STOCKHOLDERS AGREEMENT
AGREEMENT dated October 31, 1996, among FOOD LION, INC., a
corporation organized under the laws of North Carolina
("Parent"), KK ACQUISITION CORP., a Delaware corporation and an
indirect wholly owned subsidiary of Parent ("Sub"), KASH N' XXXXX
FOOD STORES, INC., a Delaware corporation (the "Company"), and
the other parties signatory hereto (individually a "Stockholder"
and collectively, the "Stockholders").
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Sub and the Company,
are entering into an Agreement and Plan of Merger (as such
agreement may hereafter be amended from time to time, the "Merger
Agreement"), pursuant to which Sub will be merged with and into
the Company (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into
the Merger Agreement, Parent has required that the Company and
Stockholders agree, and the Company and Stockholders have agreed,
to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and
agreements contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 "Company Common Stock" shall mean at any time the
Common Stock, $.01 par value, of the Company.
1.2 "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization, limited liability company or other entity.
1.3 Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
2. Provisions Concerning Company Common Stock. Each
Stockholder hereby agrees that, during the period commencing on
the date hereof and continuing until the first to occur of the
Effective Time or termination of this Agreement, at any meeting
of the holders of Company Common Stock, however called, or in
connection with any written consent of the holders of Company
Common Stock, such Stockholder shall vote (or cause to be voted)
the number of shares of Company Common Stock (collectively with
the associated Company Rights, the "Shares") set forth opposite
such Stockholder's name on Schedule 1 hereto (collectively with
the associated Company Rights, the "Existing Shares") and any
Shares acquired by such Stockholder after the date hereof
(collectively with the Existing Shares, the "Option Shares"): (i)
in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance
thereof and hereof; (ii) against any action, any failure to act,
or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or this
Agreement (before giving effect to any materiality or similar
qualifications contained therein); and (iii) except as otherwise
agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the
Company or its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (C) (1) any change in a majority of the persons
who constitute the board of directors of the Company; (2) any
change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or
Bylaws; (3) any other material change in the Company's corporate
structure or business; or (4) any other action involving the
Company or its Subsidiaries which is intended, or could
reasonably be expected, to impede, interfere with, delay,
postpone, or materially adversely affect the Merger and the
transactions contemplated by this Agreement and the Merger
Agreement. Each Stockholder agrees that it shall not enter into
any agreement or understanding with any person or entity the
effect of which would be to violate the provisions and agreements
contained in this Section 2.
3. Purchase Right.
3.1 Option Shares. In order to induce Parent and Sub to
enter into the Merger Agreement, each Stockholder hereby grants
to Sub an irrevocable option (the "Stock Option") to purchase the
Option Shares at a cash purchase price per share equal to $26.00
or such higher price as is paid by Sub for Shares in the Offer,
the Merger or otherwise (other than pursuant to Section 3.01(d)
of the Merger Agreement and other than in the settlement or other
resolution of litigation) (the "Purchase Price"). The Stock
Options shall become exercisable, in whole but not in part as to
all then outstanding Stock Options, when all waiting periods
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), required for the purchase of the
Option Shares upon such exercise shall have expired or been
waived, unless there shall then be in effect any preliminary or
final injunction or other order issued by any court or
governmental, administrative or regulatory agency or authority
prohibiting the exercise of the Stock Option pursuant to this
Agreement, and shall remain exercisable, in whole but not in part
as to all then outstanding Stock Options, until termination of
this Agreement in accordance with Section 8.15 hereof. In the
event that Sub wishes to exercise the Stock Options, Sub shall
send a written notice (the "Notice") to the Stockholders
identifying the place for the closing of such purchase (the
"Closing") at least three (3) but not more than five (5) business
days prior to the Closing.
3.2 Payment of Purchase Price. The payment of the Purchase
Price shall be made by wire transfer in immediately available
funds on the date of Closing; provided, however, that, in the
event the Purchase Price is increased pursuant to Section 3.1 to
more than $26.00 per Share, the amount of such increase per Share
shall be paid to each Stockholder in immediately available funds
within one business day after the Effective Time.
