EXHIBIT 7.2
SHAREOWNER VOTING AGREEMENT
THIS SHAREOWNER VOTING AGREEMENT (this "Agreement") is made
and entered into as of the 14th day of October, 1999 by and
between THE MAY DEPARTMENT STORES COMPANY, a Delaware corporation
("May"), and ZCMI RESERVE TRUST, an irrevocable charitable trust
organized under the laws of the State of Utah ("ZRT") and a
holder of shares of Zions Co-operative Mercantile Institution, a
Utah corporation ("ZCMI"). May and ZRT are later in this
Agreement sometimes referred to individually as a "Party" or
collectively as the "Parties."
RECITALS
This Agreement is entered into with reference to the
following facts, objectives, and definitions:
A. Contemporaneously with the execution and delivery of
this Agreement, May, ZCMI, and MS Acquisition, Inc., a Utah
Corporation and a wholly-owned subsidiary of May ("Acquisition
Corp"), are entering into an Agreement and Plan of Merger, dated
as of the date of this Agreement (the "Merger Agreement"),
pursuant to which it is contemplated that ZCMI will merge (the
"Merger") with Acquisition Corp, upon the terms and conditions
set forth in the Merger Agreement; and
B. ZRT owns a majority of the issued and outstanding
shares of the $0.001 par value common stock of ZCMI (the "Common
Stock"), and desires to facilitate the consummation of the
Merger, and for such purpose ZRT has agreed (i) to vote all of
the shares of the Common Stock owned by ZRT on the date of this
Agreement as well as any other shares of the Common Stock it
might acquire after the date of this Agreement, (ii) to grant May
an irrevocable proxy to exercise the voting power of ZRT with
respect to the said shares, and (iii) to grant May an irrevocable
option to purchase the said shares, all as provided in this
Agreement.
NOW, THEREFORE, in consideration of this Agreement and of
the covenants and conditions contained in this Agreement, the
Parties represent, warrant, and agree as follows:
AGREEMENT
1. Representations and Warranties of ZRT. ZRT represents
and warrants that (i) it is the holder, free and clear of all
liens and encumbrances, of at least one million one hundred
thirty-four thousand five hundred and twenty-nine (1,134,529)
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shares of the Common Stock (the "Shares"); (ii) it does not
beneficially own (as such term is defined in the Securities
Exchange Act of 1934, as amended (the "1934 Act")) any shares of
the Common Stock other than the Shares; (iii) it has full power
and authority to make, enter into, and carry out the terms of
this Agreement; (iv) the execution, delivery, and performance of
this Agreement by ZRT will not violate any other agreement to
which ZRT is a party, including, without limitation, any voting
agreement, shareholder agreement, or voting trust; and (v) the
execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly
authorized by all requisite action on the part of ZRT or the
Trustees of ZRT, acting as trustees and not individually (the
"Trustees"), and when executed by the Trustees, will constitute a
legal, valid, and binding obligation of ZRT and the Trustees, in
their capacity as Trustees of ZRT, enforceable against ZRT and
the Trustees, in their capacity as Trustees of ZRT, in accordance
with its terms.
2. Grant of Irrevocable Proxy. ZRT hereby irrevocably
appoints May or any designee of May the lawful agent, attorney,
and proxy of ZRT, during the term of this Agreement, to (a) vote
the Shares in favor of the Merger, (b) vote the Shares against
any action or agreement that would result in a breach in any
material aspect of any covenant, representation, or warranty or
any other obligation or agreement of ZCMI under the Merger
Agreement; and (c) vote the Shares against any action or
agreement that would impede, interfere with, delay, postpone, or
attempt to discourage the Merger, including, but not limited to:
(i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving ZCMI, (ii)
a sale or transfer of a material amount of the assets of ZCMI or
a reorganization, recapitalization, or liquidation of ZCMI, (iii)
any change in the management or board of directors of ZCMI,
except as otherwise agreed to in writing by May, (iv) any change
in the present capitalization or dividend policy of ZCMI; or (v)
any other change in ZCMI s corporate structure. ZRT intends this
proxy to be irrevocable and coupled with an interest and will
take such further action or execute such other instruments as may
be necessary to effectuate the intent of this proxy and hereby
revokes any proxy previously granted by it with respect to the
Shares. ZRT shall not hereafter, unless and until this Agreement
terminates, purport to vote (or execute a consent with respect
to) any of the Shares (other than through this irrevocable proxy)
or grant any other proxy or power of attorney with respect to any
of the Shares, deposit any of the Shares into a voting trust or
enter into any agreement (other than this Agreement),
arrangement, or understanding with any person, directly or
indirectly, to vote, grant any proxy, or give instructions with
respect to the voting of any of the Shares. ZRT shall retain at
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all times the right to vote the Shares in ZRT s sole discretion
on all matters other than those set forth in this Paragraph 2
that are presented for a vote to the Shareholders of ZCMI
generally.
