EXHIBIT 2
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of August 17, 1999,
is entered into by and among Food Lion, Inc., a North Carolina corporation
(the "Parent"), and the other parties listed on the signature page hereof
or their respective assigns (the "Stockholders").
RECITALS:
A. The Parent, FL Acquisition Sub, Inc., a Maine corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and Hannaford Brothers
Co., a Maine corporation (the "Company"), have entered into an Agreement
and Plan of Merger of even date herewith (the "Merger Agreement"), pursuant
to which the parties thereto have agreed, upon the terms and subject to the
conditions set forth therein, to merge the Merger Sub with and into the
Company Sub (the "Merger").
B. As of the date hereof, each Stockholder is the owner of the
number of shares of Company Common Stock (the "Shares") set forth opposite
such Stockholder's name on Schedule 1 attached hereto.
C. As of the date hereof, the stockholders and the Company have
entered into a Stock Exchange Agreement with respect to the Shares.
D. In consideration of the Parent's agreement to enter into the
Merger Agreement, each of the Stockholders agrees to vote in favor of the
Merger the Shares.
E. Capitalized terms used but not otherwise defined herein and
defined in the Merger Agreement shall have the meanings given such terms in
the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parent and
the Stockholders, intending to be legally bound, hereby agree as follows:
8. Voting of Shares.
8.1 Voting Agreement.
Each Stockholder hereby agrees to vote (or cause to be
voted) the Shares, at any annual, special or other meeting of the
stockholders of the Company, and at any adjournment or adjournments
thereof, or pursuant to any consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the approval and adoption of
the terms contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(ii) against any action or agreement that is reasonably
likely to result in a breach in any material respect of any covenant,
representation or warranty or any other obligation of the Parent under this
Agreement or the Merger Agreement; and
(iii) except for all such actions which may be permitted
to the Company under Section 5.01 of the Merger Agreement, against (a) any
extraordinary corporate transaction, such as a merger, rights offering,
reorganization, recapitalization or liquidation involving the Company or
any of its subsidiaries other than the Merger, (b) a sale or transfer of a
material amount of assets of the Company or any of its material
subsidiaries or the issuance of any securities of the Company or any
subsidiary, (c) any change in the Board of Directors of the Company other
than in connection with an annual meeting of the shareholders of the
Company with respect to the slate of directors proposed by the incumbent
Board of Directors of the Company (in which case they agree to vote for
the slate proposed by the incumbent Board) or (d) any action that is
reasonably likely to materially impede, interfere with, delay, postpone or
adversely affect in any material respect the Merger and the transactions
contemplated by the Merger Agreement.
9. Representations and Warranties of Stockholders. Each Stockholder
represents and warrants to the Parent as follows in each case as of the
date hereof:
9.1 Binding Agreement. Each Stockholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. Each Stockholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding
obligation of each Stockholder, enforceable against the Stockholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
9.2 No Conflict. Neither the execution and delivery of this
Agreement, nor the compliance with any of the provisions hereof, in each
case by each Stockholder will (i) require any consent, approval,
authorization or permit of, registration, declaration or filing with, or
notification to, any Governmental Authority, except for filings on Schedule
13D under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (ii) result in a default (or an event which, with notice or lapse of
time or both, would become a default) or give rise to any right of
termination by any third party, cancellation, amendment or acceleration
under any contract or understanding, or result in the creation of a Lien
with respect to any of the Shares, (iii) require any material consent,
authorization or approval of any Person or Governmental Authority which has
not been obtained, or (iv) violate or conflict with any order or law
applicable to such Stockholder or the Shares.
9.3 Ownership of Shares. Each Stockholder is the record and
beneficial owner of such Stockholder's Shares free and clear of any Liens
on the right to vote such Shares. Each Stockholder holds exclusive power
to vote such Stockholder's Shares, subject to the limitations set forth in
Section 1 of this Agreement. The number of Shares set forth opposite each
Stockholder's name on Schedule 1 represents all of the shares of capital
stock of the Company beneficially owned by each Stockholder.
9.4 Absence of Certain Agreements. None of the Stockholders nor any
of their representatives has entered into any agreement, letter of intent
or similar agreement (whether written or oral) with any party other than
the Parent whereby such Stockholder has agreed to support, directly or
indirectly, any proposal or offer (whether or not in writing and whether or
not delivered to the stockholders of the Company generally) for a merger or
other business combination involving the Company or to acquire in any
matter, directly or indirectly, a material equity interest in, any voting
securities of, or a substantial portion of the assets of the Company, other
than the transactions contemplated by the Merger Agreement.
10. Representations and Warranties of the Parent. The Parent represents
and warrants to each Stockholder as follows, in each case as of the date
hereof:
10.1 Binding Agreement. The Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of North Carolina and has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
Merger Agreement by the Parent and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by
the Board of Directors of the Parent, and no other corporate proceedings on
the part of the Parent are necessary to authorize the execution, delivery
and performance of this Agreement and the Merger Agreement by the Parent
and the consummation of the transactions contemplated hereby and thereby.
The Parent has duly and validly executed this Agreement and this Agreement
constitutes a legal, valid and binding obligation of the Parent,
enforceable against the Parent in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally
and by general equitable principles (regardless of whether enforceability
is considered in a proceeding in equity or at law).