4. Other Covenants, Representations and Warranties. Each
Stockholder hereby represents and warrants to Parent with respect
to such Stockholder as follows:
4.1 Ownership of Shares. Stockholder is the record or
beneficial owner of the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto. On the date hereof, the
Existing Shares set forth opposite such Stockholder's name on
Schedule I hereto constitute all of the Shares owned of record by
such Stockholder. Stockholder has sole voting power and sole
power to issue instructions with respect to the matters set forth
in this Agreement and the Proxy (as defined below), sole power of
disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters
set forth in this Agreement and Proxy, in each case with respect
to all of the Existing Shares set forth opposite Stockholder's
name on Schedule I hereto, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement and the Proxy. Following
the date hereof, Stockholder will cooperate with Parent and use
its reasonable best efforts as soon as possible to become the
record owner of any Shares referred to on Schedule I hereto as to
which Stockholder is the beneficial owner and to cause
certificates representing the Shares to be affixed with a legend
reasonably satisfactory to Parent referencing this Agreement and
the Stockholder's obligations hereunder.
4.2 Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of
Stockholder's obligations under this Agreement and the Proxy.
The execution, delivery and performance of this Agreement and the
Proxy have been duly authorized by such Stockholder and do not
and will not violate any other agreement to which Stockholder is
a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement and the
Proxy have been duly and validly executed and delivered by
Stockholder and constitute valid and binding agreements of such
Stockholder, enforceable against such Stockholder in accordance
with their terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law). There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which
Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement, the Proxy or the
consummation by the Stockholder of the transactions contemplated
hereby and thereby.
4.3 No Conflicts. Except for filings under the HSR Act,
the Exchange Act and any applicable state antitrust laws (i) no
filing with, and no permit, authorization, consent or approval
of, any state or federal public body or authority or any other
person is necessary for the execution of this Agreement and the
Proxy by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby and thereby and (ii) none of the
execution and delivery of this Agreement and the Proxy by
Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby and thereby or compliance by
Stockholder with any of the provisions hereof or thereof shall
(A) conflict with or result in any breach of any applicable
organizational documents applicable to Stockholder, (B) result in
a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification
or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Stockholder is a
party or by which such Stockholder or any of such Stockholder's
properties or assets may be bound, or (C) violate any order,
writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Stockholder or any of Stockholder's
properties or assets.
4.4 No Encumbrances. Except pursuant to this Agreement and
the Proxy, Stockholder's Shares and the certificates representing
such Shares are now, and at all times during the term hereof will
be, held by such Stockholder, or by a nominee or custodian for
the benefit of such Stockholder, free and clear of all Liens,
hypothecations, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder. The transfer by Stockholder of its
Shares to Sub in the Offer or otherwise hereunder shall pass to
and unconditionally vest in Sub good and valid title to the
number of Shares to be transferred by Stockholder thereunder or
hereunder, free and clear of all claims, Liens, restrictions,
security interests, pledges, hypothecations, limitations and
encumbrances whatsoever.
4.5 No Solicitation. Until the earlier of the Effective
Time or termination of this Agreement in accordance with its
terms, Stockholder shall not, in its capacity as such, directly
or indirectly, solicit (including by way of furnishing
information) or respond to any inquires or the making of any
proposal by any person or entity, or enter into any negotiations,
agreements or understandings with any Person (other than Parent,
Sub or a person designated by Parent) with respect to the Company
that constitutes an Alternative Proposal. If Stockholder
receives any such inquiry or proposal, then Stockholder shall
promptly inform Parent of the existence thereof.
