Exhibit 99.9
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of May 7, 2001 (the "Agreement"),
by and between each of the persons and entities listed on the signature pages
hereto as "Sellers" (each, a "Seller" and collectively, the "Sellers"), on the
one hand, and Xxxx Markets, Inc., a Pennsylvania corporation (the "Company"), on
the other hand.
This Agreement sets forth the terms and conditions upon which the
Sellers will sell to the Company, and the Company will purchase from the
Sellers, an aggregate of 14,477,242 shares of the common stock, no par value, of
the Company (the "Shares") owned by the Sellers.
In consideration of the mutual agreements contained herein, the
parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions
of this Agreement, and in reliance on the representations, warranties and
covenants contained herein, each Seller hereby agrees to sell to the Company,
and the Company hereby agrees to purchase from each such Seller, for a purchase
price equal to $30.00 per Share (the "Purchase Price"), the number of Shares
owned by such Seller set forth in the column entitled "Sale Shares" opposite
such Seller's name on Schedule A hereto (the "Sale Shares"), free and clear of
all liens, claims, options, proxies, voting agreements, charges and encumbrances
of whatever nature (collectively, "Liens").
2. Deliveries; Payment. On the date hereof, (a) each Seller shall
deliver to the Company by book entry transfer through The Depository Trust
Company to an account previously designated by the Company, or by physical
delivery of share certificates (endorsed to the Company or endorsed in blank),
the number of Sale Shares set forth opposite such Seller's name on Schedule A
hereto, together with any documents that, in the reasonable judgment of the
Company, are necessary to transfer and convey to, and vest in, the Company good
title to the Sale Shares, and (b) the Company shall deliver to each Seller the
Purchase Price for the Sale Shares delivered pursuant to clause (a) above by a
wire transfer of immediately available funds to a bank account previously
designated to the Company by such Seller.
3. Sellers' Representations and Warranties. Each Seller severally
represents and warrants to the Company as follows:
(a) Such Seller has the power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement;
(b) This Agreement has been duly and validly authorized,
executed and delivered by such Seller and constitutes a legal, valid and binding
obligation of such Seller, enforceable in accordance with its terms;
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(c) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (i) in the case
of any Seller that is not a natural person, violate or conflict with any
provision of the charter or organizational documents or by-laws or comparable
documents of such Seller, (ii) result in the imposition of any Lien under, cause
or permit the acceleration of any obligation under, or violate or conflict with
the terms, conditions or provisions of, any note, indenture, security agreement,
lease, guaranty, joint venture agreement, or other contract, agreement or
instrument to which such Seller is a party or by which such Seller or any of its
Sale Shares is bound, or (iii) result in a breach or violation by such Seller of
any law, rule or regulation or any order, injunction, judgment or decree of any
court, governmental authority or regulatory agency;
(d) Such Seller has, and will transfer and convey to the
Company, good title to the number of Sale Shares set forth opposite such
Seller's name on Schedule A hereto, and such Sale Shares are, and will be
transferred and conveyed to the Company, free and clear of all Liens; and
(e) There exists no restriction upon the sale and delivery to
the Company of the Sale Shares by such Seller, nor is such Seller required to
obtain the approval of any person or entity or any court, governmental authority
or regulatory agency to effect the sale of such Shares in accordance with the
terms hereof.
(f) The engagement of Xxxxxxx Xxxxx Barney by certain of the
Sellers to render financial services and advice in connection with such Sellers'
ownership of Shares has been terminated prior to the date hereof, all amounts
payable to Xxxxxxx Xxxxx Xxxxxx pursuant to such engagement have previously been
paid and no further amounts shall become payable pursuant thereto by reason of
this Agreement or the transactions contemplated thereby.
4. The Company's Representations and Warranties. The Company
represents and warrants to the Sellers as follows:
(a) The Company is a corporation incorporated and presently
subsisting under the laws of the Commonwealth of Pennsylvania;
(b) The Company has the power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms; and
(d) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (i) violate or
conflict with any provision of the articles of incorporation or by-laws of the
Company or of any
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subsidiary thereof, (ii) result in the imposition of any Lien under, cause or
permit the acceleration of any obligation under, or violate or conflict with the
provisions of, any note, indenture, security agreement, lease, guaranty, joint
venture agreement or other contract, agreement or instrument to which the
Company or any subsidiary thereof is a party or by which the Company or any
subsidiary thereof or any of its respective assets is bound, or (iii) result in
a breach or violation by the Company or any subsidiary thereof of any law, rule
or regulation or any order, injunction, judgment or decree of any court,
governmental authority or regulatory agency.
