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EXHIBIT (c)(2)
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT, dated as of March 10, 1998 (this
"Agreement"), is made and entered into by and among IHF/GM Holding Corporation,
a Delaware corporation ("Parent"), IHF/GM Acquisition Corporation, a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Sub"), Xxxx X.
Xxxxxxxx (the "Stockholder"), and solely for purposes of Sections 5(c), 6 and
10(b) of this Agreement, Grist Mill Co., a Delaware corporation (the "Company").
WITNESSETH
WHEREAS, concurrently herewith, International Home Foods, Inc., a
Delaware corporation, Parent, Sub and the Company are entering into an Agreement
and Plan of Merger (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"), pursuant to which Sub will be merged with and
into the Company (the "Merger"); capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that Stockholder agree, and Stockholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein and the
benefits to be received by the parties under the terms of the Merger Agreement,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Acquisition Proposal" shall mean any agreement,
letter of intent, or offer (other than the transactions contemplated in the
Merger Agreement) involving the Company or any of its Subsidiaries for: (i) any
merger, consolidation, share exchange, recapitalization, reorganization,
business combination, or other similar transaction, (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of a material portion
of the assets of the Company and its Subsidiaries, taken as a whole, in a single
transaction or series of transactions, or (iii) any tender offer or exchange
offer for all or any portion of the outstanding shares of capital stock of the
Company or any of its Subsidiaries or the filing of a registration statement
under the Securities Act of 1933 in connection therewith, but shall not include
the Second Transaction (as defined herein).
(b) "Affiliate" of any Person means another Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.
(c) "Alternative Disposition" shall have the meaning
ascribed to such term in Section 4(a).
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(d) "Alternative Transaction Consideration" shall mean
all cash, securities, settlement or termination amounts, notes or other debt
instruments, and other consideration received or to be received, directly or
indirectly, by Stockholder and his Affiliates in connection with or as a result
of an Alternative Disposition or any agreements or arrangements (including,
without limitation, any employment agreement, consulting agreement,
non-competition agreement, confidentiality agreement, settlement agreement or
release agreement) entered into, directly or indirectly, by Stockholder or his
Affiliates (excluding officers and directors of the Company) as a part of or in
connection with the Alternative Disposition or associated Acquisition Proposal.
(e) "Beneficially Own" or "Beneficial Ownership" with
respect to any securities shall mean bearing "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include (i) securities Beneficially Owned
by all other Persons (who are Affiliates of such Person excluding officers and
directors of the Company) who together with such Person would constitute a
"group" within the meaning of Section 13(d)(3) of the Exchange Act and (ii)
securities Beneficially Owned by that Person's spouse and children.
(f) "Current Transaction Consideration" shall mean the
sum of all amounts to be received, directly or indirectly, by Stockholder and
his Affiliates pursuant to all of the Transaction Documents as in effect on the
date hereof and pursuant to that certain Employment and Non- Competition
Agreement by and between Stockholder and International Home Foods, Inc. dated as
of the date hereof.
(g) "Person" shall mean an individual, corporation,
limited liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(h) "Second Transaction" shall have the meaning ascribed
to such term in Section 4(b).
(i) "Second Transaction Consideration" shall mean the sum
of all amounts to be received, directly or indirectly, by Stockholder and his
Affiliates (excluding officers and directors of the Company) in connection with
or as a result of a Second Transaction or any agreements or arrangements entered
into, directly or indirectly, by Stockholder or his Affiliates as a part of or
in connection with the Second Transaction.
(j) "Shares" shall mean, with respect to Stockholder, all
shares of Company Common Stock held of record or Beneficially Owned by
Stockholder, whether currently issued or hereinafter acquired, and for the
purposes of Section 4 of this Agreement shall also include, without duplication,
any securities convertible into, or exercisable or exchangeable for, shares of
Company Common Stock, including without limitation any stock options held of
record or Beneficially Owned by Stockholder.
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(k) "Termination Date" shall mean the date that the
Merger Agreement has been terminated.
(l) "Underlying Shares" shall mean the shares of Company
Common Stock issuable to Stockholder upon the exercise by Stockholder of the
Options Beneficially Owned by him.