4.6 Restriction on Transfer, Proxies and Non-Interference.
Beginning on the date hereof and ending on the earlier of the
Effective Time or termination of this Agreement, except as
required to comply with the provisions of this Agreement or the
Proxy, the Stockholder shall not (i) directly or indirectly,
offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to
the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein; (ii) grant any
proxies or powers of attorney, deposit any Shares into a voting
trust or enter into a voting agreement with respect to any
shares; or (iii) take any action that would make any
representation or warranty of such Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling
Stockholder from performing Stockholder's obligations under this
Agreement or the Proxy. Notwithstanding the foregoing, any
Stockholder may sell such Stockholder's Shares in a
privately-negotiated transaction to any person who, as a
condition to such purchase, (i) becomes a party to this Agreement
with the same effect as though an original signatory hereto by a
written instrument in form and substance satisfactory to Parent
and (ii) delivers to Parent a Proxy (as defined in Section 8.18)
with respect to such Shares.
4.7 Waiver of Appraisal Rights. Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger that
Stockholder may have.
4.8 Reliance by Parent. Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to
enter into, the Merger Agreement in reliance upon Stockholder's
execution and delivery of this Agreement and the Proxy.
4.9 Further Assurances. From time to time, at any other
party's request and without further consideration, each party
hereto shall execute and deliver such additional documents and
take all such further lawful action as may be reasonably
necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions
contemplated by this Agreement and the Proxy.
4.10 No Finder's Fees. Other than existing financial
advisory and investment banking arrangements and agreements
entered into by the Company, no broker, investment banker,
financial adviser or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or commission
in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of such Stockholder.
5. Tender of Shares.
5.1 Tender Requirement. Each Stockholder hereby agrees to
validly tender (and not to withdraw) pursuant to and in
accordance with the terms of the Offer (provided that the Offer
is commenced and not amended in a manner adverse to Stockholder),
not later than the tenth business day after commencement of the
Offer pursuant to Section 10.1 of the Merger Agreement and Rule
14d-2 under the Exchange Act, the Option Shares owned by it.
Each Stockholder hereby acknowledges and agrees that the
obligation of Parent or Sub to accept for payment and pay for
Company Common Stock in the Offer, including the Shares, is
subject to the terms and conditions of the Offer. Each
Stockholder shall be entitled to receive the highest price paid
by Sub pursuant to the Offer, the Merger or otherwise (other than
pursuant to Section 3.01(d) of the Merger Agreement and other
than in the settlement or other resolution of litigation).
5.2 Permission to Disclose. Each Stockholder hereby agrees
to permit Parent and Sub to publish and disclose in any documents
filed with any Governmental or Regulatory Authority in connection
with the Merger, including, if Company Stockholders' Approval is
required under applicable law, the Proxy Statement (including all
documents and schedules filed with the SEC), its identity and
ownership of Company Common Stock and the nature of its
commitments, arrangements and understandings under this
Agreement.
6. Stop Transfer; Changes in Shares. Each Stockholder
agrees with, and covenants to, Parent that beginning on the date
hereof and ending on the date of termination of the Agreement,
such Stockholder shall not request that the Company, and the
Company hereby agrees with, and covenants to, Parent that
beginning on the date hereof and ending on the date of
termination of this Agreement it will not, register the transfer
(book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement. In the
event of a dividend or distribution, or any change in the Company
Common Stock by reason of any dividend, split-up,
recapitalization, combination, exchange of shares or the like,
the term "Shares" shall be deemed to refer to and include the
Shares as well as all such dividends and distributions and any
shares into which or for which any or all of the Shares may be
changed or exchanged and the Purchase Price shall be
appropriately adjusted.
7. Conduct as a Director. Notwithstanding anything in
this Agreement to the contrary, the covenants and agreements set
forth herein shall not prevent any of the Stockholders' designees
serving on the Company's Board of Directors from taking any
action, subject to the applicable provisions of the Merger
Agreement, while acting in such designee's capacity as a director
of the Company; provided that, such action shall not in any
manner affect Stockholder's obligations under this Agreement or
the Proxy.
8. Miscellaneous.
8.1 Entire Agreement. This Agreement, the Proxy and the
Merger Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede
all other prior agreements and understandings, both written and
oral, among any of the parties with respect to the subject matter
hereof.
8.2 Certain Events. Each Stockholder agrees that this
Agreement and the Proxy and the obligations hereunder and
thereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law
or otherwise, including, without limitation, such Stockholder's
heirs, guardians, administrators or successors. Notwithstanding
any transfer of Shares, the transferor shall remain liable for
the performance of all obligations of the transferor under this
Agreement.
