EXHIBIT 5
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 18, 1998 (this "Agreement"),
among the stockholders identified on Annex A (each, a "Stockholder";
collectively, the "Stockholders") and The Kroger Co., an Ohio corporation
("Kroger").
WHEREAS, Xxxx Xxxxx, Inc., a Delaware corporation ("Xxxx Xxxxx"),
Kroger and Jobsite Holdings, Inc., a Delaware corporation and a wholly
owned subsidiary of Kroger ("Merger Sub"), are contemporaneously entering
into an Agreement and Plan of Merger, dated as of this date (the "Merger
Agreement"), which provides, among other things, for the merger of Merger
Sub with and into Xxxx Xxxxx (the "Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Kroger and Merger Sub have requested that the Stockholders make
certain agreements with respect to certain shares of Common Stock, par
value $.01 per share ("Shares"), of Xxxx Xxxxx beneficially owned by the
Stockholders, upon the terms and subject to the conditions of this
Agreement; and
WHEREAS, in order to induce Kroger and Merger Sub to enter into the
Merger Agreement, the Stockholders are willing to make certain agreements
with respect to the Subject Shares (as defined);
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth in this Agreement, the parties agree as
follows:
1. Voting Agreements; Proxy.
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(a) For so long as this Agreement is in effect, in any meeting of
stockholders of Xxxx Xxxxx, and in any action by consent of the
stockholders of Xxxx Xxxxx, each Stockholder shall vote, or, if applicable,
give consents with respect to, all of the Subject Shares that are held by
that Stockholder on the record date applicable to the meeting or consent in
favor of the Merger Agreement and the Merger contemplated by the Merger
Agreement, as the Merger Agreement may be modified or amended from time to
time in a manner not adverse to the Stockholders. Each Stockholder shall
use his best efforts to cast that Stockholder's vote or give that
Stockholder's consent in accordance with the procedures communicated to
that Stockholder by Xxxx Xxxxx relating thereto so that the vote or consent
shall be duly counted for purposes of determining that a quorum is present
and for purposes of recording the results of that vote or consent.
(b) Upon the reasonable written request of Kroger, in furtherance of
the transactions contemplated in this Agreement and by the Merger Agreement
and in order to secure the performance of each Stockholder's duties under
Section 1(a) of this Agreement, each Stockholder shall promptly execute, in
accordance with the provisions of Section 212 of the Delaware General
Corporation Law, and deliver to Kroger an irrevocable proxy, substantially
in the form attached as Exhibit A, and irrevocably appoint Kroger or its
designees, with full power of substitution, its attorney and proxy to vote
or, if applicable, to give consent with respect to, all Shares constituting
Subject Shares at the time of the relevant record date with regard to any
of the matters referred to in paragraph (a) above at any meeting of the
stockholders of Xxxx Xxxxx, or in connection with any action by written
consent by the stockholders of Xxxx Xxxxx. Each Stockholder acknowledges
and agrees that this proxy, if and when given, shall be coupled with an
interest, shall constitute, among other things, an inducement for Kroger to
enter into the Merger Agreement, shall be irrevocable and shall not be
terminated by operation of law or otherwise upon the occurrence of any
event and that no subsequent proxies with respect to such Subject Shares
shall be given (and if given shall not be effective); provided, however,
that any such proxy shall terminate automatically and without further
action on behalf of the Stockholders upon the termination of this
Agreement.
2. Covenants. For so long as this Agreement is in effect, each
Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation,
encumbrance, tender or other disposition of (each such disposition or
contract, a "Transfer"), a number of Subject Shares which, when aggregated
with all Transfers made after the date hereof by other Stockholders who are
party to this Agreement, would exceed 10% of the total number of (A)
Subject Shares set forth on Schedule A hereto plus (B) any Shares the
Stockholders then have the right to acquire, or will have the right to
acquire within 60 days, pursuant to options to purchase Shares granted to
the Stockholders by Xxxx Xxxxx; (ii) xxxxx any proxies with respect to any
shares that then constitute Subject Shares, deposit any of the Subject
Shares into a voting trust or enter into a voting or option agreement with
respect to any of the Subject Shares; (iii) subject to Section 6, directly
or indirectly, solicit, initiate, encourage or otherwise facilitate any
inquiries or the making of any proposal or offer with respect to an
Acquisition Proposal (as defined in the Merger Agreement) 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; or (iv) take any action which would make any representation or
warranty of any Stockholder in this Agreement untrue or incorrect or
prevent, burden or materially delay the consummation of the transactions
contemplated by this Agreement; provided, however, that nothing in the
foregoing provisions of this Section 2 shall prohibit any Stockholder from
effecting any Transfer of Subject Shares (A) pursuant to any bona fide
charitable gift or by will or applicable laws of descent and distribution,
(B) for estate planning purposes, if the transferee pursuant to this clause
(B) agrees in writing to be bound by the provisions of this agreement, or
(C) pursuant to a pledge for purposes of securing customary margin or
similar loans or pursuant to the writing of options or in connection with
any hedging, derivative or similar transaction (and taking other necessary
or customary steps related thereto, including, without limitation,
Transferring any certificate evidencing the shares to a lender or trustee
or a nominee thereof), if notwithstanding such Transfer made pursuant to
this clause (C), the Stockholder retains the power to vote such Shares in
accordance with the terms of this Agreement and for as long as this
Agreement is in effect. No Transfer made pursuant to the proviso of the
immediately preceding sentence shall be counted in determining whether the
Stockholders are in compliance with the 10% limitation set forth in clause
(i) of the immediately preceding sentence. Notwithstanding anything to the
contrary contained in this Agreement, no Stockholder shall effect any
Transfer of Subject Shares that would prevent the business combination to
be effected pursuant to the Merger from being accounted for as a
"pooling-of-interests" under GAAP (as defined in the Merger Agreement) or
the rules and regulations of the SEC (as defined in the Merger Agreement).
