VOTING AGREEMENT, dated as of November 6, 1997, among Quality Food
Centers, Inc., a Washington corporation (the "Company"), and the individuals and
other parties listed on Schedule A attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS, the Company, Xxxx Xxxxx, Inc., a Delaware corporation
("Parent"), and Q-Acquisition Corp., a Washington corporation and a wholly owned
subsidiary of Parent ("Sub"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement"; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) providing for the merger of Sub
with and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, each Stockholder owns the number of shares of Common Stock,
par value $.01 per share, of Parent (the "Parent Common Stock") set forth
opposite his or its name on Schedule A attached hereto (such shares of Parent
Common Stock, together with any other shares of capital stock of Parent acquired
by such Stockholder after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Company has requested that each Stockholder enter into this
Agreement;
NOW, THEREFORE, to induce the Company to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. Each
Stockholder hereby, severally and not jointly, represents and warrants to the
Company as of the date hereof in respect of himself or itself as follows:
(a) AUTHORITY. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation
of the Stockholder enforceable in accordance with its terms. The execution
and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement,
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note, bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise, license, judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to the Stockholder
or to the Stockholder's property or assets. If the Stockholder is married
and the Stockholder's Subject Shares constitute community property or
otherwise need spousal or other approval to be legal, valid and binding,
this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such spouse in accordance with its terms. No trust of
which such Stockholder is a trustee requires the consent of any beneficiary
to the execution and delivery of this Agreement or to the consummation of
the transactions contemplated hereby.
(b) THE SUBJECT SHARES. The Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set
forth opposite his or its name on Schedule A attached hereto, free and
clear of any Encumbrances. The Stockholder does not own, of record or
beneficially, any shares of capital stock of Parent other than the Subject
Shares set forth opposite his or its name on Schedule A attached hereto.
The Stockholder has the sole right to vote, and the sole power of
disposition with respect to, such Subject Shares, and none of such Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or disposition of such Subject
Shares, except as contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Stockholder that the Company has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and compliance with
the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any provision
of, the certificate of incorporation or by-laws of the Company, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
the Company or to the Company's property or assets.
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3. AGREEMENT TO VOTE. Until the termination of this Agreement in
accordance with Section 6, each Stockholder, severally and not jointly, agrees
that, at any meeting of stockholders of Parent called to vote upon the issuance
of Parent Common Stock in the Merger or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with respect to
the issuance of Parent Common Stock in the Merger is sought, the Stockholder
shall be present (in person or by proxy) and shall vote (or cause to be voted)
all Subject Shares then beneficially owned by such Stockholder in favor of the
issuance of Parent Common Stock in the Merger.
4. FURTHER ASSURANCES. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as the Company may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
5. NO RESTRICTION ON TRANSFER. Nothing in this Agreement shall
limit the right of any Stockholder to sell, transfer, hypothecate, pledge or
otherwise dispose of (collectively, "Transfer") any of the Subject Shares and no
Transferee of any Subject Shares shall have any obligation hereunder.
6. TERMINATION. This Agreement shall terminate upon the earlier of (a)
the date of termination of the Merger Agreement, (b) the date of termination of
the Shareholders Agreement dated as of November 6, 1997 between Xxxx Xxxxx, Inc.
and Xxxx/Chilmark Fund L.P. or (c) the Effective Time.
7. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the Company in
accordance with Section 8.2 of the Merger Agreement and to the Stockholders
at their respective addresses set forth on Schedule A attached hereto (or
at such other address for a party as shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this
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Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof and (ii) is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
8. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court; (iii) agrees that such party will not
bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a Federal court sitting in the state of Delaware
or a Delaware state court and (iv) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this Agreement
or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
QUALITY FOOD CENTERS, INC.
By:
----------------------------------------------
Name:
Title:
STOCKHOLDERS:
THE YUCAIPA COMPANIES
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA ARIZONA PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS II, L.P.
YUCAIPA SSV PARTNERS, L.P.
By: THE YUCAIPA COMPANIES as the
General Partner of each of the
entities listed above
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxx
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THE XXX XXXXX MARITAL TRUST
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
THE TRUST FOR THE CHILDREN OF
XXXXXXX X. XXXXX
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
THE TRUST FOR THE CHILDREN OF
XXXX X. XXXXX
By:
----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Trustee
THE TRUST FOR THE CHILDREN OF
XXXXXXX X. XXXXX
By:
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
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SCHEDULE A
NAME SHARE OF XXXX XXXXX, INC.
---- COMMON STOCK
-------------------------
The Yucaipa Companies 420,000
00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa Arizona Partners, L.P. 574,522
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa Smitty's Partners, L.P. 631,400
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa Smitty's Partners II, L.P. 287,264
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa SSV Partners, L.P. 2,815,620
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 1,372,994
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Xxxx X. Xxxxx 530,686
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Dee Xxxx Xxxxx Marital Trust I 471,002
c/o Xxx X. Xxxxx
0000 Xxxxx Xxxx Xxxxxxx Xxxx.
Xxxx Xxxx Xxxx, XX 00000
Trust for the Children of Xxxxxxx X. Xxxxx 1,176,740
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Trust for the Children of Xxxx X. Xxxxx 1,383,996
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
----------
-------------------
(1) The children of Xxxx X. Xxxxx have individual trusts of shares of
Class A Common Stock. Xxxx X. Xxxxx is the trustee and the trusts are
as follows: Xxxx Xxxxx Xxxxx Trust -- 41,353 shares, Xxxxx Xxxxxx
Xxxxx Trust -- 28,670 shares and Xxxxxxx Xxx Xxxxx Trust -- 28,670
shares
