TENDER AND SUPPORT AGREEMENT
Exhibit 10.1
TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of February 21, 2007, is by and
among Whole Foods Market, Inc., a Texas corporation (“Purchaser”), WFMI Merger Co., a Delaware
corporation and wholly-owned subsidiary of Purchaser (“Merger Sub”), Wild Oats Markets, Inc., a
Delaware corporation (the “Company”), Yucaipa American Alliance Fund I, L.P., a Delaware limited
partnership (“YAAF”), and Yucaipa American Alliance (Parallel) Fund I, L.P., a Delaware limited
partnership (“YAAF Parallel”) (each of YAAF and YAAF Parallel being referred to herein as a
"Securityholder”).
WHEREAS, as of the date hereof, YAAF and YAAF Parallel beneficially own 3,160,296 and
2,215,304 shares, respectively, of common stock of the Company (“Company Common Stock”) (such
shares, together with any shares of Company Common Stock that are hereafter issued to or otherwise
acquired or owned by any Securityholder prior to the termination of this Agreement being referred
to herein as the “Subject Shares”);
WHEREAS, as a condition to their willingness to enter into the Agreement and Plan of Merger
(the “Merger Agreement”) dated as of the date hereof, among Purchaser, Merger Sub and the Company,
Purchaser and Merger Sub have required that each Securityholder, and in order to induce Purchaser
and Merger Sub to enter into the Merger Agreement each Securityholder (only in such
Securityholder’s capacity as a holder of the Subject Shares) has agreed to, enter into this
Agreement; and
WHEREAS, capitalized terms used but not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, the parties hereto agree as follows:
ARTICLE 1
Agreement to Tender
Agreement to Tender
Section 1.01. Agreement to Tender. Unless this Agreement shall have been terminated in
accordance with its terms, each Securityholder shall validly tender or cause to be tendered in the
Offer all of such Securityholder’s Subject Shares pursuant to and in accordance with the terms of
the Offer. As promptly as practicable, but in any event no later than five Business Days after
receipt by such Securityholder of all documents or instruments required to be delivered pursuant to
the terms of the Offer, including but not limited to the letter of transmittal, each Securityholder
shall (i) deliver to the depositary designated in the Offer (the “Depositary”) (A) a letter of
transmittal with respect to its Subject Shares complying with the terms of the Offer, (B) a
certificate or certificates representing such Subject Shares or an “agent’s message” (or such other
evidence, if any, of transfer as the Depositary may reasonably request) in the case of a book-entry
transfer
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of any uncertificated Subject Shares and (C) all other documents or instruments required to be
delivered by other stockholders of the Company pursuant to the terms of the Offer, and/or (ii)
instruct its broker or such other Person that is the holder of record of any Subject Shares
beneficially owned by such Securityholder to tender such Subject Shares pursuant to and in
accordance with the terms of the Offer. Each Securityholder agrees that, once its Subject Shares
are tendered, such Securityholder will not withdraw any of such Subject Shares from the Offer,
unless and until (i) the Offer shall have been terminated by Merger Sub in accordance with the
terms of the Merger Agreement or (ii) this Agreement shall have been terminated in accordance with
its terms.
Section 1.02. Merger Consideration. Any amount of Merger Consideration paid for each share of
Company Common Stock in excess of the Offer Price must be paid, promptly after the Effective Time,
to each Securityholder in respect of such Securityholder’s Subject Shares.
ARTICLE 2
Representations and Warranties of the Securityholders
Representations and Warranties of the Securityholders
Each Securityholder represents and warrants to Purchaser and Merger Sub as to itself,
severally and not jointly, that:
Section 2.01. Authorization; Binding Agreement. The consummation of the transactions
contemplated hereby are within such Securityholder’s corporate or organizational powers and have
been duly authorized by all necessary corporate or organizational actions on the part of such
Securityholder. Such Securityholder signing this Agreement has full power and authority to
execute, deliver and perform this Agreement.
Section 2.02. Non-Contravention. The execution, delivery and performance by such
Securityholder of this Agreement and the consummation of the transactions contemplated hereby do
not and will not (i) violate any certificate of incorporation, bylaws or other organizational
documents of such Securityholder, (ii) violate any law applicable to such Securityholder, (iii)
require any consent or other action by any Person under, constitute a default under, or give rise
to any right of termination, cancellation or acceleration or to a loss of any benefit to which such
Securityholder is entitled under any provision of any agreement or other instrument binding on such
Securityholder or (iv) result in the imposition of any Lien on any asset of such Securityholder, in
the case of each of clauses (ii) through (iv) such as would impair or adversely affect such
Securityholder’s ability to perform its obligations hereunder.
