EXECUTION COPY
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VOTING AGREEMENT
between
XXXX XXXXX, INC.
and
UNIVERSITY OF UTAH
Dated as of May 11, 1997
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VOTING AGREEMENT (this "Agreement") dated as of May 11, 1997, between Xxxx
Xxxxx, Inc., a Delaware corporation ("Xxxx Xxxxx"), and the University of Utah
(the "Stockholder").
WHEREAS, Xxxx Xxxxx and Xxxxx'x Food & Drug Centers, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Reorganization and Merger dated as of the date hereof (as the same may be
amended or supplemented in a manner not adverse to the Stockholder, the
"Reorganization Agreement"; capitalized terms used but not defined herein shall
have the meanings set forth in the Reorganization Agreement) providing for the
formation of a new Delaware holding company, Xxxxx-Xxxxx Holdco, Inc.
("Holdings"), the formation of two subsidiaries wholly-owned by Holdings ("Xxxx
Xxxxx Merger Sub, Inc." and "Xxxxx'x Merger Sub, Inc.") and the simultaneous
merger of Xxxx Xxxxx Merger Sub, Inc. with and into Xxxx Xxxxx and Xxxxx'x
Merger Sub, Inc. with and into the Company (the "Merger") so that each of Xxxx
Xxxxx and the Company become wholly-owned subsidiaries of Holdings, upon the
terms and subject to the conditions set forth in the Reorganization Agreement;
WHEREAS, pursuant to the Merger the Common Stock (as defined below) will be
converted into shares of common stock, par value $.01 per share, of Holdings and
each share of the Series I Preferred Stock (as defined below) shall be converted
into the right to receive thirty-three and one-third cents ($.33 1/3) (the
"Preferred Consideration");
WHEREAS, simultaneously with the execution hereof, Xxxx Xxxxx is entering
into voting agreements (the "Other Voting Agreements", and together with this
Agreement, the "Voting Agreements"), with each of the other stockholders of the
Company named in Schedule A attached hereto (the "Other Stockholders" and
together with the Stockholder, the "Stockholders");
WHEREAS, immediately prior to the Effective Time, Xxxx Xxxxx will assign
each of the Voting Agreements and all of its rights, interests and obligations
hereunder and thereunder to Holdings;
WHEREAS , the Stockholder and each Other Stockholder owns beneficially and
(except as set forth on Schedule A attached hereto) of record the number of
shares of Class A Common Stock, par value $.01 per share, of the Company (the
"Class A Common Stock"), of Class B Common Stock, par value $.01 per share, of
the Company (the "Class B Common Stock"), of Class C Common Stock, par value
$.01 per share, of the Company (the "Class C Common Stock" and, together with
the Class A Common Stock and the Class B Common Stock, the "Common Stock") and
of Series I Preferred Stock, par value $.01 per share, of the Company (the
"Series I Preferred Stock") set forth opposite his or its name on Schedule A
attached hereto (such shares of Common Stock and of Series I Preferred Stock,
together with any other shares of capital stock of the Company acquired
(including, without limitation, through the exercise of Options or Warrants or
by reason of any split, reclassification, stock dividend or other distribution
with respect to the capital stock of the Company) by such Stockholder or such
Other Stockholder after the date hereof and during the term of the Voting
Agreements, being collectively referred to herein as the "Subject Shares");
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WHEREAS, the Common Stock and the Series I Preferred Stock set forth on
Schedule A attached hereto represent at least 50.1% of the voting power of the
issued and outstanding shares of capital stock of the Company entitled to vote
on each of the matters set forth in Section 3 hereof; and
WHEREAS, as a condition to its willingness to enter into the Reorganization
Agreement, Xxxx Xxxxx has required that the Other Stockholders enter into the
Other Voting Agreements and that the Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Xxxx Xxxxx to enter into, and in consideration of
its entering into, the Reorganization Agreement, and in consideration of the
premises and the representations, warranties and agreements contained herein,
the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Xxxx Xxxxx as of the date hereof in respect of
itself as follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder (or in the case of a Stockholder which is a
trust, by the trustee on behalf of such trust or in the case of a
Stockholder which is a partnership, by a general partner on behalf of such
partnership) and constitutes a valid and binding obligation of the
Stockholder enforceable in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not, conflict
with, or result in any violation of, or default (with or without notice or
lapse of time or both) under any provision of, any trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or to the Stockholder's property or assets.