As used in this Agreement, "person" shall have the meaning specified in
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
3. Representations and Warranties of Stockholders. Each Stockholder
severally and not jointly represents and warrants to Kroger that:
(a) Capacity; No Violations. The Stockholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated
by this Agreement. This Agreement has been duly executed and delivered by
the Stockholder and constitutes a valid and binding agreement of the
Stockholder enforceable against the Stockholder in accordance with its
terms except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and general principles of equity (whether considered in a
proceeding in equity or at law). The execution, delivery and performance by
the Stockholder of this Agreement will not (i) conflict with, require a
consent, waiver or approval under, or result in a breach or default under,
any of the terms of any contract, commitment or other obligation to which
the Stockholder is a party or by which the Stockholder is bound; (ii)
violate any order, writ, injunction, decree or statute, or any law, rule or
regulation applicable to the Stockholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Stockholder to
create, any Lien upon the Subject Shares that would prevent the Stockholder
from voting the Subject Shares. In this Agreement, "Lien" shall mean any
lien, pledge, security interest, claim, third party right or other
encumbrance.
(b) Subject Shares. As of the date of this Agreement, the Stockholder
is the beneficial owner of and has the power to vote or direct the voting
of the Subject Shares free and clear of any Liens that would prevent the
Stockholder from voting such Subject Shares. As of the date of this
Agreement, the Subject Shares are the only shares of any class of capital
stock of Xxxx Xxxxx which the Stockholder has the right, power or authority
(sole or shared) to sell or vote, and, other than options or warrants to
purchase Shares held by the Stockholder as of this date, the Stockholder
does not have any right to acquire, nor is it the beneficial owner of, any
other shares of any class of capital stock of Xxxx Xxxxx or any securities
convertible into or exchangeable or exercisable for any shares of any class
of capital stock of Xxxx Xxxxx. The Stockholder is not a party to any
contracts (including proxies, voting trusts or voting agreements) that
would prevent the Stockholder from voting the Subject Shares.
4. Expenses. Each party to this Agreement shall pay its own expenses
incurred in connection with this Agreement.
5. Specific Performance. The Stockholder acknowledges and agrees that
if he fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to Kroger for
which money damages would not be an adequate remedy. In that event, the
Stockholder agrees that Kroger shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, if Kroger should institute an action or proceeding seeking
specific enforcement of the provisions of this Agreement, the Stockholder
hereby waives the claim or defense that Kroger has an adequate remedy at
law and hereby agrees not to assert in that action or proceeding the claim
or defense that a remedy at law exists. The Stockholder further agrees to
waive any requirements for the securing or posting of any bond in
connection with obtaining any equitable relief.
6. Stockholder Capacity. No person bound by this Agreement who is or
becomes during the term hereof a director or officer of the Company makes
any agreement or understanding herein in his capacity as such director or
officer. Each Stockholder signs solely in his capacity as the beneficial
owner of, or the general partner of a partnership which is the beneficial
owner of, that Stockholder's Subject Shares and nothing herein shall limit
or affect any actions taken by a Stockholder in his or its capacity as an
officer or director of Xxxx Xxxxx to the extent specifically permitted by
the Merger Agreement. Nothing in this Agreement shall be deemed to
constitute a transfer of the beneficial ownership of the Subject Shares by
any Stockholder.
7. Registration Rights Agreement. Kroger acknowledges that Xxxx Xxxxx
and the Stockholders are party to a Registration Rights Agreement dated as
of September 9, 1997, as amended by the Amendment to Registration Rights
Agreement dated March 10, 1998 (as amended, the "Stockholder Registration
Rights Agreement") pursuant to which Xxxx Xxxxx agreed to provide certain
registration rights to the Stockholders. Kroger hereby agrees that,
effective as of the Effective Time of the Merger, it shall assume the
obligations of Xxxx Xxxxx under the Stockholder Registration Rights
Agreement.
8. Notices. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have
been duly given or made as of the date of receipt and shall be delivered
personally or mailed by registered or certified mail (postage prepaid,
return receipt requested), sent by overnight courier or sent by telecopy,
to the applicable party at the following addresses or telecopy numbers (or
at any other address or telecopy number for a party as shall be specified
by like notice):
If to Kroger:
The Kroger Corp.
