VOTING AND PAYMENT AGREEMENT
VOTING AGREEMENT, dated as of December 17, 1998 (this
"Agreement"), among PHAR MOR, INC., a Pennsylvania corporation
("Buyer"), and XXXXXX XXXXX (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, ndividually 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 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
XxxxXxxxxxxxxx, 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:
Xxxxxx Xxxxx
00 Xxxxxx Xxxxx
Xxxxx Xxxx, 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 partie 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 nd 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:
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Name: Xxxxxx Xxxxx
SCHEDULE I
HOLDER NUMBER OF SHARES
Xxxxxx Xxxxx 62,794
