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FORM OF SUPPORT AGREEMENT
SUPPORT AGREEMENT (this "Agreement"), dated as of November 2, 2000,
by and among Lukoil Americas Corporation, a Delaware corporation ("Parent"),
Mikecon Corp., a Delaware corporation and the wholly-owned subsidiary of Parent
("Purchaser"), and __________ ("Seller").
WHEREAS, concurrently herewith, Parent, Purchaser and Getty
Petroleum Marketing Inc., a Maryland corporation (the "Company"), are entering
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement", which term shall not include any amendment to such Agreement which
decreases the Offer Price or changes the form of consideration payable in the
Offer, unless Seller consents to the inclusion of such amendment in such term).
Capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement, pursuant to which the Purchaser agrees to make a tender
offer (the "Offer") for all outstanding shares of Company Common Stock, at $5.00
per share (the "Offer Price") net to the seller in cash, to be followed by a
merger (the "Merger") of the Purchaser with and into the Company;
WHEREAS, as of the date hereof, Seller beneficially owns directly
and indirectly ________ shares of Company Common Stock (the "Owned Shares"),
excluding options, if any beneficially owned, to acquire shares of Company
Common Stock (the "Options");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement and make the Offer, Parent and the Purchaser have required that
Seller agree, and Seller hereby agrees, (i) to tender pursuant to the Offer the
Owned Shares, together with any shares of Company Common Stock acquired after
the date hereof and prior to the termination of the Offer, whether upon the
exercise of Options, conversion of convertible securities or otherwise
(collectively, the "Tender Shares") on the terms and subject to the conditions
provided for in this Agreement and (ii) to enter into the other agreements set
forth herein; and
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 to Vote.
1.1. Tender. Seller hereby agrees to validly tender (or cause the
record owner of such shares to validly tender), pursuant to and in accordance
with the terms of the Offer, as soon as practicable after commencement of the
Offer but in no event later than ten (10) business days after the date of
commencement of the Offer, the Tender Shares and to not withdraw such Tender
Shares, except following termination of the Merger Agreement or the Offer
pursuant to its respective terms. Seller hereby acknowledges and agrees that
Parent's and the Purchaser's obligation to accept for payment and pay for the
Tender Shares is subject to the terms and conditions of the Offer. Seller hereby
permits Parent and the Purchaser to publish and disclose in the Offer Documents
and, if approval of the Company's stockholders is required under applicable law,
the Proxy Statement (including all documents and schedules filed with the
Securities and
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Exchange Commission) his identity and ownership of the Tender Shares and the
nature of his commitments, arrangements and understandings under this Agreement.
1.2. Voting. Seller hereby agrees that, during the time the Merger
Agreement and this Agreement are in effect, at any meeting of the stockholders
of the Company, however called, Seller shall (a) vote the Tender Shares in favor
of the Merger; (b) vote the Tender Shares against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement; and (c)
vote the Tender 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 or the Offer,
including, but not limited to: (i) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any of its Subsidiaries; (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 and its Subsidiaries; (iii) any
change in the management or the Company Board, except as contemplated under the
Merger Agreement or as otherwise agreed to in writing by the Purchaser; (iv) any
material change in the present capitalization or dividend policy of the Company;
(v) any other material change in the Company's corporate structure or business;
or (vi) any transaction entered into pursuant to an Company Takeover Proposal.
Seller hereby revokes any proxy previously granted by him with respect to the
Tender Shares and shall not enter into any agreement with or grant any proxy to
any person or entity, with the exception set forth in Section 1.3 hereof, prior
to the termination of this Agreement to vote or give instructions in any manner
inconsistent with clauses (i)-(v) of the preceding sentence.
1.3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Subject to Section 1.3(c), Seller hereby irrevocably grants to,
and appoints, Xxxxx Xxxxxxx in his capacity as representative of the Purchaser
or Parent, Seller's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Seller, to vote the
Tender Shares in favor of the Merger and other transactions contemplated by the
Merger Agreement, against any Company Takeover Proposal and otherwise as
contemplated by Section 1.2.
(b) Seller represents that any proxies heretofore given and in
effect on the date hereof in respect of the Tender Shares are revocable, and
Seller hereby revokes any such proxies.
(c) Seller understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon Seller's execution and delivery of
this Agreement. Seller hereby affirms that the irrevocable proxy set forth in
this Section 1.3 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 Seller under this Agreement. Seller hereby further affirms that
the irrevocable proxy is coupled with an interest and may under no circumstances
be revoked unless the Merger Agreement has been terminated in accordance with
its terms. Seller 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 2-507(d) of the Maryland General Corporation Law.
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1.4. No Inconsistent Arrangements. Seller hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
he shall not (i) except to (a) the Purchaser or (b) members of Seller's family
or any trusts or partnerships the beneficiaries or equity owners of which,
respectively, are members of Seller's family (and which, prior to a transfer,
shall agree with Purchaser and Parent in writing to be bound by the provisions
of this Agreement), transfer (which term shall include, without limitation, any
sale, gift, pledge or other disposition), or consent to any transfer of, any or
all of the Tender Shares or any interest therein, (ii) except with Parent, enter
into any contract, option or other agreement or understanding with respect to
any transfer of any or all of the Tender Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
the Tender Shares, (iv) deposit any Tender Shares into a voting trust or enter
into a voting agreement or arrangement with respect to the Tender Shares or (v)
take any other action that would in any way restrict, limit or interfere with
the performance of his obligations hereunder or the transactions contemplated
hereby or by the Merger Agreement or which would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.5. No Solicitation. So long as the Merger Agreement has not been
terminated in accordance with its terms, Seller hereby agrees that he shall not
in his capacity as a stockholder (his duties as a director being governed by
statutory law as provided in the Merger Agreement), and shall not permit or
authorize any of his affiliates, representatives or agents to, directly or
indirectly, encourage, solicit, explore, participate in or initiate discussions
or negotiations with, or provide or disclose any information to, any
corporation, partnership, person or other entity or group (other than Parent,
the Purchaser or any of their affiliates or representatives) concerning any
Company Takeover Proposal or enter into any agreement, arrangement or
understanding requiring the Company to abandon, terminate or fail to consummate
the Merger or any other transactions contemplated by the Merger Agreement.
