Exhibit 3
SUPPORT AGREEMENT
AGREEMENT, dated as of June 30, 1997, by and among
JP FOODSERVICE, INC., a Delaware corporation ("JPFI") and the
other persons whose names are set forth on the signature
pages hereto (collectively, the "Stockholders").
WHEREAS, concurrently herewith, JPFI, Xxxxxx Acqui-
sition Corp., a Delaware corporation and a wholly-owned sub-
sidiary of JPFI ("Merger Sub") and Xxxxxx-Xxxxxx, Inc., a
Delaware corporation ("Rykoff"), are entering into an Agree-
ment and Plan of Merger (the "Merger Agreement"; capitalized
terms used without definition herein having the meanings as-
cribed thereto in the Merger Agreement);
WHEREAS, the Stockholders are the beneficial owners
of the number of shares of Rykoff Common Stock set forth in
Schedule I hereto (the "Subject Shares");
WHEREAS, approval of the Merger Agreement by the
stockholders of Rykoff is a condition to the consummation of
the Merger; and
WHEREAS, as a condition to its entering into the
Merger Agreement, JPFI has required that the Stockholders
agree, and the Stockholders have agreed, to enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing
and the mutual covenants and agreements set forth herein, the
parties hereto agree as follows:
Section 1. Agreement to Vote. (a) Each Stock-
holder hereby agrees to attend the Rykoff Stockholders Meet-
ing, in person or by proxy, and to vote (or cause to be
voted) all Subject Shares, and any other voting securities of
Rykoff, whether issued heretofore or hereafter, that such
Stockholder owns or has the right to vote, for approval and
adoption of the Merger Agreement and the Merger. Such agree-
ment to vote shall apply also to any adjournment or adjourn-
ments of the Rykoff Stockholders Meeting, and to any other
meeting of stockholders at which any item of business re-
ferred to in the preceding sentence is presented for ap-
proval.
(b) To the extent inconsistent with the foregoing
provisions of this Section 1, each Stockholder hereby revokes
any and all previous proxies with respect to such
Stockholder's Subject Shares or any other voting securities
of Rykoff.
Section 2. No Solicitation. No Stockholder shall,
directly or indirectly, solicit or encourage (including by
way of furnishing information), or authorize any individual,
corporation or other entity to solicit or encourage (includ-
ing by way of furnishing information), from any third party
any inquiries or proposals relating to, or conduct negotia-
tions or discussions with any third party with respect to, or
take any other action to facilitate any inquiries or the mak-
ing of any proposal that constitutes, or that may reasonably
be expected to lead to, any proposal or offer relating to the
disposition of business or assets of Rykoff or JPFI or their
respective subsidiaries, or the acquisition of the voting se-
curities of Rykoff or JPFI or their respective subsidiaries,
or the merger or consolidation of Rykoff or JPFI or any of
their respective subsidiaries with or into any corporation or
other entity other than as provided in the Merger Agreement,
the Option Agreements or the Support Agreement (and the
Stockholders shall promptly notify JPFI of all of the rel-
evant details relating to all inquiries and proposals which
such Stockholders may receive relating to any such matters).
Section 3. Securities Act Covenants and Represen-
tations. Each Stockholder hereby agrees and represents to
JPFI as follows:
(a) Such Stockholder has been advised that the of-
fering, sale and delivery of JPFI Common Stock pursuant to
the Merger will be registered under the Securities Act on a
Registration Statement on Form S-4. Such Stockholder has
also been advised, however, that to the extent such Stock-
holder is considered an "affiliate" of Rykoff at the time the
Merger Agreement is submitted to a vote of the stockholders
of Rykoff any public offering or sale by such Stockholder of
any shares of JPFI Common Stock received by such Stockholder
in the Merger will, under current law, require either (i) the
further registration under the Securities Act of any shares
of JPFI Common Stock to be sold by such Stockholder, (ii)
compliance with Rule 145 promulgated by the SEC under the Se-
curities Act or (iii) the availability of another exemption
from such registration under the Securities Act.
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(b) Such Stockholder has read this Agreement and
the Merger Agreement and has discussed their requirements and
other applicable limitations upon such Stockholder's ability
to sell, transfer or otherwise dispose of shares of JPFI Com-
mon Stock, to the extent such Stockholder believed necessary,
with such Stockholder's counsel or counsel for Rykoff.
(c) Such Stockholder also understands that stop
transfer instructions will be given to JPFI's transfer agent
with respect to JPFI Common Stock and that a legend will be
placed on the certificates for the JPFI Common Stock issued
to such Stockholder, or any substitutions therefor, to the
extent such Stockholder is considered an "affiliate" of
Rykoff at the time the Merger Agreement is submitted to a
vote of the stockholders of Rykoff.