2. Voting Matters.
(a) From and after the date of this Agreement and ending
as of the first to occur of the Effective Time or the Termination Date, at any
meeting of the holders of Company Common Stock, however called, or in any other
circumstance upon which the vote, consent or other approval of holders of the
Company Common Stock is sought, Stockholder shall vote (or cause to be voted)
his issued and outstanding Shares:
(i) against any action or agreement that would
result in a breach in any material respect of any covenant, representation or
warranty or any other material obligation or agreement of the Company under the
Merger Agreement or this Agreement; and
(ii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement):
(A) any Acquisition Proposal other than
an Acquisition Proposal with Parent or any Affiliate thereof, and
(B) to the extent that such (1) are intended
to, or could reasonably be expected to, impede, interfere with, delay, postpone,
or materially adversely affect the Offer, the Merger or the transactions
contemplated by the Merger Agreement or this Agreement or (2) are intended to,
or could reasonably be expected to, implement or lead to any Acquisition
Proposal (other than an Acquisition Proposal with Parent or any Affiliate
thereof): (x) any change in a majority of the persons who constitute the board
of directors of the Company; (y) any change in the present capitalization of the
Company or any amendment of the Company's certificate of incorporation or
by-laws (other than as expressly contemplated by the Merger Agreement); or (z)
any other material change in the Company's corporate structure or business.
(b) Stockholder hereby grants to, and appoints, Parent
and any nominee thereof, its proxy and attorney-in-fact (with full power of
substitution), from and after the date of this Agreement and ending as of the
first to occur of the Effective Time or the Termination Date, to vote his
Shares, or to grant a consent or approval in respect of his Shares. Stockholder
intends such proxy to be irrevocable and coupled with an interest and will take
such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by Stockholder with respect to his Shares.
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(c) From and after the date of this Agreement and ending
as of the first to occur of the Effective Time or the Termination Date,
Stockholder shall not enter into any agreement or understanding with any Person
or entity the effect of which would be inconsistent with or violate the
provisions and agreements contained in this Section 2.
(d) Nothing herein shall in any way restrict or limit
Stockholder from taking any action in his capacity as a director or officer of
the Company or otherwise fulfilling his fiduciary obligations as a director and
officer of the Company.
3. Tender Agreement and Purchase Option.
(a) Stockholder hereby agrees that he shall (i) tender
all of his Shares into the Offer promptly, and in any event no later than the
third business day following the commencement of the Offer, and (ii) not
withdraw any Shares so tendered prior to the occurrence of the Termination Date.
(b) In the event that (i) the Minimum Condition is not
satisfied, (ii) Sub notifies Stockholder that Sub is prepared to close the
tender but for the fact that the Minimum Condition is not satisfied, and (iii)
the tender by Stockholder of the Underlying Shares would cause the Minimum
Condition to be satisfied, then Stockholder hereby agrees that, at any time
prior to the Termination Date, immediately upon the request of Sub, he shall
exercise all of the Options Beneficially Owned by him and immediately tender the
Underlying Shares received upon such exercise into the Offer (and not withdraw
such Underlying Shares so tendered). Sub shall advance to Stockholder the funds
necessary to pay the exercise price of such Options, and Stockholder shall repay
Sub the amount of such advance, without interest, immediately upon receipt of
the Offer Consideration by him for his Underlying Shares.
(c) In the event that (i) the Offer has been consummated,
(ii) the Stockholder has not exercised his Options pursuant to Section 3(b),
(iii) Sub has acquired pursuant to the Offer a number of shares of Company
Common Stock which constitutes, on a fully diluted basis (as defined in Section
1.1 of the Merger Agreement), less than 90% of the outstanding shares of Company
Common Stock, and (iv) the shares of Company Common Stock acquired by Sub
pursuant to the Offer or otherwise, together with the Underlying Shares,
aggregate at least 90% of the outstanding shares of Company Common Stock, then
Stockholder hereby agrees that, immediately upon the request of Sub, he shall
(y) exercise all of the Options Beneficially Owned by him and (z) immediately
sell to Sub each Underlying Share received upon such exercise, free and clear of
all Liens, in consideration of an amount equal to the Offer Consideration as in
effect on the date of this Agreement (subject to adjustment as provided in
Section 4(b) below).
(d) Except as may be required by Section 3(b) or Section
3(c), Stockholder hereby agrees that he shall not exercise any Options that he
Beneficially Owns.
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4. Capture.
(a) In the event that the Shares of Stockholder are sold,
transferred, exchanged, canceled or disposed of in connection with or as a
result of any Acquisition Proposal that is in existence on, or that has been
otherwise made prior to the first anniversary of, the Termination Date (an
"Alternative Disposition") then, within five business days after the closing of
such Alternative Disposition, Stockholder shall tender and pay to, or shall
cause to be tendered and paid to, the Parent (or its designee), in immediately
available funds, the Profit realized from such Alternative Disposition, less any
withholdings. As used in this Section 4(a), "Profit" shall mean an amount equal
to the excess, if any, of the Alternative Transaction Consideration over the
Current Transaction Consideration.
