Exhibit 99.2
JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of Portillo’s Inc., a Delaware corporation (the “Company”); and
WHEREAS, Engaged Capital Flagship Master Fund, LP, Engaged Capital Co-Invest XVII, LP, Engaged Capital, LLC, Engaged Capital Holdings, LLC and Glenn W. Welling (collectively, “Engaged Capital”), and Charles R. Morrison and Nicole Portwood (collectively, the “Nominees”) wish to form a group for the purpose of (i) seeking representation on the Board of Directors of the Company (the “Board”) at the 2025 annual meeting of stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “Annual Meeting”), (ii) soliciting proxies for the election of certain persons nominated for election to the Board at the Annual Meeting (including those nominated by or on behalf of Engaged Capital), (iii) taking all other action necessary to achieve the foregoing and (iv) taking any other actions the Group (as defined below) determines to undertake in connection with their respective investment in the Company (collectively, the “Purposes”).
NOW, IT IS AGREED, this 3rd day of March 2025 by the parties hereto:
1.In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company to the extent required by applicable law. Each member of the Group shall be responsible for the accuracy and completeness of his, her or its own disclosure therein, and shall not be responsible for the accuracy and completeness of the information concerning the other members of the Group, unless such member knows or has reason to know that such information is inaccurate.
2.So long as this agreement is in effect, each Nominee agrees to provide Engaged Capital advance written notice prior to effecting any purchase, sale, acquisition or disposition of any securities of the Company which such Nominee has, or would have, direct or indirect beneficial ownership so that Engaged Capital has an opportunity to review the potential implications of any such transaction in the securities of the Company and pre-clear any such potential transaction in the securities of the Company by any of the Nominees. Each Nominee agrees that such Nominee shall not undertake or effect any purchase, sale, acquisition or disposition of any securities of the Company without the prior written consent of Engaged Capital. For purposes of this agreement, the term “beneficial ownership” shall have the meaning of such term set forth in Rule 13d-3 under the Exchange Act.
3.So long as this agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) and Engaged Capital of any changes to his, her or its ownership of securities of the Company by 4:30 PM Eastern Time on the date of any such change in ownership of securities of the Company.
4.Each of the undersigned agrees to form the Group for the Purposes as set forth above.
5.Engaged Capital shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agrees to pay directly all such pre-approved expenses.
6.Each of the undersigned agrees that any filing with the Securities and Exchange Commission, press release or other communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 4 shall be as directed by Engaged Capital.
7.The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Except as provided in Section 2 and Section 3, nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he, she or it deems appropriate, in his, her or its sole discretion, provided that all such purchases and sales are made in compliance with all applicable securities laws and the provisions of this agreement.
8.This agreement may be executed in two or more counterparts, which together shall constitute a single agreement. Any signature to this agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall have the same effect as physical delivery of the paper document bearing the original signature.
9.This agreement is governed by and will be construed in accordance with the laws of the State of New York. In the event of any dispute arising out of the provisions of this agreement or their investment in the Company, the parties hereto consent and submit to the exclusive jurisdiction of the United States District Court for the Southern District of New York located in the Borough of Manhattan or the courts of the State of New York located in the County of New York.
10.The parties’ rights and obligations under this agreement (other than the rights and obligations set forth in Section 5 and Section 9, which shall survive any termination of this agreement) shall terminate upon the earlier to occur of (i) the certification of the results of the Annual Meeting or (ii) Engaged Capital providing written notice of termination to the other parties.
11.Each party hereby waives the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
12.The terms and provisions of this agreement may not be modified, waived or amended without the written consent of each of the parties hereto.
13.Each party acknowledges that Olshan shall act as counsel for both the Group and Engaged Capital relating to their investment in the Company.
14.Each party hereby agrees that this agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written.
| Engaged Capital Flagship Master Fund, LP | |||
| By: | Engaged Capital, LLC General Partner | ||
| By: | /s/ Glenn W. Welling | ||
| Name: | Glenn W. Welling | ||
| Title: | Founder and Chief Investment Officer | |
| Engaged Capital Co-Invest XVII, LP | |||
| By: | Engaged Capital, LLC General Partner | ||
| By: | /s/ Glenn W. Welling | ||
| Name: | Glenn W. Welling | ||
| Title: | Founder and Chief Investment Officer | ||
| Engaged Capital, LLC | |||
| By: | /s/ Glenn W. Welling | ||
| Name: | Glenn W. Welling | ||
| Title: | Founder and Chief Investment Officer | ||
| Engaged Capital Holdings, LLC | |||
| By: | /s/ Glenn W. Welling | ||
| Name: | Glenn W. Welling | ||
| Title: | Sole Member | ||
| /s/ Glenn W. Welling | |
| Glenn W. Welling |
| /s/ Charles R. Morrison | |
| CHARLES R. MORRISON |
| /s/ Nicole Portwood | |
| NICOLE PORTWOOD |