Section 4. Pooling Covenants and Representations.
Each Stockholder hereby agrees and represents to JPFI that
such Stockholder will not sell, transfer or otherwise dispose
of any securities of Rykoff or of any shares of JPFI Common
Stock received by such Stockholder in the Merger or other
shares of capital stock of JPFI during the period beginning
30 days prior to the Effective Time and ending at such time
as results covering at least 30 days of combined operations
of Rykoff and JPFI have been published by JPFI, in the form
of a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Form
10-K, 10-Q or 8-K, or any other public filing or announcement
which includes the combined results of operations, except for
transfers or other dispositions that, taking into account the
actions of other affiliates of Rykoff, will not prevent JPFI
from accounting for the Merger as a pooling of interests.
Section 5. Further Assurances. Each of JPFI and
the Stockholders shall execute and deliver such additional
instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate,
carry out and comply with all of its obligations under this
Agreement. Without limiting the generality of the foregoing,
none of JPFI or any of the Stockholders shall enter into any
agreement or arrangement (or alter, amend or terminate any
existing agreement or arrangement) if such action would mate-
rially impair the ability of any party to effectuate, carry
out or comply with all the terms of this Agreement.
Section 6. Representations and Warranties of JPFI.
JPFI represents and warrants to each Stockholder as follows:
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Each of this Agreement and the Merger Agreement has been ap-
proved by the Board of Directors of JPFI, representing all
necessary corporate action on the part of JPFI other than ap-
proval of the Merger Agreement by the stockholders of JPFI.
Each of this Agreement and the Merger Agreement has been duly
executed and delivered by a duly authorized officer of JPFI.
Each of this Agreement and the Merger Agreement constitutes a
valid and binding agreement of JPFI, enforceable against JPFI
in accordance with its terms, except as may be limited by ap-
plicable bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general application which may af-
fect the enforcement of creditors' rights generally and by
general equitable principles. JPFI covenants and agrees
that, effective as of the Effective Time, JPFI shall assume
the rights and obligations of Rykoff under that certain Reg-
istration Rights Agreement, dated as of May 17, 1996, by and
among Rykoff and the other persons whose signatures are set
forth on the signature pages thereto pursuant to an agreement
in form and substance satisfactory to JPFI and such other
persons.
Section 7. Representations and Warranties of
Stockholders. Each Stockholder represents and warrants to
JPFI that this Agreement (i) has been duly authorized, ex-
ecuted and delivered by such Stockholder and (ii) constitutes
the valid and binding agreement of such Stockholder, enforce-
able against such Stockholder in accordance with its terms,
except as may be limited by applicable bankruptcy, insol-
vency, reorganization, moratorium and other similar laws of
general application which may affect the enforcement of cred-
itors' rights generally and by general equitable principles.
Each such Stockholder is the record and beneficial owner of
the Subject Shares set forth opposite its respective name on
Schedule I. The Subject Shares listed next to the name of
such Stockholder on Schedule I hereto are the only voting se-
curities of Rykoff owned (beneficially or of record) by such
Stockholder. Neither the execution or delivery of this
Agreement nor the consummation by such Stockholder of the
transactions contemplated hereby will violate (a) the cer-
tificate of incorporation, by-laws, partnership agreement or
other organizational document, as applicable, of any such
Stockholder, or (b) any provisions of any law, rule or regu-
lation applicable to such Stockholder or any contract or
agreement to which such Stockholder is a party, other than
such violations described in the foregoing clause (b) as
would not prevent or materially delay the performance by such
Stockholder of its obligations hereunder or impose any li-
ability or obligation on JPFI. Each Stockholder agrees that,
at or prior to the Effective Time, it shall represent to
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Rykoff, JPFI or their respective counsel that, during the
two-year period immediately following the Effective Time, it
shall not (other than incident or pursuant to an Extraordi-
nary Transaction) sell, exchange or otherwise dispose of (or
enter into an agreement to sell, exchange or otherwise dis-
pose of) shares of JPFI Common Stock equal to more than the
lesser of (i) 25% or (ii) the Shortfall Percent, in each case
of the shares of JPFI Common Stock received by it in the
Merger. The "Shortfall Percent" shall equal that percentage
of the total number of shares of JPFI Common Stock issued in
the Merger as, when added to the following percentage of
shares of JPFI Common Stock, shall equal 45%: 100% minus the
sum of (i) the percent of shares of JPFI Common Stock issu-
able in the Merger to the Stockholders and (ii) the percent
of shares of JPFI Common Stock issuable in the Merger to any
other persons that can be identified immediately prior to the
Merger as holding 5% or more of the total number of shares of
Rykoff Common Stock outstanding at such time (for which pur-
poses shares held by a family of mutual funds shall, to the
extent possible, be identified with separate funds within
such family and, to the extent so separately identifiable,
treated as separate stockholders). For purposes of the re-
striction on disposition of JPFI Common Stock pursuant to the
foregoing representation, the shares of JPFI Common Stock
held by the Stockholders shall be aggregated, and the Stock-
holders shall be regarded as a single Stockholder. Notwith-
standing the foregoing, no Stockholder shall be required to
provide the representation described herein if, as a result
of a change in law (including, without limitation, a change
pursuant to Treasury regulations that may be applied, by
election or otherwise, to the Merger), the facts intended to
be reached by such representation are not a necessary condi-
tion for qualification of the Merger under Section 368 of the
Internal Revenue Code of 1986, as amended.