(b) If, following the date of this Agreement, the amount
of the Offer Consideration, the Merger Consideration or the consideration
payable in respect of the Options as currently provided for in the Merger
Agreement should be increased (a "Second Transaction"), then (i) if the Options
Beneficially Owned by Stockholder have not been exercised, at the option of Sub
in its sole discretion, (y) Stockholder shall tender and pay, or cause to be
tendered and paid, to Parent, or its designee, in immediately available funds,
the Profit realized by Stockholder, less any withholdings, from the Second
Transaction or (z) the amount Stockholder shall receive in respect of his
Options as provided in the Merger Agreement shall be reduced by the Profit
realized by Stockholder from the Second Transaction or (ii) if the Options
Beneficially Owned by Stockholder have been exercised as contemplated in Section
3(c), the amount Stockholder shall receive in respect of his Underlying Shares
as provided in Section 3(c) shall be reduced by the Profit realized by
Stockholder from the Second Transaction. As used in this Section 4(b), "Profit"
shall mean an amount equal to the excess, if any, of the Second Transaction
Consideration over the Current Transaction Consideration.
(c) For purposes of determining Profit under this Section
4, (i) all non-cash items shall be valued based upon the fair market value
thereof as determined by an independent expert selected by Parent and who is
reasonably acceptable to Stockholder, (ii) all deferred payments or
consideration shall be discounted to reflect a market rate of net present value
thereof as determined by the above-referenced independent expert, (iii) all
contingent payments will be assumed to have been paid and (iv) if less than all
of Stockholder's Shares are subject to the Alternative Disposition or Second
Transaction then the Current Transaction Consideration shall be deemed to be an
amount equal to the Current Transaction Consideration multiplied by a fraction,
the numerator of which is the number of Stockholder's Shares sold, transferred,
exchanged, canceled or disposed of in such Alternative Disposition or Second
Transaction and the denominator of which is the total number of Stockholder's
Shares. In the event any contingent payments included in the determination of
Profit ultimately are not paid pursuant to an Alternative Disposition, then
Parent shall promptly reimburse Stockholder for any amounts paid to Parent
hereunder in respect of such uncollected contingent payments promptly after
receipt of written notice of such non-payment.
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5. Covenants. Representations and Warranties of Stockholder.
(a) Stockholder hereby represents, warrants and covenants
to Parent and Sub as follows:
(i) Ownership. Stockholder is either (A) the
record and Beneficial Owner of, or (B) the Beneficial Owner but not
the record holder of, the number of issued and outstanding shares of
Company Common Stock set forth on Part I of Schedule A hereto and the
Options set forth on Part II of Schedule A hereto. As of the date of
this Agreement, the shares of Company Common Stock set forth on Part I
of Schedule A hereto constitute all of the issued and outstanding
Shares owned of record or Beneficially Owned by Stockholder. Except as
otherwise set forth in Part I to Schedule A hereto, Stockholder has
sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the
Shares set forth on Part I of Schedule A hereto, with no material
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(ii) Power; Binding Agreement. Stockholder has
the legal capacity, power and authority to enter into and perform all
of that Stockholder's obligations under this Agreement. This Agreement
has been duly and validly executed and delivered by Stockholder and
constitutes a valid and binding agreement of Stockholder, enforceable
against Stockholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest
of any trust of which Stockholder is trustee whose consent is required
for the execution and delivery of this Agreement or the consummation
by Stockholder of the transactions contemplated hereby. If Stockholder
is married and Stockholder's Shares constitute community property,
this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, Stockholder's
spouse, enforceable against such person in accordance with its terms.
(iii) No Conflicts. Except for the filing of an
amendment to Stockholder's Schedule 13D or 13G, if any, no filing with,
and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this
Agreement by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby, except where the failure to obtain
such consent, permit, authorization, approval or filing would not
interfere with Stockholder's ability to perform his obligations
hereunder, and none of the execution and delivery of this Agreement by
Stockholder, the consummation by Stockholder of the transactions
contemplated hereby or compliance by Stockholder with any of the
provisions hereof shall (A) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default
(or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of
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any kind to which Stockholder is a party or by which Stockholder or any
of his properties or assets may be bound, or (B) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to Stockholder or any of his properties or assets, in each
such case except to the extent that any conflict, breach, default or
violation would not interfere with the ability of Stockholder to
perform the obligations hereunder.