10.2 No Conflict. Neither the execution and delivery of this
Agreement, the consummation by the Parent of the transactions contemplated
hereby, nor the compliance by the Parent with any of the provisions hereof
will (i) conflict with or result in a breach of any provision of its
Articles of Incorporation or Bylaws, (ii) require any consent, approval,
authorization or permit of, registration, declaration or filing with, or
notification to, any Governmental Authority, (iii) result in a default (or
an event which, with notice or lapse of time or both, would become a
default) or give rise to any right of termination by any third party,
cancellation, amendment or acceleration under any contract or
understanding, (iv) require any material consent, authorization or approval
of any Person or Governmental Authority which has not been obtained, or (v)
violate or conflict with any order or law applicable to the Company.
11. Transfer and Other Restrictions. For so long as the Merger Agreement
is in effect:
11.1 Certain Prohibited Transfers. Except for the Stock Exchange
Agreement between the parties hereto entered into as of the date hereof,
each Stockholder agrees not to:
(i) sell, transfer, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, assignment or other disposition of, such
Stockholder's Shares or any interest contained therein, other than sales,
transfers, assignments or other dispositions by a Stockholder to a direct
or indirect wholly-owned subsidiary of either Stockholder;
(ii) except as contemplated by this Agreement, grant any
proxy or power of attorney or enter into a voting agreement or other
arrangement with respect to such Stockholder's Shares, other than this
Agreement; or
(iii) except as provided in the Xxxxxxxxx-Xxxxx Voting
Trust Agreement, dated as of February 4, 1988, as amended, deposit such
Stockholder's Shares into a voting trust.
11.2 Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of
capital stock of the Company on, of or affecting the Shares or (ii) any
Stockholder shall become the beneficial owner of any additional shares of
Company Common Stock or other securities entitling the holder thereof to
vote or give consent with respect to the matters set forth in Section 1
hereof, then the terms of this Agreement shall apply to the shares of
capital stock or other securities of the Company held by any Stockholder
immediately following the effectiveness of the events described in clause
(i) or the Stockholder becoming the beneficial owner thereof, as described
in clause (ii), as though they were Shares hereunder. Each Stockholder
hereby agrees, while this Agreement is in effect, to promptly notify the
Parent of the number of any new shares of Company Common Stock acquired by
the Stockholder, if any, after the date hereof.
12. Specific Enforcement. Each of the parties hereto acknowledges and
agrees that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with the
terms hereof or were otherwise breached and that each party shall be
entitled to seek specific performance of the terms hereof, in addition to
any other remedy that may be available at law or in equity.
13. Termination. This Agreement shall terminate on the earlier of (i) the
termination of the Merger Agreement, (ii) the agreement of the parties
hereto to terminate this Agreement, (iii) consummation of the Merger and
(iv) the date such Stockholder ceases to own any Shares.
14. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including telecopy or similar writing) and
shall be given:
If to the Parent, to:
Food Lion, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: R. Xxxxxxx XxXxxxxxx
Facsimile No.: (000) 000-0000
With a copy to (such copy shall not constitute notice):
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.
Facsimile No.: (000) 000-0000
If to the Stockholders, to:
Empire Company Limited
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxx X0X 0X0
Attention: President
Facsimile No.: (000) 000-0000
With a copy to (such copy shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Xxxxxxx XxXxxxxx Stirling Scales
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000, P.O. Box 997
Halifax, NS Canada
B3J 2X2
Attn: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
or such other address or telecopy number as such party may hereafter
specify for the purpose by notice to the other parties hereto. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section 7 and the appropriate telecopy confirmation is
received or (ii) if given by any other means, when delivered at the address
specified in this Section 7.
15. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
16. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by the Parent.
17. Amendment. 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.
18. Successors and Assigns. Except as provided in Section 4.1 hereof,
this Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties hereto. This
Agreement will be binding upon, inure to the benefit of and be enforceable
by each party and such party's respective heirs, beneficiaries, executors,
representatives and permitted assigns.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
20. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Maine without giving effect to the provisions thereof relating to conflicts
of law.
21. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to
be unenforceable such provision shall be interpreted to be only so broad as
is enforceable.
22. Headings. 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.
23. Stockholder Capacity. No Stockholder or designee of any Stockholder
who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity
as such director or officer. Each Stockholder signs solely in such
Stockholder's capacity as the record holder and beneficial owner of such
Stockholder's Shares and nothing herein shall limit or affect any actions
taken by a Stockholder or any designee of any Stockholder in his or her
capacity as an officer or director of the Company.
24. Further Assurances. Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
25. Third Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties
hereto any legal or equitable right, remedy or claim under by reason of
this Agreement or any provision contained herein.
[The next page is the signature page.]
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have executed this Agreement
effective as of the date first set forth above.
FOOD LION, INC.
By:_______________________________________
Name: ____________________________________
Title:____________________________________
EMPIRE COMPANY LIMITED
By:_______________________________________
Name:_____________________________________
Title:____________________________________
E.C.L. INVESTMENTS LIMITED
By:______________________________________
Name:____________________________________
Title:___________________________________
SCHEDULE 1
STOCKHOLDINGS
Name of Stockholder Number of Shares
------------------- ----------------
Empire Company Limited 5,550,461
E.C.L. Investment Limited
Empire Company Limited 4,868,104
