Exhibit (c)(2)
EXECUTION COPY
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STOCKHOLDERS AGREEMENT
BY AND AMONG
KONINKLIJKE AHOLD N.V.,
AHOLD ACQUISITION, INC.
AND
THE STOCKHOLDERS LISTED ON EXHIBIT 1 HERETO
Dated as of March 9, 1999
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TABLE OF CONTENTS
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Page
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1. Definitions..............................................................................................1
2. Provisions Concerning Company Stock......................................................................1
3. Purchase Right...........................................................................................2
4. Representations and Warranties of the Stockholders.......................................................3
(a) Ownership of Shares.............................................................................3
(b) Power; Binding Agreement........................................................................3
(c) No Conflicts....................................................................................3
(d) No Finder's Fees................................................................................3
(e) No Encumbrances.................................................................................4
(f) Reliance by Parent..............................................................................4
5. Representations and Warranties of Parent and Sub.........................................................4
(a) Due Organization, etc...........................................................................4
(b) No Conflicts....................................................................................4
(c) Investment Intent...............................................................................4
6. Covenants of the Stockholders............................................................................5
(a) No Solicitation.................................................................................5
(b) Restriction on Transfer, Proxies and Non-Interference...........................................5
(c) Waiver of Appraisal Rights......................................................................5
(d) Stop Transfer; Changes in Shares................................................................5
7. Fiduciary Duties.........................................................................................6
8. Miscellaneous............................................................................................6
(a) Further Assurances..............................................................................6
(b) Entire Agreement................................................................................6
(c) Certain Events..................................................................................6
(d) Assignment......................................................................................6
(e) Amendments, Waivers, Etc........................................................................6
(f) Notices.........................................................................................6
(g) Severability....................................................................................8
(h) Specific Performance............................................................................8
(i) Remedies Cumulative.............................................................................8
(i)
(j) No Waiver.......................................................................................8
(k) No Third Party Beneficiaries....................................................................8
(l) Governing Law...................................................................................8
(m) Submission to Jurisdiction; Waiver of Jury Trial................................................8
(n) Descriptive Headings............................................................................9
(o) Counterparts....................................................................................9
9. Termination..............................................................................................9
10. Limited Liability of Partners...................................................................9
(ii)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement") dated as of March 9, 1999,
among KONINKLIJKE AHOLD N.V., a company organized under the laws of The
Netherlands ("Parent"), AHOLD ACQUISITION, INC., a company organized under the
laws of Delaware and an indirect wholly owned subsidiary of Parent ("Sub"), and
the other parties signatory hereto (individually, a Stockholder and,
collectively, the "Stockholders").
W I T N E S S E T H:
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WHEREAS, prior to entering into this Agreement, Parent, Sub and SMG-II
Holdings Corporation, a company organized under the laws of Delaware (the
"Company"), entered into an Agreement and Plan of Merger (such agreement, the
"Merger Agreement"), pursuant to which Sub will be merged with and into the
Company (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
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(a) "Company Stock" shall mean, collectively, each of the Class A
Common Stock, par value $0.01 per share, of the Company, the Class B Common
Stock, par value $0.01 per share, of the Company, the Series A Preferred Stock,
par value $0.01 per share, of the Company, the Series B Preferred Stock par
value $0.01 per share, of the Company and the Series C Preferred Stock, par
value $0.01 per share, of the Company.
