees with, the Company as to itself that:
(a) Such Stockholder has full legal right, power and authority
(including the due authorization by all necessary corporate, limited liability
company or partnership action in the case of Stockholders who are corporations,
limited liability companies or partnerships) to enter into this Agreement and to
perform such Stockholder's obligations hereunder without the need for the
consent of any other person or entity; and this Agreement has been duly
authorized, executed and delivered by such Stockholder.
(b) To the knowledge of the Stockholders, the execution,
delivery and performance of this Agreement by each Stockholder does not
contravene or violate any laws, rules or regulations applicable to it.
(c) Each Stockholder represents that it is and will at Closing
be the sole record and beneficial owner of the shares of Baker Common Stock
and/or options to purchase Baker Common Stock set forth beside his, her or its
name on Schedule I, free and clear of any pledge, lien, security interest,
mortgage, charge, claim, equity, option, proxy, voting restriction, voting trust
or agreement, understanding, arrangement, right of first refusal, limitation on
disposition, adverse claim of ownership or use or encumbrance of any kind
("Lien"), other than restrictions imposed by the securities laws or Liens
arising under this Agreement, the Merger Agreement and the Securities Purchase
Agreement (and, in the case of such options, the terms of the option agreement
and plan document relating thereto). Such Stockholder does not beneficially own
any equity securities of Baker other than the securities set forth on Schedule
I.
ARTICLE III
MISCELLANEOUS
3.1. Definitions. Capitalized terms used but not otherwise defined in
this Agreement have the meanings assigned to such terms in the Merger Agreement.
3.2. Amendment and Modification.
(a) Any of the provisions of this Agreement may be amended or
modified pursuant to a writing executed by the Company and each of the parties
hereto.
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(b) Any party hereto may (i) extend the time for the performance
of any of the obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties of the other parties
hereto contained herein or in any document delivered pursuant hereto and (iii)
waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party.
(c) The failure of any party hereto to exercise any right,
power, or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, any custom or practice of the parties at
variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
3.3. Termination. This Agreement will terminate and be of no further
force and effect (i) by the written mutual consent of the parties hereto, (ii)
automatically and without any required action of the parties hereto immediately
following the Effective Time (as defined in the Merger Agreement), (iii) upon
termination of the Merger Agreement in accordance with its terms (provided,
however, that if such termination is effected under Section 7.1(d) as a result
of the failure of the stockholders of Baker to approve the Merger Agreement,
termination of this Agreement will alternatively occur on the date that is 90
days after such termination of the Merger Agreement) or (iv) unless otherwise
determined by BRS, on May 31, 2001. No such termination of this Agreement shall
relieve any party hereto from any liability for any breach of this Agreement
prior to termination.
3.4. Survival of Representations and Warranties. The representations and
warranties set forth in Article II will survive the execution and delivery of
this Agreement, the Closing Date and the consummation of the transactions
contemplated hereby, regardless of any investigation made by a Stockholder or
on its behalf. No other representations, warranties or covenants set forth
herein shall so survive.
3.5. Assignment; Successors and Assigns; Entire Agreement. This
Agreement may not be assigned by any party by operation of law or otherwise
without the prior written consent of the Company. This Agreement constitutes the
entire agreement and supersedes any and all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof, and this Agreement is not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
3.6. Severability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that
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provision held invalid shall substantially impair the benefits of the remaining
portions of this Agreement.
3.7. Notices. All notices provided for or permitted hereunder shall be
made in writing by hand-delivery, registered or certified first-class mail,
telex, fax or air courier guaranteeing overnight delivery to the other party at
the following addresses (or at such other address as shall be given in writing
by any party to the others):
If to the Company:
c/o Bruckmann, Rosser, Sherrill & Co., L.P.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Harold O. Rosser II
Fax: 212-521-3799
with a copy to:
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Carmen J. Romano, Esq.
Fax: 215-994-2222
If to any Stockholder to its address as listed on the signature pages
hereof.
All such notices shall be deemed to have been duly given: when delivered
by hand, if personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if faxed; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
3.8. Governing Law. Except to the extent the provisions of the Delaware
General Corporation Law apply mandatorily hereto, the validity, performance,
construction and effect of this Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York, regardless of the
laws that might otherwise govern under principles of conflicts of law applicable
thereto.
3.9. Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect. Unless otherwise specified, section
references herein refer to sections of this Agreement and schedules and exhibits
refer to schedules and exhibits attached hereto.
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3.10. Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
3.11. Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
3.12. Remedies. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The parties
agree that the provisions of this Agreement shall be specifically enforceable,
it being agreed by the parties that the remedy at law, including monetary
damages, for breach of such provision will be inadequate compensation for any
loss and that any defense in any action for specific performance that a remedy
at law would be adequate is waived. Accordingly, if the Company should institute
an action or proceeding seeking specific enforcement of the provisions hereof,
each Stockholder hereby waives the claim or defense that the Company, as the
case may be, has an adequate remedy at law and hereby agrees not to assert in
any such action or proceeding the claim or defense that such a remedy at law
exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
3.13. Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MANHATTAN ACQUISITION CORP.
By: /s/ HAROLD O. ROSSER
-------------------------------------
Name: Harold O. Rosser, II
Title: President
"STOCKHOLDERS"
/s/ LAURENCE B. MINDEL
-----------------------------------------
Laurence B. Mindel
Address: 86 San Carlos Ave.
Sausalito, CA 94965
/s/ MICHAEL J. HISLOP
-----------------------------------------
Michael J. Hislop
Address: 20 Lupine Court
San Rafael, CA 94901
/s/ MICHAEL BEATRICE
-----------------------------------------
Michael Beatrice
Address: 36 Mahogany Drive
San Rafael, CA 94903
/s/ PETER HAUSBACK
-----------------------------------------
Peter Hausback
Address: 2860 Jackson St.
Alameda, CA 94501
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/s/ WARREN HELLMAN
-----------------------------------------
Warren Hellman
Address: 3415 Pacific Ave.
San Francisco, CA 94118
/s/ DINO CORTOPASSI
-----------------------------------------
Dino Cortopassi
Address: 11280 N. Alpine Rd.
Stockton, CA 95212
/s/ SCOTT HEDRICK
-----------------------------------------
Scott Hedrick
Address: P.O. Box 1111
Ross, CA 94957
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Schedule I
Securities Owned
<TABLE>
<CAPTION>
Number of Shares of Baker
Shares of Baker Common Common Stock Purchasable under
Name of Stockholder Stock Beneficially Owned* Options Beneficially Owned**
------------------- ------------------------ -------------------------------
<S> <C> <C>
Larry Mindel 683,994 112,496
Mike Hislop 0 684,056
Mike Beatrice 0 130,610
Peter Hausback 0 43,560
Warren Hellman 137,854 10,500
Dino Cortopassi 117,794 12,000
Scott Hedrick 14,879 7,500
</TABLE>
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* Exclusive of shares purchasable under options set forth in the adjacent
column.
** Exclusive of any vesting limitations.