Seller shall immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any Company
Takeover Proposal. From and after the execution of this Agreement, Seller
promptly shall advise Parent orally and in writing of any Company Takeover
Proposal or any inquiry with respect to or that could reasonably be expect to
lead to any Company Takeover Proposal, the identity of the person making any
such Company Takeover Proposal or inquiry and the material terms of any such
Company Takeover Proposal. Seller shall keep Parent fully informed of the status
of any such Company Takeover Proposal or inquiry. Notwithstanding the foregoing,
any action taken by the Seller in his capacity as a director of the Company in
accordance with Section 5.4(b) of the Merger Agreement shall be deemed not to
violate this Section 1.5.
1.6. Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, Seller hereby agrees to use his reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and the Merger Agreement. Seller shall promptly consult with Parent and provide
any necessary information and material with respect to all filings made by
Seller with any Governmental Entity in connection with this Agreement and the
Merger Agreement and the transactions contemplated hereby and thereby.
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1.7. Waiver of Appraisal Rights. Seller hereby waives any rights of
appraisal or rights to dissent from the Merger that he may have.
2. Expiration. This Agreement and Seller's obligation to tender
provided hereto shall terminate on the earlier of: (i) the payment for the
shares of Company Common Stock pursuant to the Offer, (ii) the Effective Time of
the Merger and (iii) at the time the Merger Agreement is terminated in
accordance with its terms; provided that any such termination shall not effect
Seller's liability for any breach of Seller's obligations hereunder arising
prior to such termination.
3. Representation and Warranties. Seller hereby represents and
warrants to Parent as follows:
(a) Title. Seller has good and valid title to the Owned Shares,
free and clear of any lien, pledge, charge, encumbrance or claim of whatever
nature and, upon the purchase of the Tender Shares by the Purchaser, Seller will
deliver good and valid title to the Tender Shares, free and clear of any lien,
charge, encumbrance or claim of whatever nature.
(b) Ownership of Shares. On the date hereof, the Owned Shares are
owned of record or beneficially by Seller and, on the date hereof, the Owned
Shares constitute all of the shares of Company Common Stock owned of record or
beneficially by Seller. Seller has sole voting power and sole power of
disposition with respect to all of the Owned Shares, with no restrictions,
subject to applicable federal securities laws, on Seller's rights of disposition
pertaining thereto.
(c) Power; Binding Agreement. Seller has the legal capacity, power
and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by Seller
will not violate any other agreement to which Seller 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 Seller
and constitutes a valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms.
(d) No Conflicts. Other than in connection with or in compliance
with the provisions of the Exchange Act and the HSR Act, no authorization,
consent or approval of, or filing with, any court or any public body or
authority is necessary for the consummation by Seller of the transactions
contemplated by this Agreement. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby 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,
encumbrance, pledge, charge or claim upon any of the properties or assets of
Seller under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which Seller is a party or by which its
properties or assets are bound.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or
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commission in connection with the transactions to be effected pursuant to this
Agreement based upon arrangements made by or on behalf of Seller.
4. Additional Shares. Seller hereby agrees, while this Agreement is
in effect, to promptly notify Parent of the number of any new shares of Company
Common Stock acquired by Seller, if any, after the date hereof.
5. Further Assurances. From time to time, at the Parent's request
and without further consideration, Seller shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made herein
shall terminate upon Seller's sale of the Tender Shares to the Purchaser in the
Offer or pursuant to exercise of the Stock Option, other than Seller's
representation and warranty in Sections 3(a) and (b) which shall survive the
sale of the Tender Shares and the termination of this Agreement following such
sale in perpetuity.
6.2 Entire Agreement; Assignment. This Agreement (i) constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or otherwise, provided that
Parent may assign its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or telecopy 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:
If to Seller:
Facsimile:
with a copy to (which by itself shall not constitute notice)
Xxxxxx & Xxxxxxx
Sears Tower, Suite 5800
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
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If to Parent:
Lukoil Americas Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to copy to (which by itself shall not constitute
notice):
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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.
6.5 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. Each of Seller, Parent and the Purchaser
irrevocably submits to the exclusive jurisdiction of any New York state or
federal court sitting in New York County in the State of New York in any action
arising out of or relating to this Agreement, hereby irrevocably agrees that all
claims in respect of such action may be heard and determined in such New York
state or federal court, hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding, and hereby irrevocably waives the right to a trial by
jury.
6.6 Specific Performance. Seller recognizes and acknowledges that a
breach by it of any covenants or agreements contained in this Agreement will
cause Parent to sustain damages for which it would not have an adequate remedy
at law, and therefore Seller agrees that in the event of any such breach Parent
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.
6.7 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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6.9. Severability. Whenever possible, each provision or portion of
any 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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(The Signature Page Follows)
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IN WITNESS WHEREOF, Parent, Purchaser and Seller have caused this
Agreement to be duly executed as of the day and year first above written.
LUKOIL AMERICAS CORPORATION
By:
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Xxxxx Xxxxxxx,
Chairman of the Board
MIKECON CORP.
By:
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Xxxxx Xxxxxxx,
Chairman of the Board
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[Seller]
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