(iv) No Encumbrances. Except (A) as required
herein, (B) for pledges or encumbrances created in compliance with
Section 5(a)(vi), and (C) items listed in Part I to Schedule A which
shall be released or modified to comply with Section 5(a)(vi) not
later than 10 business days after the date hereof, at all times
thereafter during the term hereof, all of Stockholder's Shares as set
forth on Part A of Schedule I hereto will be held by Stockholder, an
Affiliate of Stockholder, or by a nominee or custodian for the benefit
of Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any
liens, claims, understandings or arrangements that do not limit or
impair Stockholder's ability to perform his obligations under this
Agreement.
(v) No Solicitation. Stockholder shall comply
with the terms of Section 6.2 of the Merger Agreement.
(vi) Restriction on Transfer, Proxies and
Non-Interference. Except as expressly contemplated hereby, from and
after the date of this Agreement and ending as of the first to occur of
the Effective Time or the first anniversary of the Termination Date,
Stockholder shall not, and shall cause each of his Affiliates who
Beneficially Own any of Stockholder's Shares not to, directly or
indirectly, without the consent of Parent: (A) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding
with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or
all of his Shares, or any interest therein, (B) grant any proxies or
powers of attorney, deposit any or all of his Shares into a voting
trust or enter into a voting agreement with respect to his Shares, (C)
enter into any agreement or arrangement providing for any of the
actions described in clause (A) or (B) above, or (D) take any action
that could reasonably be expected to have the effect of preventing or
disabling Stockholder from performing his obligations under this
Agreement; provided, however, that after the occurrence of the
Termination Date, Stockholder may, in accordance with Section 4, sell
or tender any or all of his Shares, or take any of the other actions
described above, in connection with an Acquisition Proposal.
(vii) Further Assurances. From time to time, at
Parent's request and without further consideration, Stockholder shall
execute and deliver such additional documents as may be necessary or
desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
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(b) Parent and Sub hereby represent, warrant and covenant
to Stockholder as follows:
(i) Organization. Standing and Corporate Power.
Each of Parent and Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with adequate corporate power and authority to own its properties and
carry on its business as presently conducted. Each of Parent and Sub
has the corporate power and authority to enter into and perform all of
its obligations under this Agreement and to consummate the
transactions contemplated hereby.
(ii) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body
or authority is necessary for the execution of this Agreement by either
Parent or Sub and the consummation by Parent and Sub of the
transactions contemplated hereby, except where the failure to obtain
such consent, permit, authorization, approval or filing would not
interfere with its ability to perform its obligations hereunder, and
none of the execution and delivery of this Agreement by Parent or Sub,
the consummation by Parent or Sub of the transactions contemplated
hereby or compliance by Parent and Sub with any of the provisions
hereof shall (A) conflict with or result in any breach of any
applicable organizational documents applicable to Parent or Sub, (B) in
a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right
of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind
to which Parent or Sub is a party or by which Parent or Sub or any of
Parent's or Sub's properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to Parent or Sub or any of Parent's or Sub's
properties or assets, in each such case except to the extent that any
conflict, breach, default or violation would not interfere with the
ability of Parent or Sub to perform its obligations hereunder.
(iii) Execution. Delivery and Performance by
Parent and Sub. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Boards of Directors of Parent and
Sub, and each of Parent and Sub has taken all other actions required
by law, its certificate of incorporation and its by-laws to consummate
the transactions contemplated by this Agreement. This Agreement
constitutes the valid and binding obligations of Parent and Sub and is
enforceable in accordance with its terms, except as enforceability may
be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally.
(c) The Company hereby represents and warrants to Parent
and Sub that the Board of Directors of the Company has approved the terms of
this Agreement and the transactions contemplated herein and such approval is
sufficient to render inapplicable to this Agreement and the
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transactions contemplated herein the provisions of Section 203 of the Delaware
General Corporation Law.
6. Stop Transfer. From and after the date of this Agreement and
ending as of the first to occur of the Effective Time or the first anniversary
of the Termination Date, Stockholder will not request that the Company register
(and the Company agrees not to register) the transfer (book-entry or otherwise)
of any certificate or uncertificated interest representing any of Stockholder's
Shares, except as otherwise contemplated hereby, including, without limitation,
the proviso contained in Section 5(a)(vi).
7. Recapitalization. In the event of a stock dividend or
distribution, or any change in the Shares by reason of any split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall include, without limitation, all such stock dividends and distributions
and any shares into which or for which any or all of the Shares may be changed
or exchanged as may be appropriate to reflect such event.