8.3 Assignment. This Agreement shall not be assigned
without the prior written consent of the other parties hereto and
no rights, or any direct or indirect interest herein, shall be
transferable hereunder without the prior written consent of the
other parties hereto; provided, that, Parent and Sub may assign
or transfer their rights hereunder to any wholly-owned subsidiary
of Parent, which assignment shall not relieve Parent or Sub of
any of their respective obligations hereunder.
8.4 Amendments, Waivers, Etc.. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a written
agreement executed by the parties to be bound thereby.
8.5 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly received if so
given) by hand delivery, telegram, telex or telecopy, or by mail
(registered or certified mail, postage prepaid, return receipt
requested) or by any courier services, such as Federal Express,
providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following
addresses:
If to Stockholders: At the addresses set
forth on Schedule 1 hereto
with a copy to: Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Parent or Sub: Food Lion, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: R. Xxxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx., P.C.
Telephone: (000) 000-0000
Telecopy: (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.
8.6 Severability. Whenever possible, each provision or
portion of any provision of this Agreement and the Proxy 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 or the Proxy 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 and the Proxy 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.
8.7 Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants
or agreements contained in this Agreement or the Proxy will cause
the other parties to sustain damages for which it would not have
an adequate remedy at law for money damages, and therefore each
of the parties hereto agrees that in the event of any such breach
the aggrieved parties 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
they may be entitled, at law or in equity.
8.8 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or the Proxy or otherwise available
in respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
8.9 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or the
Proxy 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 or thereunder, and any custom or
practice of the parties at variance with the terms hereof or
thereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand
such compliance.
8.10 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable
by, any person or entity who or which is not a party hereto.
8.11 Governing Law. This Agreement and the Proxy shall be
governed and construed in accordance with the laws of the State
of Delaware, without giving effect to the principles of conflicts
of law thereof.
8.12 Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court
for the District of Delaware or any court of the State of
Delaware located in the City of Wilmington in any action, suit or
proceeding arising in connection with this Agreement or the
Proxy, and agrees that any such action, suit or proceeding shall
be brought only in such court (and waives any objection 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 Section 8.12 and shall not be
deemed to be a general submission to the jurisdiction of said
Courts or in the State of Delaware other than for such purposes.
8. 13 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.
8. 14 Counterparts; Effectiveness. This Agreement may be
executed in counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one
and the same Agreement. Notwithstanding the foregoing, this
Agreement shall not be effective as to any Stockholder until
executed by all Stockholders.
8. 15 Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned, by any
Stockholder at any time prior to the exercise of the Stock Option
as to such Stockholder's Option Shares (such date being referred
to herein as the "Termination Date"):
8.15.1 At any time after the Merger Agreement is terminated in
accordance with its terms by the Company due to the material
breach of any representation, warranty, covenant or agreement on
the part of Parent or Sub set forth in the Merger Agreement; or
8.15.2 At any time after the earlier of (x) 5:00 p.m. Eastern
Time on the date which is five (5) business days after the date
of termination of the Merger Agreement for any reason not
specified in Section 8.15.1 above and (y) 5:00 p.m. Eastern Time
on March 7, 1997.
8.16 Obligation to Effect Merger. If the Closing occurs and
the Merger Agreement is terminated other than due to a breach of
any representation, warranty, covenant or agreement on the part
of the Company set forth in the Merger Agreement or the failure
to satisfy any of the conditions set forth in Article VIII or
Section 10.02 of the Merger Agreement, then Parent and Sub shall
use commercially reasonable efforts to effect the Merger at a
price per Share equal to the Merger Price as soon as reasonably
practicable.
8.17 Certification. Each Stockholder hereby agrees that its
Option Shares, whether now owned or hereafter acquired, shall be
certificated by the Company, and that the Company shall place the
following legend on any certificate representing its Option
Shares:
"Transfer and Voting of the Securities
represented by this Certificate are subject
to restrictions set forth in a Stockholders
Agreement dated October 31, 1996, a copy of
which may be obtained from the Company at its
principal executive offices."