3. Agreement to Vote the Shares. In the event May is
unable to exercise the power and authority granted in Paragraph 2
for any reason, ZRT shall vote all of the Shares (i) in favor of
the Merger Agreement, as amended from time to time, and the
Merger or any transactions contemplated by the Merger Agreement
at any stockholders meetings of ZCMI held to consider the Merger
Agreement, (ii) against any other proposal for any
recapitalization, merger, sale of assets, or other business
combination between ZCMI and any person or entity other than May
or which would result in any of the conditions to May s
obligations under the Merger Agreement not being fulfilled, and
(iii) as otherwise necessary or appropriate to enable May to
consummate the transactions contemplated by the Merger Agreement.
4. Manner of Voting. The Shares may be voted pursuant to
this Agreement in person, by proxy, by written consent, or in any
other manner permitted by applicable law.
5. No Other Voting Agreements or Voting Trusts. ZRT
represents, warrants, and covenants that (i) it is not a party to
any voting agreement (other than this Agreement), voting trust,
or other agreement for voting control or other like agreement
involving any of the Shares and (ii) during the term of this
Agreement, it will not become a party to any such agreement or
trust.
6. No Proxy Solicitations. ZRT will not, nor will it
permit any entity under its control to, (i) solicit proxies or
become a "participant" in a "solicitation" (as such terms are
defined in Regulation 14A under the 0000 Xxx) in opposition to or
competition with the consummation of the Merger, (ii) directly or
indirectly solicit, encourage, initiate, or otherwise facilitate
any inquiries or the making of any proposal or offer with respect
to any, merger, consolidation, tender offer, exchange offer, sale
of a material portion of the assets and business of ZCMI (whether
in one or more transactions), sale of shares of the capital stock
or debt securities of ZCMI, restructuring, recapitalization, or
similar transaction involving ZCMI or any division or operating
principal business unit of ZCMI (whether in one or more
transactions) (an "Acquisition Proposal") or engage in any
negotiation concerning, or provide any confidential information
or data to, or have any discussions with any person relating to,
an Acquisition Proposal, (iii) become a member of a "group" (as
such term is used in Section 13(d) of the 0000 Xxx) with respect
to any voting securities of ZCMI for the purpose of opposing or
competing with the consummation of the Merger, or (iv) take any
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action that would prevent, burden, or materially delay the
consummation of the transactions contemplated by this Agreement
or by the Merger Agreement. ZRT shall immediately cease and cause
to be terminated any activities, discussions, or negotiations
with respect to any of the foregoing.
7. Transfer and Encumbrance. ZRT shall not transfer,
sell, offer, pledge, or otherwise dispose of or encumber any of
the Shares during the period commencing on date of this Agreement
and ending on the earlier of (i) the effective date of the Merger
or (ii) the date this Agreement is terminated in accordance with
its terms.