8. Stockholder Capacity. Except as set forth 5(a)(v), Stockholder
does not make any agreement or understanding herein in his capacity as a
director or officer of the Company and nothing herein shall limit or affect any
action taken by Stockholder in such capacity.
9. Merger Agreement and Options. Stockholder hereby consents and
agrees to the treatment of Options Beneficially Owned by Stockholder or his
Affiliates as set forth in the Merger Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Amendments. Waivers. Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto; provided that all of the provisions of this Agreement other than
Section 5(c), Section 6 and this Section 10(b) may be amended without the
consent of the Company.
(c) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
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(i) if to Parent or Sub, to:
c/o International Home Foods, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Telecopy: 000-000-0000
with copies to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telecopy: 000-000-0000
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: A. Xxxxxxx Xxxxx
Telecopy: 000-000-0000
(ii) if to the Company, to:
Grist Mill Co.
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx
Telecopy: 000-000-0000
with a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
(iii) if to Stockholder, to:
Xxxx X. Xxxxxxxx
Grist Mill Co.
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy: 000-000-0000
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with a copy to:
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(d) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(e) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by a Stockholder of any covenants or
agreements contained in this Agreement will cause the Parent and Sub to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that in the event of
any such breach the Parent or Sub shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which they may be entitled, at law or
in equity.
(f) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and 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.
(g) No Waiver. The failure of any party hereto to
exercise any 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.
(h) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto; provided that, in the event of
Stockholder's death, the benefits and obligations of Stockholder hereunder shall
inure to his successors and heirs.
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(i) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(j) Jurisdiction. Each party hereby irrevocably submits
to the exclusive jurisdiction of the Court of Chancery in the State of Delaware
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 therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph and shall
not be deemed to be a general submission to the jurisdiction of said Court or in
the State of Delaware 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) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(1) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement. This Agreement
shall not be effective as to any party hereto until such time as this Agreement
or a counterpart thereof has been executed and delivered by each party hereto.
(m) Trust Funds. In the event that any party hereto
should receive any funds that are to be paid to another party pursuant to the
terms of this Agreement, then the receiving party shall hold such funds in trust
for the benefit of the party entitled to receive such funds and shall promptly
pay such funds to the party entitled to receive such funds in accordance with
this Agreement.
11. Termination. This Agreement shall terminate without any
further action on the part of any party hereto upon the occurrence of a
termination of the Merger Agreement pursuant to Section 8.1(a), Section 8.1(f),
Section 8.1(g), Section 8.1(b), Section 8.1(l) or, if at the time of the
termination of the Merger Agreement there has been no public statement related
to an Acquisition Proposal, Section 8.1(j) or Section 8.1(k). Upon such
termination, this Agreement shall forthwith become void and of no further force
or effect.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on this 10th day of March, 1998.
PARENT: IHF/GM HOLDING CORPORATION
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Xxxxxx X. Xxxxx
Vice President
SUB: IHF/GM ACQUISITION CORPORATION
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Xxxxxx X. Xxxxx
Vice President
COMPANY: GRIST MILL CO.
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Xxxx X. Xxxxxxxx
President and Chief Executive Officer
STOCKHOLDER:
/s/ XXXX X. XXXXXXXX
-----------------------------------------
Xxxx X. Xxxxxxxx
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ACKNOWLEDGMENT AND CONSENT OF SPOUSE
Xxxxx Xxxxxxxx, the spouse of Stockholder, hereby joins in the
execution of this Agreement for the purpose of acknowledging that any ownership
interest she may have in the Shares and Options Beneficially Owned by
Stockholder is subject to the terms of this Agreement to the same extent as if
she were a "Stockholder" hereunder, and hereby consents to the forgoing.
/s/ XXXXX XXXXXXXX
-----------------------------------------
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SCHEDULE A
Part I
403,899 Shares
* 45,000 of such Shares are owned by Stockholder as a tenant in
common and as a result Stockholder's spouse and Stockholder
share voting and investment control over such shares.
* Excludes 24,645 Shares owned by the Grist Mill Co. Employee
Retirement Savings Plan and Trust for the benefit of
Stockholder.
Part II
245,000 Options as follows:
(i) 50,000 Options with an exercise price of $7.875 per share,
having an expiration date of July 1, 1998;
(ii) 75,000 Options with an exercise price of $8.625 per share,
having an expiration date of May 26, 2000;
(iii) 50,000 Options with an exercise price of $6.563 per share,
having an expiration date of May 22, 2001;
(iv) 70,000 Options with an exercise price of $6.000 per share,
having an expiration date of October 28, 2002.
A-1