(b) Capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. Provisions Concerning Company Stock. Each Stockholder hereby
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agrees that during the period commencing on the date hereof and continuing until
the first to occur of (i) the Effective Time, (ii) the last date the Stock
Option is exercisable pursuant to Section 3 and (iii) the termination date set
forth in Section 9, at any meeting of the holders of any class or classes of
Company Stock, however called, or in connection with any written consent of the
holders of any class or classes of Company Stock, such Stockholder shall vote
(or cause to be voted) the number of shares of Company Stock set forth opposite
such Stockholder's name on Exhibit I hereto (the "Existing Shares" and, together
with any shares of Company Stock acquired by such Stockholder after the date
hereof and prior to the termination of this Agreement whether upon the exercise
of
options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise and acquired by such Stockholder solely in its capacity as a
stockholder, such shares, with respect to such Stockholder or any of its
transferees, the "Shares"), and any other shares of Company Stock owned by such
Stockholder whether issued, heretofore owned or hereafter acquired, (x) in favor
of the Merger, and the approval of the terms of the Merger Agreement and each of
the other transactions contemplated by the Merger Agreement and this Agreement
and any actions required in furtherance thereof; (y) against any action,
transaction or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this Agreement; and (z) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement): (A) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or any of its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or any of its subsidiaries; (C) (1)
any change in a majority of the Persons who constitute the board of directors of
the Company; (2) any change in the present capitalization of the Company or any
amendment of Company's Certificate of Incorporation or By-laws; (3) any other
material change in the Company's corporate structure or business; or (4) any
other action involving the Company or any of its subsidiaries which is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by this
Agreement and the Merger Agreement. None of the Stockholders shall enter into
any agreement or understanding with any Person the effect of which would be to
violate the provisions and agreements contained in this Section 2.
3. Purchase Right. Each Stockholder hereby grants to Sub an
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irrevocable option (the "Stock Option") to purchase the Shares at a purchase
price (the "Purchase Price") equal to the Applicable Merger Consideration until
the termination date set forth in Section 9. Until the termination date set
forth in Section 9, if the Merger Agreement is terminated in accordance with its
terms (other than as a result of a material breach of any representation,
warranty, obligation, covenant, agreement or condition of the Merger Agreement
by Parent or Sub), the Stock Option shall become exercisable, in whole but not
in part, and remain exercisable until the date which is 60 days after the date
of the termination of the Merger Agreement, but shall not be exercisable in each
case unless: (x) all waiting periods under the HSR Act, required for the
purchase of Stock Option upon such exercise shall have expired or been waived,
and (y) there shall not then be in effect any preliminary or final injunction or
other order issued by any court or governmental, administrative or regulatory
agency or authority prohibiting the exercise of the Stock Option pursuant to
this Agreement. Provided that this Agreement has not been terminated, in the
event that the Stock Option is not exercisable because the circumstances
described in clauses (x) and (y) do not exist, then the Stock Option shall be
exercisable for the 60 day period commencing on the date that the circumstances
set forth in clauses (x) and (y) do exist. In the event that Parent wishes to
exercise the Stock Option, Parent shall send a written notice to each
Stockholder identifying the place for the closing of such purchase at least
three business days prior to such closing.
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4. Representations and Warranties of the Stockholders. Each
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Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. Such Stockholder is the record and
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beneficial owner of the number and class of Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto. Such Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Sections 2 and 3 hereof, 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
Existing Shares set forth opposite Stockholder's name on Schedule I hereto, with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Stockholder has the legal
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capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholders agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding agreement of such Stockholder, enforceable
against such 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
such Stockholder is trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby.
(c) No Conflicts. Except for (i) filings and approvals under the HSR
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Act or the Antitrust Laws, if applicable, (A) 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 such Stockholder
and the consummation by such Stockholder of the transactions contemplated hereby
and (B) none of the execution and delivery of this Agreement by such
Stockholder, the consummation by such Stockholder of the transactions
contemplated hereby or compliance by such Stockholder with any of the provisions
hereof shall (1) conflict with or result in any breach of any applicable
organizational documents applicable to such Stockholder, (2) 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 any kind to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound, or
(3) violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
(d) No Finder's Fees. Except as disclosed pursuant to the Merger
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Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
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(e) No Encumbrances. The Shares of such Stockholder and the
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certificates representing the Shares of such Stockholder are now, and at all
times during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such 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 such
encumbrances or proxies arising hereunder. The transfer by such Stockholder of
the Shares of such Stockholder to Sub hereunder shall pass to and
unconditionally vest in Sub good and valid title to all Shares, free and clear
of all claims, liens, restrictions, security interests, pledges, limitations and
encumbrances whatsoever, other than any such encumbrances created by Sub.