No trust which is a Stockholder requires the consent of any beneficiary to
the execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b) The Subject Shares, Options and Warrants. The Stockholder is the
beneficial and (except as set forth on Schedule A attached hereto) record
owner of, and has good and marketable title to, the Subject Shares, options
and warrants set forth opposite the Stockholder's name on Schedule A
attached hereto, free and clear of any claims, liens, encumbrances and
security interests whatsoever (other than as set forth on Schedule A
attached hereto). The Stockholder does not own, of record or beneficially,
any shares of capital stock of the Company other than the Subject Shares
and the shares of Common Stock subject to any options or warrants set forth
opposite the Stockholder's name on Schedule A attached hereto. The
Stockholder has the sole right to vote such Subject Shares, and none of
such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Subject
Shares,
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except as contemplated by this Agreement or as otherwise set forth on
Schedule A attached hereto.
2. Representations and Warranties of Xxxx Xxxxx. Xxxx Xxxxx hereby
represents and warrants to the Stockholder that Xxxx Xxxxx has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Xxxx Xxxxx, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of Xxxx
Xxxxx. This Agreement has been duly executed and delivered by Xxxx Xxxxx and
constitutes a valid and binding obligation of Xxxx Xxxxx enforceable in
accordance with its terms.
3. Covenants of the Stockholder. Until the termination of this Agreement in
accordance with Section 7 hereof, the Stockholder agrees as follows:
(a) Vote for the Merger. At any duly noticed meeting of stockholders
of the Company called to vote upon the Merger and the Reorganization
Agreement or at any adjournment thereof or in any other circumstances upon
which a vote, consent or other approval (including by written consent) with
respect to the Merger and the Reorganization Agreement is sought, the
Stockholder shall, including by initiating a written consent solicitation
if requested by Xxxx Xxxxx, vote (or cause to be voted) the Subject Shares
in favor of the Merger, the adoption by the Company of the Reorganization
Agreement and the approval of the terms thereof and, to the extent
presented to the stockholders of the Company for a vote, each of the other
transactions contemplated by the Reorganization Agreement. The Stockholder
hereby waives any appraisal rights granted pursuant to Section 262 of the
General Corporation Law of the State of Delaware (the "DGCL") (or any
successor provision) to which it may otherwise be entitled as a result of
the Merger or the other transactions contemplated by the Reorganization
Agreement.
(b) Vote Against Acquisition Proposals. At any duly noticed meeting of
stockholders of the Company or at any adjournment thereof or in any other
circumstances upon which the Stockholder's vote, consent or other approval
is sought, the Stockholder shall be present (in person or by proxy) and
shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Reorganization Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or winding up of
or by the Company or any other Acquisition Proposal as such term is defined
in the Reorganization Agreement relating to the Company (an "Acquisition
Proposal") or (ii) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify the
Merger, the Reorganization Agreement or any of the other transactions
contemplated by the Reorganization Agreement or change in any manner the
voting rights of any class of
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capital stock of the Company. Subject to Section 9, the Stockholder further
agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) Transfer of Subject Shares, Options and Warrants. Except pursuant
to this Agreement and except as provided in the immediately succeeding
sentence of this Section 3(c), the Stockholder agrees not to (i) Transfer,
or enter into any contract, option or other arrangement (including any
profit sharing arrangement) with respect to the Transfer of, the Subject
Shares, any option or warrant or any shares of Common Stock subject to any
option or warrant to any person, other than pursuant to the terms of the
Merger, (ii) enter into any voting arrangement, whether by proxy,
power-of-attorney, voting agreement, voting trust or otherwise, in
connection with, directly or indirectly, any Acquisition Proposal or (iii)
convert (or cause to be converted) any of the Subject Shares consisting of
Class A Common Stock into Class B Common Stock, in whole or in part, and
agrees not to commit or agree to take any of the foregoing actions.
Notwithstanding the foregoing, the Stockholder shall have the right (i) for
estate planning purposes, to Transfer Subject Shares to a transferee if and
only if such Transfer will not result in the automatic conversion of Class
A Common Stock or Class C Common Stock to Class B Common Stock or the
reduction in the number of votes allocated to the Series I Preferred Stock
and only following the due execution and delivery to Xxxx Xxxxx by each
transferee of a legal, valid and binding counterpart to this Agreement and
(ii) to pledge such Subject Shares for purposes of securing customary
margin or similar loans (and other customary steps related thereto,
including transferring the certificate evidencing the shares into the name
of the lender or its nominee) if and only if, in the case of the Class A
Common Stock or the Series I Preferred Stock, such pledge will not result
in the automatic conversion of Class A Common Stock to Class B Common Stock
or the reduction in the number of votes allocated to the Series I Preferred
Stock and only following the delivery to Xxxx Xxxxx of an acknowledgment by
the pledgee of the existence of this Agreement.
