VOTING AND PAYMENT AGREEMENT
VOTING AGREEMENT, dated as of December 17, 1998 (this
"Agreement"), among PHAR MOR, INC., a Pennsylvania corporation
("Buyer"), and XXXXXXX XXXXXXX (the "Holder").
WITNESSETH:
WHEREAS, Buyer, PHARMACY ACQUISITION CORP., a New York
corporation and wholly-owned subsidiary of Buyer ("Merger
Subsidiary") and PHARMHOUSE CORP., a New York corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger
to be dated as of the date hereof (the "Merger Agreement";
capitalized terms used herein and not otherwise defined are used
herein as defined in the Merger Agreement), pursuant to which
Merger Subsidiary will be merged with and into the Company (the
"Merger"), and each outstanding share of the common stock, par
value $.01, of the Company (the "Company Common Stock") will be
converted into the right to receive cash on the basis described
in the Merger Agreement;
WHEREAS, the Holder, individually or as trustee or
custodian, is the owner of the number of shares of Company Common
Stock set forth opposite the Holder's name on Schedule I to this
Agreement (the "Subject Shares"); and
WHEREAS, as a condition of its entering into the Merger
Agreement, Buyer has requested that the Holder agree, and the
Holder has agreed, (i) to vote the Subject Shares with respect to
the Merger Agreement and the Merger and (ii) to make certain
payments to Buyer, upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, and
intending to be legally bound hereby, the parties hereto hereby
agree as follows:
Section 1. Agreement to Vote Shares. (a) At every
annual or special meeting of the shareholders of the Company and
at every continuation or adjournment thereof, and on every action
or approval by written consent of the shareholders of the Company
in lieu of any such meeting, in which in either case the Merger
Agreement and the Merger are being considered or voted on, the
Holder shall vote the Subject Shares in accordance with the
recommendations of the Board of Directors of the Company. The
Holder may vote the Subject Shares on all other matters.
(b) No person executing this Agreement who is or becomes
during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such
director. The Holder signs solely in his or her capacity as the
owner of the Subject Shares.
Section 2. Agreement to Make Payments. In the event
that (i) an Acquisition Proposal shall have been made known to
the Company or any Company Subsidiary, or has been made directly
to the Company's stockholders generally or any person shall have
publicly announced an intention (whether or not conditional) to
make an Acquisition Proposal and thereafter Company Stockholder
Approval is not obtained, or (ii) the Merger Agreement is
terminated by Buyer pursuant to Section 9.01(h) or Section
9.01(l) thereof, and if in either case during the period ending
June 30, 2000 the Holder sells, assigns or transfers all or any
of the Subject Shares (whether by operation of law or otherwise)
for consideration in excess of $3.25 per share, then Holder shall
pay to Buyer all consideration received by the Holder in
connection with such transfer in excess of $3.25 per share. The
Holder shall make such payment to Buyer promptly, and in any
event no later than three business days, after receipt by the
Holder of the consideration from the holder's transferee as
aforesaid.
Section 3. Representations and Warranties of the Holder.
The Holder hereby represents and warrants to Buyer that:
(a) this Agreement has been duly executed and
delivered by the Holder, and is the legal, valid and binding
obligation of the Holder;
(b) no consent of any court, governmental authority,
beneficiary, co-trustee or other person is necessary for the
execution, delivery and performance of this Agreement by the
Holder;
(c) the Holder owns the Subject Shares free and clear
of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind, other than this
Agreement;
(d) the Holder has the present power and right to vote
all of the Subject Shares; and
(e) except as provided herein, the Holder has not (i)
granted any power-of-attorney or other authorization or
interest with respect to any of the Subject Shares, (ii)
deposited any of the Subject Shares into a voting trust or
(iii) entered into any voting agreement of other arrangement
with respect to the voting of any of the Subject Shares.
Section 4. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to the Holder that:
(a) this Agreement has been duly executed and
delivered by Buyer, and is the legal, valid and binding
obligation of Buyer; and
(b) no consent of any court, governmental authority,
beneficiary, co-trustee or other person is necessary for the
execution, delivery and performance of this Agreement by
Buyer.