8.18 Irrevocable Proxy. Each Stockholder acknowledges that,
concurrently with the execution of this Agreement, it has
executed and delivered to Parent an Irrevocable Proxy, the form
of which is attached hereto as Exhibit A hereto (the "Proxy").
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
FOOD LION, INC. KK ACQUISITION CORP. KASH N' XXXXX FOOD
STORES, INC.
By:/s/Xxx X.Xxxxx By:/s/ Xxx X. Xxxxx By:/s/Xxxxxx X. Xxxxxxx
Name:Xxx X.Xxxxx Name:Xxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
Title:President and Title: President Title: President
Chief Executive Officer
STOCKHOLDERS
BANKAMERICA CAPITAL CITICORP NORTH LANDMARK EQUITY
CORPORATION AMERICA, INC. PARTNERS III, L.P.
By:/s/Xxxxxx X. Xxxxxx,Xx By:/s/Xxxxxxx X.Xxxxxxx By:Landmark Partners,III,
Name:Xxxxxx X. Xxxxxx,Xx Name:Xxxxxxx X.Xxxxxxx L.P. Its General Partner
Title:Managing Director Title:Vice President By:Landmark Advisors, Inc.
Its Managing General
Partner
By:/s/Xxxxxxx X. Xxxxxxxx
Vice President
LANDMARK EQUITY PRUDENTIAL PROPERTY & PAINEWEBBER CAPITAL
PARTNERS IV, L.P. CASUALTY COMPANY INC.
By:Landmark Partners By:/s/Xxxxx Xxxxx By:/s/Dhananjay Tpai
IV, L.P. Name: Xxxxx Xxxxx Name: Dhananjay Tpai
Its General Partner Title: Managing Director Title: President
By: Landmark Advisors,Inc.
Its Managing General
Partner
By:/s/Xxxxxxx X Xxxxxxxx
Title:Vice President
UBS CAPITAL LLC HIGH YIELD PORTFOLIO IDS BOND FUND, INC.
By:/s/Xxxxxxx Xxxxxx By:/s/Xxxxx X. Xxxxxxxx By:/s/Xxxxx X. Xxxxxxxx
Name:Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title:Managing Director Title:Vice President - Title: Vice Presient-
Investments Investments
IDS LIFE INCOME THE PRUDENTIAL PRUCO LIFE INSURANCE
ADVANTAGE FUND INSURANCE COMPANY OF COMPANY
AMERICA
By:/s/Xxxxx X.Xxxxxxxx By:/s/Xxxxxx X. Xxxxx By: /s/Xxxxxx X. Xxxxx
Name:Xxxxx X.Xxxxxxxx Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title:Vice President- Title: Vice President Title: Assistant Vice
Investments President
XXXXX FARGO & COMPANY THE PRUDENTIAL INSURANCE PRUCO LIFE INSURANCE
COMPANY OF AMERICA COMPANY OF ARIZONA
By:/s/ Xxxx X. Xxxxx By: /s/ Xxxxx Xxxxx By: /s/Xxxxx Xxxxx
Name: Xxxx X. Xxxxx Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: Senior Vice Title: Managing Director Title: Managing Director
President and
Treasurer
SCHEDULE 1 TO
STOCKHOLDERS AGREEMENT
Name and Address
of Stockholder Number of Shares Owned
BankAmerica Capital 129,988
Corporation
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Citicorp North America, Inc. 145,076
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Landmark Equity Partners 174,091
III, L.P.
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
Landmark Equity Partners 9,285
IV, L.P.