8. Additional Purchases. During the period commencing on
the date of this Agreement and ending on the earlier of (i) the
effective date of the Merger or (ii) the date this Agreement is
terminated in accordance with its terms, ZRT shall not
(a) purchase or otherwise acquire beneficial ownership of any
shares of the Common Stock ("New Shares") other than by
charitable donation to the Church of Xxxxx Xxxxxx of Latter-day
Saints, or (b) voluntarily acquire the right to vote or share in
the voting of any shares of the Common Stock other than the
Shares. Any New Shares acquired or purchased by ZRT shall be
subject to the terms of this Agreement and for all purposes shall
be and constitute a portion of the Shares.
9. Adjustments to Prevent Dilution. In the event of a
stock dividend or distribution, or any change in the Common Stock
by reason of any stock dividend, split-up, recapitalization,
combination, or the exchange of shares, the term "Shares" shall
be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
10. Option to Purchase Shares.
x. Xxxxx of Option. ZRT hereby irrevocably grants to
May an option (the "Option") to purchase all of the Shares
at the purchase price per share and for the form of
consideration set forth in the Merger Agreement (the
"Exercise Price") (subject to adjustment pursuant to
Paragraph 9 above) for each of the Shares purchased.
b. Exercise of Option.
i. The Option may be exercised by May, in whole
and not in part, at any time, or from time to time,
from the date of this Agreement and prior to January
31, 2000, and thereafter as long as the Merger
Agreement remains in existence, but in no event later
than December 31, 2000.
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ii. To exercise the Option, May shall send a
written notice to ZRT of its exercise of the Option
(the "Notice"), specifying the place, time, and date of
the closing of such purchase (the "Closing"), which
date shall not be less than two business days nor more
than five business days from the effective date of the
Notice.
iii. At the Closing, ZRT shall deliver to May all
of the ZRT Shares by delivery of a certificate or
certificates evidencing the ZRT Shares duly endorsed or
with executed blank stock power attached, in either
event with signature guaranteed such that ownership of
the ZRT Shares may be registered for transfer on the
books of ZCMI. On the date of closing of the Merger,
May will pay ZRT the Exercise Price multiplied by the
number of the ZRT Shares.
11. Use of ZCMI Name and Closing of Downtown Salt Lake City
ZCMI Store. May acknowledges that compliance by ZRT with the
terms and conditions of this Agreement in general and, in
particular, ZRT s agreement (i) to grant to May the irrevocable
proxy contemplated by Paragraph 2 and the Option, as set forth in
Paragraph 10, and (ii) to vote the Shares as provided in
Paragraph 3 is conditioned upon and is in consideration of the
agreements, representations, and warranties of May set forth
below in this Paragraph 11. After the closing of the Merger:
i. May shall select a date (the "Termination Date")
that is within two (2) years of the effective date of the
Merger;
ii. on or before the Termination Date, as may be
permissible under Utah law, May shall change the corporate
name of ZCMI to a name that does not include any of the
following words: "Zions", "Co-operative", "Mercantile" or
"ZCMI";
iii. until the Termination Date, May or any of its
subsidiaries may use exterior signs with the name "ZCMI" on
the stores operated by ZCMI in connection with the operation
of the business conducted by ZCMI (the "ZCMI Business");
iv. as soon as practicable after the effective date of
the Merger consistent with good business practices, May or
its subsidiaries shall, and until the Termination Date May
or its subsidiaries may, use a combined name of "ZCMI" and
a trade name used by May in the internal operation of a
department store (the "New Name"), in connection with the
ZCMI Business, and
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v. until the Termination Date, May or its
subsidiaries may not open any of the stores operated by ZCMI
on any Sunday,
vi. after the Termination Date:
(1) May may, and may permit its subsidiaries to,
open any of the stores operated by ZCMI, other than the
ZCMI store located on South Main Street in Salt Lake
City, Utah (the "Salt Lake City Downtown Store") on any
Sunday; and
(2) May will not, and will not permit any of its
subsidiaries to, open the Salt Lake City Downtown Store
on any Sunday for so long as the Church of Xxxxx Xxxxxx
of Latter-day Saints or any of its affiliates
(collectively, the "Church") is the landlord with
respect to the Salt Lake City Downtown Store or unless
the Church permits other stores in the shopping mall or
center of which the Salt Lake Downtown Store is a part
("ZCMI Center Mall") to open on Sundays and will not
vote for and will vote against any attempt by other
stores in the ZCMI Center Mall to be open on Sundays;
and
(3) forthwith after the Termination Date, May
will, and will cause its subsidiaries to, convey and
transfer all right, title, and interest that May or any
of its subsidiaries may have in or to the "ZCMI"
trademark or trade name (collectively, the "ZCMI Name")
to ZRT on the condition that ZRT:
(a) not thereafter use the ZCMI Name for or
in connection with any business activity;
provided, however, that to the extent that either
May or ZRT can affect the name of the shopping
mall or center of which the Salt Lake Downtown
Store is a part, both May and ZRT will act to
maintain the name of the mall as "ZCMI Center
Mall";
(b) not thereafter license or otherwise
authorize any other person or entity to use the
ZCMI Name for or in connection with any business
activity;
(c) take all actions necessary to enforce
its intellectual property rights in the ZCMI Name;
and
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(d) not sell, transfer, assign or otherwise
convey the ZCMI Name or any rights to use the ZCMI
Name to any other person or entity unless that
person agrees to these conditions as fully as if
that person or entity were ZRT.
