Exhibit 10.1
STOCKHOLDER VOTING AGREEMENT
This Stockholder Voting
Agreement (this “ Agreement ”) is
made and entered into as of June 10, 2007, by and among
BBAC, LLC , a Delaware limited liability company (“
Parent ”), BACK YARD BURGERS, INC. , a Delaware
corporation (the “ Company ”), and the
undersigned stockholder (“ Stockholder ”) of the
Company.
RECITALS
A. Concurrently with
the execution and delivery hereof, Parent, BBAC Merger Sub
, inc. , a Delaware
corporation and a direct wholly owned subsidiary of Parent (“
Merger Sub ”), and the Company are entering into an
Agreement and Plan of Merger of even date herewith (as it may be
amended or supplemented from time to time pursuant to the terms
thereof, the “ Merger Agreement ”), which
provides for the merger (the “ Merger ”) of
Merger Sub with and into the Company in accordance with its
terms.
B. Stockholder is the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of such number of shares of each class of capital stock of the
Company as is indicated on the signature page of this
Agreement.
C. In consideration of
the execution and delivery of the Merger Agreement by Parent and
Sub, Stockholder desires to agree to vote the Shares (as defined
herein) over which Stockholder has voting power so as to facilitate
the consummation of the Merger.
NOW, THEREFORE, intending to be
legally bound, the parties hereto hereby agree as follows:
1. Certain Definitions
.
(a) Capitalized
terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Merger Agreement. For all purposes of and
under this Agreement, the following terms shall have the following
respective meanings:
“ Constructive Sale
” means with respect to any security, a short sale with
respect to such security, entering into or acquiring an offsetting
derivative contract with respect to such security, entering into or
acquiring a futures or forward contract to deliver such security or
entering into any other hedging or other derivative transaction
that has the effect of either directly or indirectly materially
changing the economic benefits and risks of ownership.
“ Shares ” means
(i) all shares of capital stock of the Company owned,
beneficially or of record, by Stockholder as of the date hereof,
and (ii) all additional shares of capital stock of the Company
acquired by Stockholder, beneficially or of record, during the
period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date (as such term is defined in
Section 11 below).
“ Transfer ”
means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, exchange, pledge,
hypothecation, or the grant, creation or suffrage of a lien,
security interest or encumbrance in or upon, or the gift, placement
in trust, or the Constructive Sale or other disposition of such
security (including transfers by testamentary or intestate
succession or otherwise by operation of law) or any right, title or
interest therein (including, but not limited to, any right or power
to vote to which the holder thereof may be entitled, whether such
right or power is granted by proxy or otherwise), or the record or
beneficial ownership thereof, the offer to make such a sale,
transfer, Constructive Sale or other disposition, and each
agreement, arrangement or understanding, whether or not in writing,
to effect any of the foregoing.
2. Transfer and Voting
Restrictions .
(a) At
all times during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date,
Stockholder shall not, except in connection with the Merger or as
the result of the death of Stockholder, Transfer any of the Shares,
or discuss, negotiate, make an offer or enter into an agreement,
commitment or other arrangement with respect thereto.
(b) Stockholder
understands and agrees that if Stockholder attempts to Transfer,
vote or provide any other person with the authority to vote any of
the Shares other than in compliance with this Agreement, the
Company shall not, and Stockholder hereby unconditionally and
irrevocably instructs the Company to not, (i) permit any such
Transfer on its books and records, (ii) issue a new
certificate representing any of the Shares or (iii) record
such vote unless and until Stockholder shall have complied with the
terms of this Agreement.
(c) From
and after the date hereof, except as otherwise permitted by this
Agreement or by order of a court of competent jurisdiction,
Stockholder will not commit any act that could restrict or affect
his legal power, authority and right to vote all of the Shares then
owned of record or beneficially by him or otherwise prevent or
disable Stockholder from performing any of his obligations under
this Agreement. Without limiting the generality of the foregoing,
except for this Agreement and as otherwise permitted by this
Agreement, from and after the date hereof, Stockholder will not
enter into any voting agreement with any person or entity with
respect to any of the Shares, grant any person or entity any proxy
(revocable or irrevocable) or power of attorney with respect to any
of the Shares, deposit any of the Shares in a voting trust or
otherwise enter into any agreement or arrangement with any person
or entity limiting or affecting Stockholder’s legal power,
authority or right to vote the Shares in favor of the approval of
the Proposed Transaction (as such term is defined in Section 3
below).
3. Agreement to Vote
Shares .
(a) Prior
to the Expiration Date, subject to the terms and conditions hereof,
at every meeting of the stockholders of the Company called, and at
every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of the Company,
Stockholder (in Stockholder’s capacity as such) shall appear
at the meeting or otherwise cause the Shares to be present thereat
for purposes of establishing a quorum and, to the extent not voted
by the persons appointed as proxies pursuant to this Agreement,
vote (i) in favor of approval of the Merger, the Merger
Agreement and the other transactions contemplated thereby
(collectively, the “ Proposed Transaction ”),
(ii) against the approval or adoption of any proposal made in
opposition to, or in competition with, the Proposed Transaction,
and (iii) against any of the following (to the extent
unrelated to the Proposed Transaction): (A) any merger,
consolidation or business combination involving the Company or any
of its Subsidiaries other than the Proposed Transaction;
(B) any sale, lease or transfer of all or substantially all of
the assets of the Company or any of its Subsidiaries; (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any of its Subsidiaries; or
(D) any other action that is intended, or could reasonably be
expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under
the Merger Agreement or of Stockholder under this Agreement or
otherwise impede, interfere with, delay, postpone, discourage or
adversely affect the consummation of the Proposed Transaction (each
of (ii) and (iii), a “ Competing Transaction
”).
(b) If
Stockholder is the beneficial owner, but not the record holder, of
the Shares, Stockholder agrees to take all actions necessary to
cause the record holder and any nominees to vote all of the Shares
in accordance with Section 3; provided, however, that to the
extent Stockholder’s beneficial ownership
does not
include the right or power to vote shares beneficially owned,
Stockholder will be obligated only to use reasonable best efforts
to cause the record holder and any nominee to vote such shares in
accordance with Section 3.
4. Grant of Irrevocable
Proxy .
(a) Stockholder
hereby irrevocably (to the fullest extent permitted by law) grants
to, and appoints, Parent and each of its executive officers and any
of them, in their capacities as officers of Parent (the
“Grantees”), Stockholder’s proxy and
attorney-in-fact (with full power of substitution and
re-substitution), for and in the name, place and stead of
Stockholder, to vote the Shares, to instruct nominees or record
holders to vote the Shares, or grant a consent or approval in
respect of such Shares in accordance with Section 3 hereof
and, in the discretion of the Grantees with respect to any proposed
adjournments or postponements of any meeting of Stockholders at
which any of the matters described in Section 3 hereof is to
be considered.
(b) Stockholder
represents that any proxies heretofore given in respect of
Stockholder’s Shares that may still be in effect are not
irrevocable, and such proxies are hereby revoked.
(c) Stockholder
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 Stockholder under this
Agreement. Stockholder hereby further affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be
revoked except as provided in subparagraph (e) below.
Stockholder 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 212 of the Delaware
General Corporation Law.
(d) The
Grantees may not exercise this irrevocable proxy on any other
matter except as provided above. Stockholder may vote the Shares on
all matters.
(e) Parent
may terminate this proxy with respect to Stockholder at any time at
its sole election
|