For purposes of this Section 7, an "Extraordinary
Transaction" means a merger, consolidation or other business
combination, tender or exchange offer, share exchange, re-
structuring, recapitalization or other similar transaction
involving JPFI, so long as any such transaction is not ar-
ranged as part of an overall plan to which such Stockholder
is a party and pursuant to which the Merger is also being
consummated.
Section 8. Effectiveness and Termination. It is a
condition precedent to the effectiveness of this Agreement
that the Merger Agreement shall have been executed and deliv-
ered and be in full force and effect. In the event the Merg-
er Agreement is terminated in accordance with its terms, this
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Agreement shall automatically terminate and be of no further
force or effect. Upon such termination, except for any
rights any party may have in respect of any breach by any
other party of its or his obligations hereunder, none of the
parties hereto shall have any further obligation or liability
hereunder.
Section 9. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands
or other communications required by or otherwise with respect
to this Agreement shall be in writing and shall be deemed to
have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy
and confirmed by return telecopy, or seven days after being
mailed by first-class mail, postage prepaid in each case to
the applicable addresses set forth below:
If to JPFI:
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to any Stockholder:
Xxxxxxx Xxxxx Capital Partners, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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Attn: Xxxxxx X. Tu, Esq.
Telecopy: (000) 000-0000
and a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Rykoff:
Xxxxxx-Xxxxxx, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx, Esq.
or to such other address as such party shall have designated
by notice so given to each other party.
(b) Amendments, Waivers, Etc. This Agreement may
not be amended, changed, supplemented, waived or otherwise
modified or terminated except by an instrument in writing
signed by JPFI, each of the Stockholders and Rykoff.
(c) Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of and be en-
forceable by the parties and their respective successors and
assigns, including without limitation in the case of any cor-
porate party hereto any corporate successor by merger or oth-
erwise, and in the case of any individual party hereto any
trustee, executor, heir, legatee or personal representative
succeeding to the ownership of such party's Subject Shares or
other securities subject to this Agreement. Notwithstanding
any transfer of Subject Shares, the transferor shall remain
liable for the performance of all obligations under this
Agreement of the transferor.
(d) Entire Agreement. This Agreement embodies the
entire agreement and understanding among the parties relating
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to the subject matter hereof and supersedes all prior agree-
ments and understandings relating to such subject matter.
There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than
those expressly set forth in this Agreement.
(e) Severability. If any term of this Agreement
or the application thereof to any party or circumstance shall
be held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such term to the
other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by ap-
plicable law, provided that in such event the parties shall
negotiate in good faith in an attempt to agree to another
provision (in lieu of the term or application held to be in-
valid or unenforceable) that will be valid and enforceable
and will carry out the parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge
that money damages are not an adequate remedy for violations
of this Agreement and that any party may, in its sole discre-
tion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court
may deem just and proper in order to enforce this Agreement
or prevent any violation hereof and, to the extent permitted
by applicable law, each party waives any objection to the im-
position of such relief.
(g) Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and
not alternative, and the exercise or beginning of the exer-
cise of any thereof by any party shall not preclude the si-
multaneous or later exercise of any other such right, power
or remedy by such party.
(h) No Waiver. 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, and 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 xx-
xxxx such compliance.
(i) No Third-Party Beneficiaries. This Agreement
is not intended to be for the benefit of and shall not be en-
forceable by any person or entity who or which is not a party
hereto.