Section 2.03. Ownership of Subject Shares; Total Shares. Such Securityholder is the record or
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of its Subject Shares and, as of
the date of Merger Sub’s acceptance of the shares of Company Common Stock in the Offer, such
Subject Shares will be free and clear of any Lien and any other limitation or restriction
(including any restriction on the right to vote or
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otherwise transfer such Subject Shares), except as provided hereunder or pursuant to any applicable
restrictions on transfer under the Securities Act.
Section 2.04. Voting Power. Such Securityholder has full voting power, with respect to its
Subject Shares, and full power of disposition, full power to issue instructions with respect to the
matters set forth herein and full power to agree to all of the matters set forth in this Agreement,
in each case with respect to all of its Subject Shares. None of such Securityholder’s Subject
Shares are subject to any voting trust or other agreement or arrangement with respect to the voting
of such shares, except as provided hereunder.
ARTICLE 3
Additional Covenants of the Securityholders
Additional Covenants of the Securityholders
Each Securityholder hereby covenants and agrees as to itself, severally and not jointly, that:
Section 3.01. Voting of Subject Shares.
(a) At every meeting of the stockholders of the Company called, and at every adjournment or
postponement thereof, such Securityholder shall, or shall cause the holder of record on any
applicable record date to, vote its Subject Shares (to the extent that any of such Securityholder’s
Subject Shares are not purchased in the Offer) (i) in favor of the adoption of the Merger Agreement
and the transactions contemplated thereby, (ii) against (A) any agreement or arrangement related to
any Acquisition Proposal, (B) any liquidation, dissolution, recapitalization, extraordinary
dividend or other significant corporate reorganization of the Company or any of its Subsidiaries or
(C) any other transaction the consummation of which would reasonably be expected to impede,
interfere with, prevent or materially delay the Offer or the Merger or that would reasonably be
expected to dilute materially the benefits to Purchaser of the transactions contemplated by the
Merger Agreement and (iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement, which is considered at any such meeting of
stockholders, and in connection therewith to execute any documents reasonably requested by
Purchaser that are necessary or appropriate in order to effectuate the foregoing.
(b) In order to secure the performance of such Securityholder’s obligations under this
Agreement, by entering into this Agreement, such Securityholder hereby irrevocably grants a proxy
appointing each executive officer of Purchaser as such Securityholder’s attorney-in-fact and proxy,
with full power of substitution, for and in its name, to vote, express consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by Section 3.01(a) above
as such attorney-in-fact and proxy, in its sole discretion, deems proper with respect to such
Securityholder’s Subject Shares. The proxy granted by such Securityholder pursuant to this
Section 3.01(b) shall be revoked automatically, without any notice or other action by any
Person, upon termination of this
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Agreement in accordance with its terms. Such Securityholder hereby revokes any and all previous
proxies granted with respect to its Subject Shares.
(c) Each Securityholder shall retain at all times the right to vote such Securityholder’s
Subject Shares in such Securityholder’s sole discretion and without any other limitation on those
matters other than those set forth in Section 3.01(a) above that are at any time or from
time to time presented for consideration to the Company’s stockholders generally.
Section 3.02. No Inconsistent Arrangements. Except as provided hereunder or under the Merger
Agreement, such Securityholder shall not, directly or indirectly, (i) create or permit to exist any
Lien on any such Subject Shares, (ii) enter into any contract with respect to any transfer of such
Subject Shares or any interest therein, (iii) grant or permit the grant of any proxy, power of
attorney or other authorization in or with respect to such Subject Shares, (iv) deposit or permit
the deposit of such Subject Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Subject Shares or (v) take or permit any other action that would
in any way restrict, limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or otherwise make any representation or warranty of each
Securityholder herein untrue or incorrect.
Section 3.03. No Exercise of Appraisal Rights. Such Securityholder agrees not to exercise
any appraisal rights or dissenter’s rights in respect of its Subject Shares that may arise with
respect to the Merger.
Section 3.04. Documentation and Information. Such Securityholder (i) consents to and
authorizes the publication and disclosure by Purchaser of its identity and holding of Subject
Shares, the nature of its commitments and obligations under this Agreement (including, for the
avoidance of doubt, the disclosure of this Agreement) and any other information, in each case that
Purchaser reasonably determines is required to be disclosed by applicable law in any press release,
the Offer Documents or any other disclosure document in connection with the Offer, the Merger and
any transactions contemplated by the Merger Agreement and (ii) agrees promptly to give to Purchaser
any information it may reasonably require for the preparation of any such disclosure documents.
Such Securityholder agrees to promptly notify Purchaser of any required corrections with respect to
any written information supplied by it specifically for use in any such disclosure document, if and
to the extent that any shall have become false or misleading in any material respect.