(e) The Company has not entered into any agreement, and is not
currently engaged in any discussions, relating to the sale of the Company
(whether by merger, sale of assets, sale of stock or otherwise).
5. Expenses. All fees and expenses incurred by any of the parties
hereto shall be borne by the party incurring such fees and expenses, subject to
Section 7(h), and all sales, transfer or other similar taxes payable in
connection with this Agreement (including, but not limited to, any transfer
taxes payable in connection with the sale of the Shares), will be borne by the
party incurring such taxes.
6. Brokerage. Each the Company and each Seller represents and
warrants to the others that there are no claims for brokerage commissions or
finder's fees or agent's commissions or other like payment in connection with
this Agreement or the transactions contemplated hereby, except that the Company
has engaged Xxxxxx Xxxxxxx (the "Company Advisor") to render financial advisory
services in connection with the transactions contemplated hereby and the Company
is solely responsible for all amounts due to the Company Advisor as a result
thereof. The Company and the Sellers (as a group) will pay or discharge and will
indemnify and hold the other harmless from and against any and all claims or
liabilities for brokerage commissions, finder's fees or similar fees incurred by
reason of any action taken by it.
7. Miscellaneous.
(a) This Agreement constitutes the entire Agreement and
supersedes all prior agreements and understandings, whether oral or written,
among the parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but may only be amended by an instrument in
writing signed by each ofthe parties hereto.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their directors, officers, heirs, legal
representatives, successors and assigns. No party hereto may assign its
obligations hereunder (except by operation of law). Except as otherwise provided
in Section 7(h), nothing contained in this Agreement shall be deemed to give
rise to any right in a person not a party hereto or in the Sellers or the
Company on behalf of any such person to seek enforcement of, or damages arising
out of any alleged default with respect to, any provisions of this Agreement.
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(c) All representations, warranties and covenants contained
herein shall survive the execution and delivery of this Agreement and the
delivery of the Sale Shares.
(d) This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an original
and all of which shall be deemed to be one and the same instrument.
(e) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without reference to the conflict of laws principles thereof.
(f) All notices and other communications under this Agreement
shall be in writing and delivery thereof shall be deemed to have been made
either (x) one business day after such notice shall have been deposited with a
nationally-recognized overnight courier service, or (y) when delivered by hand
or transmitted by facsimile transmission, to the party entitled to receive the
same at the address or facsimile number indicated below or at such other address
or facsimile number as such party shall have specified by written notice to the
other parties hereto given in accordance herewith:
(i) if to any Seller, addressed to:
[name of Seller]
c/o Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
with a copy to:
Wachtell Lipton Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to the Company, addressed to:
Xxxx Markets, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq., General Counsel
Facsimile: (000) 000-0000
with a copy to:
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Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(g) Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(h) The Company agrees to indemnify, to the fullest extent
permitted by law, each Seller, its directors, trustees, partners, members,
officers and each person who "controls" the Seller within the meaning of the
Securities Exchange Act of 1934, as amended (collectively, the "Indemnified
Parties"), against any and all losses, claims, damages, liabilities and expenses
(collectively, "Losses") incurred by such Indemnified Party as a result of any
action, proceeding or claim (each, a "Claim") relating to or arising out of this
Agreement or any of the transactions contemplated hereby, except that the
indemnity contemplated hereby shall not apply to (i) any Claim brought by any
Indemnified Party against the Company or any other Indemnified Party (other than
to enforce the rights of the Indemnified Parties under this Section 7(h)), or
(ii) to any Claim brought in good faith by the Company for breach of this
Agreement by an Indemnified Party. The Company will promptly reimburse any
Indemnified Party for any legal or other out-of-pocket expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any action, suit or proceeding for which indemnity is available pursuant to this
provision. The provision of this indemnity shall inure to the benefit of, and
shall be enforceable by, the Indemnified Parties. The Company shall have the
right to assume the defense of any Claim contemplated hereby and, upon and
during the period of such assumption, the Company shall not be liable to any
Indemnified Party for any legal expenses of other counsel or any other expenses
subsequently incurred by an Indemnified Party in connection with the defense
thereof, except that if the Company elects not to assume such defense, or
counsel for the Indemnified Parties reasonably advises the Indemnified Parties
that there is an actual or potential conflict of interest between the Company
and the Indemnified Parties, the Indemnified Parties may retain counsel
reasonably satisfactory to the Company, and the Company shall pay the fees and
expenses of such counsel for the Indemnified Parties in accordance with the
immediately preceding sentence. If the Company settles or compromises any
litigation or other proceeding relating to a Claim, such settlement or
compromise will in no way limit or otherwise affect the Company's obligation to
indemnify the Indemnified Parties under this Section 7(h).
(i) The initial press release of the Company concerning the
execution and delivery of this Agreement and the transactions contemplated
thereby shall be in the form set forth on Schedule B hereto.
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(j) Each of the Sellers and the Company hereby irrevocably
consents that any legal action or proceeding against it or any of its assets
with respect to any of the obligations arising under or relating to this
Agreement may be brought by the Company or by any Seller in any state or federal
court sitting in the Commonwealth of Pennsylvania, and by execution and delivery
of this Agreement the Company and each of the Sellers hereby irrevocably submits
to and accepts with regard to any such action or proceeding, for itself and in
respect of its property, the jurisdiction of the aforesaid courts.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each
of the undersigned parties has executed or caused this Agreement to be executed
on the date first above written.
XXXX MARKETS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
SELLERS:
WEIS FAMILY HOLDINGS, L.P.
By: Weis Family Holdings, LLC,
its general partner
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Manager
XXXXXXXX XXXX TRUSTEE FOR THE XXXXX X. XXXX
GRANTOR RETAINED ANNUITY TRUST #4
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxxxxx, Trustee
----------------------------------------
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Trustee
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XXXXX XXXX XXXXXXXXX, XXXXX XXXX XXXXXX AND
XXXXX XXXX XXXXXX, TRUSTEES OF THE XXXXX X.
XXXX 1997 CHARITABLE LEAD UNITRUST
By: /s/ Xxxxx Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
XXXXX XXXX XXXXXXXXX, XXXXX XXXX XXXXXX AND
XXXXX XXXXXX, TRUSTEES OF THE XXXXX X. XXXX
1997 CHARITABLE REMAINDER
By: /s/ Xxxxx Xxxx Xxxxxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
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/s/ Xxxxx Xxxx Xxxxxx
-------------------------------------
Xxxxx Xxxx Xxxxxx
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxx Xxxxxx
------------------------------------
Xxxxx Xxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx Xxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X Xxxxxxxxx /s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx & Xxxxx Xxxxxxxxx,
Joint Tenants
THE XXXXX XXXX XXXXXX 1998 TRUST
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
10
THE XXXXX XXXX XXXXXX 1998 TRUST
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxx, Trustee
-------------------------------
Name: Xxxxx Xxxx Xxxxxx
Title: Trustee
/s/ Xxxxxxx Xxx Xxxxxx
------------------------------------
Xxxxxxx Xxx Xxxxxx
/s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx
THE XXXXX XXX XXXXXXXXX 1999 TRUST
By: /s/ Xxxxx Xxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxx Xxxxxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Trustee
11
THE XXXX XXXX XXXXXXXXX 1999 TRUST
By: /s/ Xxxx Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Trustee
By: /s/ Xxxxx Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Trustee
XXXXXX X. XXXX IRREVOCABLE DEED OF TRUST FBO
XXXXX XXXX XXXXXXXXX, XXXXX XXXX XXXXXXXXX,
XXXXXXX X. XXXXXXXXX AND MELLON BANK, N.A.,
TRUSTEES
/s/ Xxxxx Xxxx Xxxxxxxxx, Trustee
------------------------------------
By: Xxxxx Xxxx Xxxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxxxx, Trustee
XXXXXX X. XXXX IRREVOCABLE DEED OF TRUST FBO
XXXXX XXXX XXXXXX, XXXXX XXXX XXXXXX,
XXXXXXX X. XXXXXXXXX AND XXXXXX BANK, N.A.,
TRUSTEES
/s/ Xxxxx Xxxx Xxxxxx, Trustee
------------------------------------
By: Xxxxx Xxxx Xxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxxxx, Trustee
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XXXXXX X. XXXX IRREVOCABLE DEED OF TRUST FBO
XXXXX XXXX XXXXXX, XXXXX XXXX XXXXXX,
XXXXXXX X. XXXXXXXXX AND XXXXXX BANK, N.A.,
TRUSTEES
/s/ Xxxxx Xxxx Xxxxxx, Trustee
------------------------------------
By: Xxxxx Xxxx Xxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxxxx, Trustee
XXXXXX X. XXXX IRREVOCABLE DEED OF TRUST -
INCOME ACCUMULATION ACCOUNT FBO XXXXX XXX
XXXXXXXXX, XXXXX XXXX XXXXXXXXX, XXXXXXX X.
XXXXXXXXX AND XXXXXX BANK, N.A., TRUSTEES
/s/ Xxxxx Xxxx Xxxxxxxxx
------------------------------------
By: Xxxxx Xxxx Xxxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxxxx, Trustee
XXXXXX X. XXXX IRREVOCABLE DEED OF TRUST -
INCOME ACCUMULATION ACCOUNT FBO XXXX XXXX
XXXXXXXXX, XXXXX XXXX XXXXXXXXX, XXXXXXX X.
XXXXXXXXX AND XXXXXX BANK, N.A., TRUSTEES
/s/ Xxxxx Xxxx Xxxxxxxxx
------------------------------------
By: Xxxxx Xxxx Xxxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
By: Xxxxxxx X. Xxxxxxxxx, Trustee
SCHEDULE A
Seller Sale Shares
------ -----------
Xxxxx Xxxx Xxxxxxxxx 743,209
Xxxxxx X. Xxxxxxxxx 5,542
Xxxxxx X. & Xxxxx Xxxxxxxxx, Joint 4,555
Tenants
Xxxx Xxxxxx 1,865
Xxxx X. Xxxxxx 10,285
Xxxxx Xxxx Xxxxxx 728,051
Xxxxx X. Xxxx 76,997
Xxxxx Xxxx Xxxxxx 409,599
Xxxxxxxx Xxxx Trustee For The Xxxxx X. Xxxx
Grantor Retained Annuity Trust #4 25,011
1997 Charitable Remainder Unitrust 28,600
1997 Charitable Remainder Unitrust 29,797
The Xxxxx Xxxx Xxxxxx 1998 Trust 58,558
The Xxxxx Xxxx Xxxxxx 1998 Trust 54,446
Xxxxxxx Xxx Xxxxxx 18,468
Xxxxx X. Xxxxxx 321,894
Xxxxx & Xxxx Xxxxxxxxx, Trustees 35,344
Xxxxx & Xxxxx Xxx Xxxxxxxxx, Trustees 42,481
Xxx Xxxxxxxxx Xxxxxx 12,822
Xxxxxx X. Xxxx Deed of Trust - X. Xxxxxx 1,259,148
Xxxxxx X. Xxxx Deed of Trust - X. Xxxxxxxxx 1,259,149
Xxxxxx X. Xxxx Deed of Trust - X. Xxxxxx 1,259,148
Weis Family Holdings, L.P. 8,092,273
SCHEDULE B
XXXX MARKETS REPURCHASES STOCK
FROM XXXXXXXX XXXX FAMILY GROUP AT $30 PER SHARE
RESPECTED SUPERMARKET INDUSTRY LEADER NAMED TO BOARD
SUNBURY, PA, May 7, 2001 - Xxxx Markets, Inc. (NYSE:WMK) today
announced that it has repurchased in a private transaction an aggregate of
14,477,242 shares of its common stock at a purchase price of $30.00 per share.
The shares were purchased from the family of the late Xxxxxxxx Xxxx. The Company
purchased the shares with its cash reserves and approximately $30 million in
borrowings under a bank credit agreement. The share repurchase was reviewed and
unanimously approved, as being in the best interests of the Company, by a
committee composed of all of the Company's non-management independent directors
who are not members of the Weis family. The committee received financial advice
from Xxxxxx Xxxxxxx & Co. and Dresdner Kleinwort Xxxxxxxxxxx, Inc., both of whom
rendered fairness opinions in respect of the transaction.
Xxxxxx Xxxx, Chairman and Treasurer of Xxxx Markets, said, "This
transaction, which is significantly accretive to earnings on a pro forma basis,
is attractive from a financial standpoint. Xxxx Markets' substantial cash
reserves enabled us to purchase this block of shares, while maintaining our
financial strength and our capacity to pay dividends. We have also resolved a
long-standing family debate regarding the Company's strategic direction, thus
allowing members of Xxxx Markets' senior management to focus their full
attention on the business and continued growth of the Company."
Xxxx Markets also announced that Xxxxxx Xxxxx has been appointed to
the Company's board of directors. Xx. Xxxxx is President of KVAT Food City
Stores, headquartered in Abingdon, Virginia, and is outgoing Chairman of the
National Grocers Association. "We are delighted that Xx. Xxxxx has agreed to
join the board," said Xxxxxx Xxxx, Xxxx Market's President. "Xx. Xxxxx is a
respected leader in the supermarket industry, and will be able to bring his many
years of experience in this sector to the service of the Company."
Xx. Xxxxx will fill the seat left vacant by Xxxxxx Xxxxxxxxx, who
has resigned from his position on the Company's board of directors. Xxxxxx Xxxx
said, "On behalf of the Board, I would like to thank Xxx for his many years of
service to the Company."
Founded in 1912, Xxxx Markets generated $2.06 billion in sales
during 2000. The Company currently operates 164 stores in six states:
Pennsylvania, Maryland, New Jersey, New York, Virginia and West Virginia.
Contact: Xxxxx Xxxx
Xxxx Xxxxxxx
Kekst and Company
Phone: 000-000-0000