0000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Xx., Esq.
Telecopy: (000) 000-0000
If to any Stockholder:
The Yucaipa Companies, LLC
0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
With a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
9. Parties in Interest. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and
assigns; provided, however, that any successor in interest or assignee
shall agree to be bound by the provisions of this Agreement. Nothing in
this Agreement, express or implied, is intended to confer upon any Person
other than Kroger, the Stockholders or their successors or assigns, any
rights or remedies under, or by reason, of this Agreement.
10. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the Stockholders and Kroger with respect to the subject
matter of this Agreement and supersedes all prior and contemporaneous
agreements and understandings, oral or written, with respect to these
transactions. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the
party against whom any waiver, change, amendment, modification or discharge
may be sought.
11. Assignment. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written
consent of the other party to this Agreement, except that (a) Kroger may
assign its rights and obligations under this Agreement to any of its direct
or indirect wholly owned subsidiaries (including Merger Sub), but no
transfer shall relieve Kroger of its obligations under this Agreement if
the transferee does not perform its obligations, and (b) any Stockholder
may transfer Subject Shares to the extent permitted by Section 2 of this
Agreement.
12. Headings. The section headings in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same
document.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to its
principles of conflicts of laws.
15. Termination. This Agreement shall terminate automatically and
without further action on behalf of any party at the earlier of (i) the
Effective Time (as defined in the Merger Agreement) and (ii) the date the
Merger Agreement is terminated pursuant to its terms.
16. Subject Shares. The term "Subject Shares" shall mean the Shares
set forth opposite each Stockholder's name on Schedule A hereto, together
with any Shares of capital stock of Xxxx Xxxxx acquired by the Stockholder
after the date hereof over which the Stockholder has the power to vote or
power to direct the voting.
IN WITNESS WHEREOF, Kroger and the Stockholders have caused this
Agreement to be duly executed and delivered on the day and year first above
written.
THE KROGER CO.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President,
Secretary and General Counsel
THE YUCAIPA COMPANIES
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA SSV PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA SMITTY'S PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA SMITTY'S PARTNERS II, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA ARIZONA PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: General Partner
F4L EQUITY PARTNERS, L.P.
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name:
Title:
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, as an individual
FFL PARTNERS
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
YUCAIPA CAPITAL FUND, L.P.
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
YUCAIPA/F4L PARTNERS
By: The Yucaipa Companies
as general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
By: Yucaipa Capital Fund, L.P.,
as general partner
By: Yucaipa Capital Advisors, Inc.
as general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
SCHEDULE A
STOCKHOLDER NAME SHARES OWNED
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The Yucaipa Companies.................................. 4,856,2111*
Yucaipa SSV Partners, L.P.............................. 2,744,595
Yucaipa Smitty's Partners, L.P......................... 631,400
Yucaipa Smitty's Partners II, L.P...................... 287,264
Yucaipa Arizona Partners, L.P.......................... 574,522
F4L Equity Partners, L.P............................... 3,798,526
Xxxxxx X. Xxxxxx....................................... 827,321
FFL Partners........................................... 365,429
Yucaipa Capital Fund, L.P.............................. 335,712
Yucaipa/F4L Partners................................... 79,719
------------
14,500,699
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* Includes 3,869,366 shares issuable upon exercise of a
currently-exercisable warrant.
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Director Voting Agreement, dated as of October __, 1998
(the "Voting Agreement") between the undersigned and The Kroger Co., an
Ohio corporation ("Kroger"), a copy of such agreement being attached hereto
and incorporated by reference herein, the undersigned hereby irrevocably
appoints Xxxxxx X. Xxxxxxx, Xxxx X. Xx Xxxxxxx and X. Xxxxxxx Xxxxxx, Jr.,
and each of them, the attorneys, agents and proxies, with full power of
substitution in each of them, for the undersigned and in the name, place
and stead of the undersigned, to vote or, if applicable, to give written
consent, in such manner as each such attorney, agent and proxy or his
substitute shall in his sole discretion deem proper to record such vote (or
consent) in the manner set forth in Section 1 of the Voting Agreement with
respect to all shares of Common Stock, par value $.01 per share (the
"Shares"), of Xxxx Xxxxx, Inc., a Delaware corporation (the "Company"),
which the undersigned is or may be entitled to vote at any meeting of the
Company held after the date hereof, whether annual or special and whether
or to an adjourned meeting, or, if applicable, to give written consent with
respect thereto. This Proxy is coupled with an interest, shall be
irrevocable and binding on any successor in interest of the undersigned and
shall not be terminated by operation of law or otherwise upon the
occurrence of any event (other than as provided in Section 15 of the Voting
Agreement), including, without limitation, the death or incapacity of the
undersigned. This Proxy shall operate to revoke any prior proxy as to the
Shares heretofore granted by the undersigned. This Proxy shall terminate
upon the termination of the Voting Agreement. This Proxy has been executed
in accordance with Section 212 of the Delaware General Corporation Law.
Dated: October , 1998
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[Name]