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
The Prudential Insurance Company 585,904
of America
Two Gateway Center
Floor 7
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Prudential Property & Casualty Company 27,855
c/o The Prudential Insurance Company
of America
Two Gateway Center
Floor 7
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Pruco Life Insurance Company of Arizona 14,869
c/o The Prudential Insurance Company
of America
Two Gateway Center
Floor 7
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
PaineWebber Capital Inc. 533,601
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
UBS Capital LLC 145,076
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
High Yield Portfolio 822,430
c/o American Express Financial
Corporation
0000 XXX Xxxxx 00
Xxxxxxxxxxx, XX 00000-0000
IDS Bond Fund, Inc. 149,570
c/o American Express Financial
Corporation
0000 XXX Xxxxx 00
Xxxxxxxxxxx, XX 00000-0000
IDS Life Income Advantage Fund 20,000
c/o American Express Financial
Corporation
0000 XXX Xxxxx 00
Xxxxxxxxxxx, XX 00000-0000
The Prudential Insurance 220,515
Company of America
c/o Prudential Capital Group -
Corporates
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Pruco Life Insurance Company 11,606
c/o Prudential Capital Group -
Corporates
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx, Fargo & Company 145,076
MAC 0195-171
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
EXHIBIT A
to Stockholders Agreement
IRREVOCABLE PROXY
The undersigned stockholder of Kash n' Xxxxx Food Stores,
Inc., a Delaware corporation (the "Company"), hereby irrevocably
(to the fullest extent provided by law, but subject to automatic
termination and revocation as provided below) appoints KK
Acquisition Corp., a Delaware corporation (the "Sub"), the
attorney and proxy of the undersigned, with full power of
substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock
of the Company owned beneficially or of record by the
undersigned, which shares are listed on the final page of this
Proxy, and any and all other shares or securities of the Company
issued or issuable with respect thereof or otherwise acquired by
stockholder on or after the date hereof, until the termination
date specified in the Stockholders Agreement referred to below
(the "Shares"). Upon the execution hereof, all prior proxies
given by the undersigned with respect to the Shares are hereby
revoked and no subsequent proxies will be given as to the matters
covered hereby prior to the date of termination of the
Stockholders Agreement (the "Termination Date"). This proxy is
irrevocable (to the fullest extent provided by law, but subject
to automatic termination and revocation as provided below),
coupled with an interest, and is granted in connection with the
Stockholders Agreement, dated as of October 31, 1996, among the
Company, Food Lion, Inc., a North Carolina corporation
("Parent"), Sub and the Stockholders party thereto, including the
undersigned stockholder (the "Stockholders Agreement",
capitalized terms not otherwise defined herein being used herein
as therein defined), and is granted in consideration of the
Company entering into the Merger Agreement referred to therein.
The attorney and proxy named above will be empowered at any
time prior to the Termination Date to exercise all voting and
other rights with respect to the Shares (including, without
limitation, the power to execute and deliver written consents
with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of shareholders of the Company and
in every written consent in lieu of such a meeting, or otherwise:
(i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the approval of the terms
thereof and the Stockholders Agreement and each of the other
actions contemplated by the Merger Agreement and the Stockholders
Agreement and any actions required in furtherance thereof; (ii)
against any action, any failure to act, or agreement that would
result in a breach in any respect of any covenant, representation
or warranty or any other obligation or agreement of the Company
under the Merger Agreement or the Stockholders Agreement (before
giving effect to any materiality or similar qualifications
contained therein); and (iii) against the following actions
(other than the Merger and the transactions contemplated by the
Merger Agreement): (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination
involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its
Subsidiaries, or a reorganization, recapitalization, dissolution
or liquidation of the Company or its Subsidiaries; (C) (1) any
change in a majority of the persons who constitute the board of
directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or Bylaws; (3) any other material
change in the Company's corporate structure or business; or (4)
any other action involving the Company or its Subsidiaries which
is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect
the Merger and the transactions contemplated by this Agreement
and the Merger Agreement.
The attorney and proxy named above may only exercise this
proxy to vote the Shares subject hereto in accordance with the
preceding paragraph, and may not exercise this proxy in respect
of any other matter. The undersigned shareholder may vote the
Shares (or grant one or more proxies to vote the Shares) on all
other matters.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned.
This proxy is irrevocable, but shall automatically terminate
and be revoked and be of no further force and effect on and after
the Termination Date.
Dated: October 31, 1996 STOCKHOLDER
By:
Name:
Title:
Shares Owned:
