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