(f) Reliance by Parent. Such Stockholder understands and acknowledges
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that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of this
Agreement.
5. Representations and Warranties of Parent and Sub. Parent and Sub
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hereby represent and warrant to each Stockholder as follows:
(a) Due Organization, etc. Each of Parent and Sub is a corporation
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duly organized and validly existing under the laws of the jurisdiction of its
incorporation. Each of Parent and Sub has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Parent and Sub
have been duly authorized by all necessary corporate action on the part of
Parent and Sub and, assuming its due authorization, execution and delivery by
each Stockholder, constitutes a legal, valid and binding obligation of each of
Parent and Sub, enforceable against each of Parent and Sub in accordance with
its terms.
(b) No Conflicts. Except for (i) filings and approvals under the HSR
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Act or the Antitrust Laws, if applicable, (A) 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 Parent and Sub and
the consummation by Parent and Sub of the transactions contemplated hereby and
(B) none of the execution and delivery of this Agreement by Parent or Sub, the
consummation by Parent and Sub of the transactions contemplated hereby shall (1)
conflict with or result in any breach of the organizational documents of Parent
or Sub, (2) 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 any kind to which Parent or Sub is a party
or by which Parent or Sub or any of their respective properties or assets may be
bound, or (3) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to Parent or Sub or any of their
respective properties or assets.
(c) Investment Intent. The purchase of Shares from the Stockholders
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pursuant to this Agreement is for the account of Sub for the purpose of
investment and not with a view to
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or for sale in connection with any distribution thereof within the meaning of
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
6. Covenants of the Stockholders. Each Stockholder covenants and
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agrees as follows:
(a) No Solicitation. Beginning on the date hereof and ending on the
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last date the Stock Option is exercisable pursuant to Section 3 hereof, such
Stockholder shall not, in its capacity as such, directly or indirectly,
initiate, solicit (including by way of furnishing information), encourage or
respond to or take any other action knowingly to facilitate, any inquiries or
the making of any proposal by any Person (other than Parent or any affiliate of
Parent) with respect to the Company that constitutes or reasonably may be
expected to lead to, an Acquisition Proposal, or enter into or maintain or
continue discussions or negotiate with any Person in furtherance of such
inquiries or to obtain any Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, or authorize or permit any Person acting on behalf of the
Stockholder to do any of the foregoing. If the Stockholder receives any inquiry
or proposal regarding any Acquisition Proposal, the Stockholder shall promptly
inform Parent of that inquiry or proposal and the details thereof.
(b) Restriction on Transfer, Proxies and Non-Interference. Beginning
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on the date hereof and ending on the last date the Stock Option is exercisable
pursuant to Section 3 hereof, such Stockholder shall not (i) directly or
indirectly, 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, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Shares of such Stockholder or any interest therein; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney, deposit
any Shares of such Stockholder into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. Such Stockholder hereby irrevocably
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waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(d) Stop Transfer; Changes in Shares. Such Stockholder agrees with,
--------------------------------
and covenants to, Parent that such Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares of such Stockholder,
unless such transfer is made in compliance with this Agreement. In the event of
a stock dividend or distribution, or any change in any class of Company Stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares of such Shareholder as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares of
such Stockholder may be changed or exchanged and the Purchase Price shall be
appropriately adjusted. Such Stockholder shall be entitled to receive any cash
dividend paid by
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the Company in respect of the Shares of such Stockholder during the term of this
Agreement until the Effective Time or purchased hereunder.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to
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the contrary, the covenants and agreements set forth herein shall not prevent
any of the Stockholder's designees serving on the Company's Board of Directors
from taking any action, subject to the applicable provisions of the Merger
Agreement, while acting in the capacity of a director of the Company.