Provided, however, that nothing in this Paragraph 11
shall require that May or ZCMI alter, change, or at any time
discontinue the use of the trademark "ZCMI" as it is on the
date of this Agreement being used on the front of the facade
on the west entrance to the ZCMI store located on the Salt
Lake City Downtown Store, which shall not be considered a
use by May.
12. No Third-Party Beneficiary Rights. No provision of
this Agreement is intended to nor shall it be interpreted to
provide or create any third-party beneficiary rights or any other
rights of any kind in any person or entity who is not a Party and
all provisions of this Agreement are personal to and solely
between the Parties.
13. Further Assurances. Each Party shall do and perform or
cause to be done and performed all such further acts and things
and shall execute and deliver all such other agreements,
certificates, instruments, or documents as any other Party shall
reasonably request from time to time in order to carry out the
intent and purposes of this Agreement. No Party shall voluntarily
undertake any course of action inconsistent with satisfaction of
the requirements applicable to such Party as set forth in this
Agreement, and each Party shall promptly do all acts and take all
measures as may be appropriate or necessary to enable such Party
to perform, as early as practicable, the obligations required to
be performed by such Party under this Agreement.
14. Injunctive Relief. The Parties intend and agree that
the provisions of this Agreement are for the benefit of May and
shall be specifically enforceable as contemplated by Section 16-
10a-731 of the Utah Revised Business Corporation Act. The Parties
acknowledge that it is impossible to measure in money the damages
that will accrue to one or more of them by reason of the failure
of either of them to abide by the provisions of this Agreement,
that every such provision is material, and that in the event of
any such failure, the other Party will not have an adequate
remedy at law or damages. Therefore, if any Party shall institute
any action or proceeding to enforce the provisions of this
Agreement, in addition to any other relief, the court in such
action or proceeding may grant injunctive relief against any
Party found to be in breach or violation of this Agreement, as
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well as or in addition to any remedies at law or damages, and
such Party waives the claim or defense in any such action or
proceeding that the Party bringing such action has an adequate
remedy at law, and such Party shall not argue or assert in any
such action or proceeding the claim or defense that such remedy
at law exists. No Party shall seek and each Party shall waive any
requirement for, the securing or posting of a bond in connection
with the other Party seeking or obtaining such equitable relief.
15. Court Modification. Should any portion of this
Agreement be declared by a court of competent jurisdiction to be
unreasonable, unenforceable, or void for any reason or reasons,
the involved court shall modify the applicable provision(s) of
this Agreement so as to be reasonable or as is otherwise
necessary to make this Agreement enforceable and valid and to
protect the interests of the Parties intended to be protected by
this Agreement to the maximum extent possible.
16. Facsimile Transmission and Counterparts. This
Agreement may be executed by facsimile transmission and in one or
more counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one
and the same Agreement.
17. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall
be delivered (i) personally, (ii) by first class mail, certified,
return receipt requested, postage prepaid, (iii) by overnight
courier, with one acknowledged receipt, or (iv) by facsimile
transmission followed by delivery by first class mail or by
overnight courier, in the manner provided for in this Paragraph
17 and properly addressed as follows:
If to May to:
The May Department Stores Company
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: R. Xxxx Xxxxx
with a copy to:
The May Department Stores Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
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If to ZRT:
ZCMI Reserve Trust
50 East South Temple
COB 2WW
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
X. Xxxxxx Xxxxx, Esq.
Xxxxxx & XxXxxxxx
00 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as a Party to this
Agreement may indicate to the other Party in the manner provided
for in this Paragraph 17. Notices, etc. given by mail and
notices, etc. given by overnight courier shall be deemed
effective and complete upon delivery; notices by facsimile
transmission shall be deemed effective upon receipt, unless
receipt thereof shall be disputed in which case receipt shall be
deemed effective as of the effective date of the follow-up notice
called for by this Paragraph 17 with respect to such facsimile
transmitted notice; and notices, etc. delivered personally shall
be deemed effective and complete at the time of the delivery of
the notice and the obtaining of a signed receipt for the notice,
unless a Party shall refuse to provide a signed receipt, in which
case the notice shall be effective upon the completion of
personal delivery of the notice in such a way as to insure the
ability to evidence such personal delivery.
18. Other Agreements.
This Agreement supersedes all prior agreements or
understandings of the Parties on the subject matter of this
Agreement. There are no representations, warranties, or
agreements, whether express or implied, or oral or written, with
respect to the subject matter of this Agreement, except as set
forth in this Agreement. This Agreement (i) shall not be modified
by any oral agreement, either express or implied, and all
amendments or modifications of this Agreement shall be in writing
and be signed by all of the Parties, and (ii) shall be binding on
and shall inure to the benefit of the Parties and their
respective heirs, legal representatives, successors, and
permitted assigns, if any.
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None of the rights, duties, or obligations under this
Agreement of any Party may be assigned, delegated, or transferred
expressly, by operation of law, merger, or otherwise, without the
prior written consent of the other Party.
The paragraph headings in this Agreement are for the purpose
of convenience only and shall not limit or otherwise affect any
of the terms of this Agreement.
Should any Party be in default under or breach of any of the
covenants or agreements contained in this Agreement, or in the
event a dispute shall arise as to the meaning of any term of this
Agreement, the defaulting or nonprevailing Party shall pay all
costs and expenses, including reasonable attorneys fees, of the
other Party that may arise or accrue from enforcing this
Agreement, securing an interpretation of any provision of this
Agreement, or in pursuing any remedy provided by law whether such
remedy is pursued or interpretation is sought by the filing of a
lawsuit, an appeal, or otherwise.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Utah, which
internal laws exclude any provision or interpretation of such
laws that would call for, or permit, the application of the laws
of any other state or jurisdiction, and any dispute arising
therefrom and the remedies available shall be determined solely
in accordance with such internal laws.
This Agreement and any Proxy granted pursuant to this
Agreement shall terminate upon the first to occur of the
following events:
i. the successful consummation of the Merger;
ii. the written agreement of all of the Parties to
terminate this Agreement; or
iii. the termination of the Merger Agreement.
Where the context requires, the singular shall include the
plural, the plural shall include the singular, and any gender
shall include all other genders.
Recitals A and B are by this reference incorporated into and
made a part of this Agreement.
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IN WITNESS WHEREOF, each of the Parties has executed this
Agreement on or as of the date of this Agreement.
THE MAY DEPARTMENT STORES COMPANY,
a Delaware Corporation
By: /s/ R. Xxxx Xxxxx
R. Xxxx Xxxxx, Executive Vice President
ZCMI RESERVE TRUST, an irrevocable
charitable trust
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, not individually but as
Trustee
By: /s/ L. Xxx Xxxxx
L. Xxx Xxxxx, not individually but as Trustee
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, not individually but as
Trustee
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