Section 5. Covenants of the Holder. The Holder hereby
agrees and covenants that:
(a) any shares of capital stock of the Company
(including the Company Common Stock) that the Holder
purchases or with respect to which the Holder otherwise
acquires beneficial ownership (including by reason of stock
dividends, split-ups, recapitalizations, combinations,
exchanges of shares or the like) after the date of this
Agreement and prior to the termination of the covenants of
the Holder set forth in Section 1 shall be considered
Subject Shares and subject to the covenants of Section 1 and
Section 2 of this Agreement;
(b) the Holder will not sell, assign, pledge or
otherwise transfer any of the Subject Shares at any time
prior to the termination of the covenants of the Holder set
forth in Section 1; provided, however, that the foregoing
limitation shall not apply to any transfer effected pursuant
to the laws of descent and distribution or intestate succession
following the death of the Holder during the subject period,
but shall apply to any further transfer by any permitted
successor or assign of the Holder pursuant to such laws; and
(c) during the period beginning on the date of the
termination of the covenants of the Holder set forth in
Section 1 and ending on June 30, 2000, the Holder will not
sell, assign or transfer all or any of the Subject Shares
other than for value in a bona fide arms' length transaction
to an unaffiliated transferee; provided, however, that the
foregoing limitation shall not apply to any transfer
effected pursuant to the laws of descent and distribution
following the death of the Holder during the subject period,
but shall apply to any further transfer by any permitted
successor or assign of the Holder pursuant to such laws.
Section 6. Termination. This covenants of the Holder
set forth in Section 1 hereof shall terminate on the earlier of
(a) the Effective Time and (b) the date 30 calendar days after
the date on which the Merger Agreement is terminated. The
covenants of the Holder set forth in Section 2 hereof shall
terminate on June 30, 2000.
Section 7. Notices. All notices, requests and other
communications given or made pursuant hereto to any party
hereunder shall be in writing (including facsimile or similar
writing) and shall be given:
if to Buyer:
Phar Mor, Inc.
00 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. XxXxx, Xx.
Facsimile: 000-000-0000
if to the Holder:
Xxxxxxx Xxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
and to:
Xxxxxxx, Xxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
or such other address or facsimile numbers as such party may
hereafter specify for the purpose by notice to the other parties
hereto. Each such notice, request or other communication shall
be effective (a) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified in this Section and
the appropriate facsimile confirmation is received, or (b) if
given by any other means, when delivered at the address specified
in this Section.
Section 8. Amendments; No Waivers. (a) Any provision of
this Agreement may be amended or waived prior to the Effective
Time if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Buyer and the Holder or
in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) 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. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 9. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 10. Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns,
provided that no party may assign, delegate or otherwise transfer
any of its rights or obligations under this Agreement without the
prior written consent of each of the other parties hereto.
Section 11. 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
counterparts hereof signed by all of the other parties hereto.
Section 12. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York without reference to conflict of laws
principles applied in such State.
Section 13. Jurisdiction; Jury Trial Waiver. (a) Any
suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with this
Agreement or the transactions contemplated by this Agreement
shall be brought in any federal court located in the Southern
District of the State of New York or any New York state court
sitting in New York City, and each of the parties hereto hereby
consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action
or proceeding and waives any objection to venue laid therein.
Process in any such suit, action or proceeding may be served on
any party anywhere in the world, whether within or without the
State of New York. Without limiting the generality of the
foregoing, each party hereto agrees that service of process upon
such party at the address referred to in Section 8, together with
written notice of such service to such party, shall be deemed
effective service of process upon such party.
(b) EACH PARTY HERETO HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING INSTITUTED BY EITHER OF THEM
AGAINST THE OTHER WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, ANY ALLEGED TORTIOUS CONDUCT BY ANY PARTY, OR IN ANY
WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE
RELATIONSHIP AMONG THE PARTIES HERETO.
Section 14. Specific Performance. The parties hereto
agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with
the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in any federal court located in the Southern District
of the State of New York or any New York state court sitting in
New York City, in addition to any remedy to which they are
entitled at law or in equity.
Section 15. Interpretation. When a reference is made in
this Agreement to a Section, such reference shall be to a Section
of this Agreement unless otherwise indicated. Whenever the words
"include," "includes" or "including" are used in this Agreement
they shall be deemed to be followed by the words "without
limitation." The phrases "the date of this Agreement," "the date
hereof," and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to December 17,
1998.
Section 16. Entire Agreement. This Agreement constitutes
the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior written and oral
and all contemporaneous oral agreements and understandings with
respect to the subject matter hereof. Each party acknowledges
and agrees that no other party hereto makes any representations
or warranties, whether express or implied, other than the express
representations and warranties contained herein.
Section 17. Severability. If any term or other provision
of this Agreement is determined to be invalid, illegal or
incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated
herein is not affected in any manner materially adverse to any
party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed by their
respective authorized officers, as of the day and year first
above written.
PHAR MOR, INC.
By:
Name:
Title:
THE HOLDER
By:
Name: Xxxxxxx Xxxxxxx
SCHEDULE I
HOLDER NUMBER OF SHARES
Xxxxxxx Xxxxxxx 1,281