8. Miscellaneous.
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(a) Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
(b) Entire Agreement. This Agreement and the Merger Agreement
----------------
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understanding, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. Each Stockholder agrees that this Agreement and
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the obligations hereunder shall attach to the Shares of such Stockholder and
shall be binding upon any Person to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(d) Assignment. This Agreement shall not be assigned by operation of
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law or otherwise without the prior written consent of the other party, provided
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that Parent may assign, at its sole discretion, its rights and obligations
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hereunder to any direct or indirect wholly-owned subsidiary of Parent, although
no such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
(e) 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 relevant
parties with respect to any one or more Stockholders hereto, provided that
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Schedule I hereto may be supplemented by Parent by adding the name and other
relevant information concerning any stockholder of the Company who agrees to be
bound by the terms of this Agreement without the agreement of any other party
hereto, and thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
(f) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received
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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:
If to the Stockholders: At the addresses set forth on Schedule I hereto
copies to:
SMG-II Holdings Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxxxxxxxx, Esq.
If to Parent or Sub:
c/o Koninklijke Ahold N.V.
Xxxxxx Xxxxxxxx 0
0000 XX Xxxxxxx
The Netherlands
Telecopier: 00-00-000-00-00
Attention: Xxxx X. Butzelaar, Esq.
Ton van Tielraden, Esq.
copy to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
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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.
(g) Severability. Whenever possible, each provision or portion of any
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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.
(h) Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it 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 aggrieved party
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 it may be entitled, at law or in equity.
(i) Remedies Cumulative. All rights, powers and remedies provided
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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.
(j) No Waiver. The failure of any party hereto to exercise any right,
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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.
(k) No Third Party Beneficiaries. This Agreement is not intended to
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be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(l) Governing Law. This Agreement, and the legal relations between
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the parties hereto, shall be governed and construed in accordance with the laws
of the State of New York, applicable to agreements executed and to be performed
solely within such State.
(m) Submission to Jurisdiction; Waiver of Jury Trial. The parties
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hereby submit to the jurisdiction of the United States District Court for the
Southern District of New York and of any New York State Court sitting in the
City of New York for purposes of all legal proceedings which may arise hereunder
or under any of the other documents entered into in connection herewith. The
parties irrevocably waive, to the fullest extent permitted by law, any objection
which it may have or hereafter have to the laying of the venue of any such
proceeding brought in
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such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum. The parties hereby consent to process
being served in any such proceeding by the mailing of a copy thereof by
registered or certified mail, postage prepaid, to their respective addresses
specified in Section 8(f) or in any other manner permitted by law. THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER DOCUMENTS ENTERED INTO
IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OF ANY PARTY.
(n) 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.
(o) Counterparts. This Agreement may be executed in two or more
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
9. Termination. This Agreement shall terminate, and none of Parent,
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Sub or any Stockholder shall have any rights or obligations hereunder and this
Agreement shall become null and void and have no effect upon the earlier of (i)
termination of the Merger Agreement pursuant to Section 8.1 thereof (unless such
Stockholder breaches any of its obligations hereunder in any material respect or
if the Merger Agreement is terminated as the result of a material breach of any
representation, warranty, obligation, covenant, agreement or condition of the
Merger Agreement by the Company) and (ii) the election by such Stockholder at
any time after February 15, 2000 to terminate this Agreement, except nothing in
this Section 8 shall relieve any party of liability for breach of this
Agreement.
10. Limited Liability of Partners. Notwithstanding any other
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provision of this Agreement, neither the general partner nor the limited
partners nor any future general or limited partner of any Stockholder shall have
any personal liability for performance of any obligation of such Stockholder
under this Agreement in excess of the respective capital contribution of such
general partner and limited partners to such Stockholder.
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IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
KONINKLIJKE AHOLD N.V.
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Title: Executive Vice President
AHOLD ACQUISITION, INC.