ARTICLE 4
Miscellaneous
Miscellaneous
Section 4.01. Notices. All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission) and shall be given, (i) if to Purchaser,
Merger Sub or the Company, in accordance with the provisions of the Merger Agreement and (ii) if to
YAAF or YAAF Parallel, to 0000 X. Xxxxxx Xxxxxxxxx,
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Xxx Xxxxxxx, Xxxxxxxxxx 00000 (attention: Xxxxxx X. Xxxxxxxxxx), or to such other address or
facsimile number as such party may hereafter specify for the purpose by notice to each other party
hereto. All such notices, requests and other communications shall be deemed received on the date
of receipt by the recipient thereof if received prior to 5:00 p.m. on a business day in the place
of receipt. Otherwise, any such notice, request or communication shall be deemed to have been
received on the next succeeding Business Day in the place of receipt.
Section 4.02. Termination. This Agreement shall terminate automatically, without any notice
or other action by any Person, upon the earlier of (i) the termination of the Merger Agreement in
accordance with its terms and (ii) the Effective Time. Each Securityholder shall have the right to
terminate this Agreement immediately following (A) any change in the nature of the consideration
payable in the Offer or the Merger, (B) any decrease in consideration payable in the Offer or the
Merger or (C) any increase in the consideration payable to holders of Subject Shares that is not
made equally available to holders of all shares of Company Common Stock. Notwithstanding the
foregoing, nothing set forth in this Section 4.02 or elsewhere in this Agreement shall
relieve either party hereto from liability, or otherwise limit the liability of either party
hereto, for any breach of this Agreement.
Section 4.03. Survival of Representations and Warranties. The representations and warranties
contained herein and in any certificate or other writing delivered pursuant hereto shall not
survive the Effective Time.
Section 4.04. Amendments and Waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is
to be effective. No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege.
Section 4.05. Expenses. Except as otherwise provided herein, all costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 4.06. Binding Effect; Benefit; Assignment. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective successors
and assigns. No provision of this Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any person other than the parties hereto and their
respective successors and assigns. No party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of each other party hereto, except
that each of Purchaser and Merger Sub may transfer or assign its rights and obligations under this
Agreement, in whole or from time to time in part, to one or more of its Affiliates at any time;
provided,
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that such transfer or assignment shall not relieve Purchaser or Merger Sub of any of its
obligations hereunder.
Section 4.07. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.
Section 4.08. Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until
and unless each party has received a counterpart hereof signed by each other party hereto, this
Agreement shall have no effect and no party shall have any right or obligation hereunder (whether
by virtue of any other oral or written agreement or other communication).
Section 4.09. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement and supersedes all prior agreements
and understandings, both oral and written, between the parties with respect to its subject matter.
Section 4.10. Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other Governmental Entity to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
Section 4.11. Specific Performance. The parties hereto agree that each of Purchaser and
Merger Sub would be irreparably damaged if for any reason any Securityholder fails to perform any
of its obligations under this Agreement, and that each of Purchaser and Merger Sub would not have
an adequate remedy at law for money damages in such event. Accordingly, each of Purchaser and
Merger Sub shall be entitled to specific performance and injunctive and other equitable relief to
prevent breaches of this Agreement or to enforce specifically the performance of the terms and
provisions hereof in any federal court located in the State of Delaware or any Delaware state
court, in addition to any other remedy to which they are entitled at law or in equity.
[SIGNATURE PAGE FOLLOWS]
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The parties are executing this Agreement on the date set forth in the introductory clause.
| Whole Foods Market, Inc. | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxxxx
|
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| WFMI Merger Co. | ||||||
| By: | /s/ Xxxxxxx Xxxx | |||||
| Xxxxxxx Xxxx, President | ||||||
| Wild Oats Markets, Inc. | ||||||
| By: | /s/ Xxxx Xxxx | |||||
| Name: Xxxx Xxxx Title: Chairman and CEO |
||||||
| Yucaipa American Alliance Fund I, LP | ||||||
| By: | Yucaipa American Alliance Fund I, LLC | |||||
| Its: | General Partner | |||||
| By: | Yucaipa American Funds, LLC | |||||
| Its: | Managing Member | |||||
| By: | Yucaipa American Management, LLC | |||||
| Its: | Managing Member | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx
Vice President |
|||||
| Yucaipa American Alliance (Parallel) Fund I, LP | ||||||
| By: | Yucaipa American Alliance Fund I, LLC | |||||
| Its: | General Partner | |||||
| By: | Yucaipa American Funds, LLC | |||||
| Its: | Managing Member | |||||
| By: | Yucaipa American Management, LLC | |||||
| Its: | Managing Member | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||
| Xxxxxx X. Xxxxxxxxxx Vice President |
||||||