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(j) Jurisdiction. Each party hereby irrevocably
submits to the exclusive jurisdiction of the Court of Chan-
cery in the State of Delaware or the United States District
Court for the Southern District of New York or any court of
the State of New York located in the City of New York in any
action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceed-
ing shall be brought only in such court (and waives any ob-
jection based on forum non conveniens or any other objection
to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this
paragraph (j) and shall not be deemed to be a general submis-
sion to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each
party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(k) Governing Law. This Agreement and all dis-
putes hereunder shall be governed by and construed and en-
forced in accordance with the General Corporation Law of the
State of Delaware to the fullest extent possible and other-
wise by the internal laws of the State of New York without
regard to principles of conflicts of law.
(l) Name, Captions, Gender. The name assigned
this Agreement and the section captions used herein are for
convenience of reference only and shall not affect the inter-
pretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the cor-
responding masculine, feminine or neuter forms.
(m) Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute
one instrument. Each counterpart may consist of a number of
copies each signed by less than all, but together signed by
all, the parties hereto.
(n) Limitation on Liability. No Stockholder shall
have any liability hereunder for any actions or omissions of
any other Stockholder.
(o) Expenses. JPFI and Rykoff shall each bear its
own expenses, and Rykoff shall bear the reasonable expenses
of the Stockholders, incurred in connection with this Agree-
ment and the transactions contemplated hereby, except that in
the event of a dispute concerning the terms or enforcement of
this Agreement, the prevailing party in any such dispute
shall be entitled to reimbursement of reasonable legal fees
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and disbursements from the other party or parties to such
dispute.
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IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the date first above written.
JP FOODSERVICE, INC.
By: /s/ Xxxxx Xxxxxx
Name and Title: Xxxxx X.
Xxxxxx, Chairman,
President and Chief
Executive Officer
XXXXXXX XXXXX CAPITAL PARTNERS,
INC.
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. B-XVIII, L.P.
By: Xxxxxxx Xxxxx LBO Partners No.
B-IV, L.P., as General
Partner
By: Xxxxxxx Xxxxx Capital
Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
XXXXXXX XXXXX KECALP L.P. 1994
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
[SUPPORT AGREEMENT]
ML OFFSHORE LBO PARTNERSHIP
NO. B-XVIII
By: Xxxxxxx Xxxxx LBO Partners
No. B-IV, L.P., as Investment
General Partner
By: Xxxxxxx Xxxxx Capital Partners,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
ML IBK POSITIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
MLCP ASSOCIATES L.P. NO. II
By: Xxxxxxx Xxxxx Capital Partners,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
MLCP ASSOCIATES L.P. NO. IV
By: Xxxxxxx Xxxxx Capital Partners,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
XXXXXXX XXXXX KECALP L.P. 1991
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
[SUPPORT AGREEMENT]
XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. XIII, L.P.
By: Xxxxxxx Xxxxx LBO Partners No.
IV, L.P., as General Partner
By: Xxxxxxx Xxxxx Capital Partners,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
ML OFFSHORE LBO PARTNERSHIP NO. XIII
By: Xxxxxxx Xxxxx LBO Partners No.
IV, L.P., as Investment General
Partner
By: Xxxxxxx Xxxxx Capital Partners,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
ML EMPLOYEES LBO PARTNERSHIP NO. I,
L.P.
By: ML Employees LBO Managers,
Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
XXXXXXX XXXXX KECALP L.P. 1987
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
[SUPPORT AGREEMENT]
MERCHANT BANKING L.P. NO. II
By: Xxxxxxx Xxxxx MBP Inc., as Gen-
eral Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name and Title:
Rykoff hereby consents to the entry by each
Stockholder into this Agreement, and the consummation of the
transactions expressly contemplated hereby, in each case for
purposes of Section 3.1(a) of the that certain Standstill
Agreement (the "Standstill Agreement"), dated as of May 17,
1996, by and between RSI and the ML Entities (as defined
therein). Rykoff represents and warrants to JPFI that the
entry by each Stockholder into this Agreement, and the con-
summation of the transactions expressly contemplated hereby,
each has been previously approved by the affirmative vote of
a majority of the Continuing Directors (as defined in the
Standstill Agreement) of Rykoff at a meeting at which a Con-
tinuing Director Quorum (as defined in the Standstill Agree-
ment) was present. Rykoff also hereby acknowledges and con-
sents to its obligations pursuant to Section 9(o) hereof.
XXXXXX-XXXXXX, INC.
By: /s/ Xxxx Xxx Xxxxxxxxxxxx
Name: Xxxx Xxx Xxxxxxxxxxxx
Title: Chairman and Chief
Executive Officer
[SUPPORT AGREEMENT]