By: /s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Title: President
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MLCP ASSOCIATES L.P. NO. II
By XXXXXXX XXXXX CAPITAL PARTNERS,
INC. as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
MERCHANT BANK L.P. NO. IV
By XXXXXXX XXXXX MBP, INC.,
as General Partner
By /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
Title: President
XXXXXXX XXXXX KECALP, L.P. 1989
By KECALP INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX KECALP, L.P. 1991
By KECALP INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ U. Xxxxx X. Xxxxxxxx
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Name: U. Xxxxx X. Xxxxxxxx
Title: Investment Officer
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MERCHANT BANKING L.P. NO. 1
By XXXXXXX XXXXX MBP INC., as
General Partner
By /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
Title: President
XXXXXXX XXXXX KECALP L.P. 1987
By KECALP INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. B-X, L.P.
By XXXXXXX XXXXX LBO PARTNERS
NO. B-II, L.P., as General Partner
By XXXXXXX XXXXX CAPITAL PARTNERS,
INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
ML OFFSHORE LBO PARTNERSHIP NO. B-X
By XXXXXXX XXXXX LBO PARTNERS
NO. B-II, L.P., as Investment
General Partner
By XXXXXXX XXXXX CAPITAL PARTNERS,
INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Vice President
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XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. IX, L.P.
By XXXXXXX XXXXX LBO PARTNERS
NO. II, L.P., as General Partner
By XXXXXXX XXXXX CAPITAL PARTNERS,
INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
ML OFFSHORE LBO PARTNERSHIP NO. IX
By XXXXXXX XXXXX LBO PARTNERS NO.
II, L.P., as Investment
General Partner
By XXXXXXX XXXXX CAPITAL PARTNERS,
INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
ML EMPLOYEES LBO PARTNERSHIP NO. I, L.P.
By ML EMPLOYEES LBO MANAGERS,
INC., as General Partner
By /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
ML IBK POSITIONS, INC.
By /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
-13-
EQUITABLE DEAL FLOW FUND, L.P.
By EQUITABLE MANAGED ASSETS, L.P.,
as General Partner
By THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By /s/ U. Xxxxx X. Xxxxxxxx
------------------------------
Name: U. Xxxxx X. Xxxxxxxx
Title: Investment Officer
XXXXX X. XXXXXX, INDIVIDUAL
STOCKHOLDER
By /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
-14-
EXHIBIT I
To Stockholders Agreement
Number of Shares of Class
of Company Stock held by
Name of Stockholder Class of Company Stock Stockholder
----------------------------------------- ------------------------------ -----------------------------
Xxxxxxx Xxxxx Capital Class A Common Stock 488,704.8
Appreciation Partnership No. IX, L.P.
ML Offshore LBO Partnership No. IX Class A Common Stock 12,424.7
ML Employees LBO Partnership No. I, L.P. Class A Common Stock 12,148.6
ML IBK Positions, Inc. Class A Common Stock 21,258.9
Merchant Banking L.P. No. 1 Class A Common Stock 8,119
Xxxxxxx Xxxxx KECALP L.P. 1987 Class A Common Stock 7,344
The Equitable Life Assurance Society of Class B Common Stock 150,000
the United States
Equitable Deal Flow Fund, L.P. Class B Common Stock 150,000
Xxxxxxx Xxxxx Capital Series A Preferred Stock 133,043
Appreciation Partnership No. B-X, L.P.
ML Offshore LBO Partnership No. B-X Series A Preferred Stock 40,950
EXHIBIT I
Page 2
Number of Shares of Class
of Company Stock held by
Name of Stockholder Class of Company Stock Stockholder
----------------------------------------- ------------------------------ -----------------------------
MLCP Associates L.P. No. II Series A Preferred Stock 1,740
ML IBK Positions, Inc. Series A Preferred Stock 46,344.5
Merchant Bank L.P. No. IV Series A Preferred Stock 3,779
Xxxxxxx Xxxxx KECALP, L.P. 1989 Series A Preferred Stock 7,000
Xxxxxxx Xxxxx KECALP, L.P. 1991 Series A Preferred Stock 3,874.5
The Equitable Life Assurance Society of Series B Preferred Stock 84,134
the United States
Equitable Deal Flow Fund, L.P. Series B Preferred Stock 84,135
Xxxxx Xxxxxx Series C Preferred Stock 8,520