(d) No Solicitation. During the term of this Agreement, the
Stockholder shall not, nor shall it permit any of its Affiliates or any
director, officer, employee, investment banker, attorney or other adviser
or representative of any of the foregoing to, (i) directly or indirectly
solicit, initiate or encourage the submission of, any Acquisition Proposal
or (ii) subject to the terms of Section 9, directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Acquisition Proposal.
(e) Stockholder Assistance. Until the Merger is consummated or the
Reorganization Agreement is terminated, the Stockholder shall use all
reasonable efforts to assist and cooperate with the other parties to
consummate and make effective, in the most expeditious manner practicable,
the Merger and the other transactions contemplated by the Reorganization
Agreement, subject, in each case to the requirements of applicable laws,
regulations, decrees or other judicial process and subject to the fiduciary
obligations of any of the Stockholders who is also an officer or director
of the Company in his capacity as such.
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4. Confidentiality. The Stockholder hereby agrees to be bound, to the same
extent as the Company is bound, by the terms and conditions of the
Confidentiality Agreement, dated as of March 26, 1997 by and between Xxxx Xxxxx
and the Company.
5. Further Assurances. The Stockholder will, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Xxxx Xxxxx or Holdings may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that Xxxx Xxxxx may assign, in its
sole discretion, any or all of its rights, interests and obligations hereunder
to Holdings or to any direct or indirect wholly owned subsidiary of Xxxx Xxxxx.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective heirs,
successors and assigns.
7. Termination. This Agreement shall terminate upon the earlier of (a) the
18 month anniversary of the termination of the Reorganization Agreement or (b)
the Effective Time of the Merger; provided, however, that unless (x) the Company
is in material breach of its material obligations under the Reorganization
Agreement, (y) the Stockholder or any Other Stockholder is in material breach of
its material obligations under this Agreement or the Other Voting Agreements, as
the case may be or (z) a meeting of the Company's stockholders (or any
adjournment thereof) has been held to consider the Merger and the other
transactions contemplated by the Reorganization Agreement and the Xxxxx'x
Stockholder Approval was not obtained, this Agreement shall terminate at the
time the Reorganization Agreement is terminated (i) pursuant to Section 7.1 or
7.2(b) thereof, or (ii) by the Company (A) pursuant to Section 7.2(d) thereof or
(B) pursuant to Section 7.2(a) thereof (unless an Acquisition Proposal is
pending at the time of such termination) or (C) pursuant to Section 7.3 thereof.
8. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied
(which is confirmed) or sent by overnight courier (providing proof of
delivery) to Xxxx Xxxxx in accordance with the notification provision
contained in the Reorganization Agreement and to the Stockholder at its
address set forth on Schedule A attached hereto (or at such other address
for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words
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"include", "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation".
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto and other than Holdings, which is an
express beneficiary of this Agreement, any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware regardless of the
laws that might otherwise govern under applicable principles of conflicts
of law thereof.
(g) Public Announcements. The Stockholder will consult with Xxxx Xxxxx
and use reasonable efforts to agree upon the text of any press release,
before issuing any press release or otherwise making public statements with
respect to the transactions contemplated by this Agreement and the
Reorganization Agreement and shall not issue any such press release or make
any such public statement without Xxxx Xxxxx'x prior consent, which consent
shall not be unreasonably withheld, except as may be required by applicable
law (including requirements of stock exchanges and other similar regulatory
bodies).
(h) Severability. If any term, provision, covenant or restriction
herein, or the application thereof to any circumstance, shall, to any
extent, be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent
permitted by law, and the parties hereto shall reasonably negotiate in good
faith a substitute term or provision that comes as close as possible to the
invalidated and unenforceable term or provision, and that puts each party
in a position as nearly comparable as possible to the position each such
party would have been in but for the finding of invalidity or
unenforceability, while remaining valid and enforceable.
9. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
The Stockholder signs solely in its capacity as the record holder and beneficial
owner of, or the trustee of a trust whose beneficiaries are the beneficial
owners of, or the general partner of a partnership which is the
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beneficial owner of the Stockholder's Subject Shares or Options or Warrants and
nothing herein shall limit or affect any actions taken by the Stockholder in its
capacity as an officer or director of the Company to the extent specifically
permitted by the Reorganization Agreement. Nothing in this Agreement shall be
deemed to constitute a transfer of the beneficial ownership of the Subject
Shares by the Stockholder.
10. Enforcement. The parties agree, and the beneficiaries of each trust
which is a party hereto have agreed, that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed 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 court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will not
bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a Federal court sitting in the state of Delaware
or a Delaware state court, (iv) waives any right to trial by jury with respect
to any claim or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby and (v) appoints The Corporation Trust
Corporation as such party's agent for service of process in the State of
Delaware.
11. The Stockholder hereby acknowledges that it will receive the Preferred
Consideration in the Merger and hereby agrees to accept the Preferred
Consideration in exchange for the cancellation of its Series I Preferred Stock
and to take such further actions as Xxxx Xxxxx and the Company may request to
evidence such agreement.
(Signature page follows)
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IN WITNESS WHEREOF, each of Xxxx Xxxxx and the Stockholder has caused this
Agreement to be signed by its officer thereunto duly authorized and the
Stockholder as of the date first written above.
XXXX XXXXX, INC.
By: XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer and
President
UNIVERSITY OF UTAH
By: XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President for Administrative
Services
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SCHEDULE A/1
Shares of Shares of
Shares of Shares of Shares of capital stock capital stock
Class A Class B Series I subject to subject to
Name Common Stock Common Stock Preferred Stock Options Warrants
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The Yucaipa Companies 200,000 1,842,555/1
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa Arizona Partners, L.P. 273,582
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa Smitty's Partners, L.P. 300,667
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
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1 No shares of Class C Common Stock have been issued. 1,842,555 shares of
non-voting Class C Common Stock are issuable upon exercise of the Yucaipa
Warrant.
A-1
SCHEDULE A/1
Shares of Shares of
Shares of Shares of Shares of capital stock capital stock
Class A Class B Series I subject to subject to
Name Common Stock Common Stock Preferred Stock Options Warrants
------------------------------------------------------------------------------------------------------------------------------------
Yucaipa Smitty's Partners II, L.P. 136,793
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Yucaipa SSV Partners, L.P. 1,340,772/2
c/o The Yucaipa Companies
00000 Xxxxx Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
University of Utah 2,267,731
c/o Treasurer
University of Utah
000 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, XX 00000
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2 Of this total, 660,000 shares are pledged to Xxxxxxx, Xxxxx & Co. for
collateral purposes in connection with a margin account.
A-2
SCHEDULE A/1
Shares of Shares of
Shares of Shares of Shares of capital stock capital stock
Class A Class B Series I subject to subject to
Name Common Stock Common Stock Preferred Stock Options Warrants
------------------------------------------------------------------------------------------------------------------------------------
Corporation of the President of the Church 2,000,010
of Xxxxx Xxxxxx of Latter-Day Saints
00 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx XX 00000
Xxxxxxx X. Xxxxx 648,666 5,141
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Xxxx X. Xxxxx 252,708
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
A-3
SCHEDULE A/1
Shares of Shares of
Shares of Shares of Shares of capital stock capital stock
Class A Class B Series I subject to subject to
Name Common Stock Common Stock Preferred Stock Options Warrants
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxx
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Dee Xxxx Xxxxx Marital Trust I 224,287 3,253,623
c/o Xxx X. Xxxxx
0000 Xxxxx Xxxx Xxxxxxx Xxxx.
Xxxx Xxxx Xxxx, XX 00000
Trust for the Children of Xxxxxxx X. Xxxxx 560,353
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
A-4
SCHEDULE A/1
Shares of Shares of
Shares of Shares of Shares of capital stock capital stock
Class A Class B Series I subject to subject to
Name Common Stock Common Stock Preferred Stock Options Warrants
------------------------------------------------------------------------------------------------------------------------------------
Trust for the Children of Xxxx X. Xxxxx 560,353/3
c/x Xxxxx'x Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
Trust for the Children of Xxxxxxx X. Xxxxx 483,952
c/o Smith's Food & Drug Centers, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
---------- --------- ---------- ---------- ---------
Total Shares 2,730,319 2,256,955 7,521,364 1,842,555
========== ========= ========== ========== =========
Total Voting Power 27,303,190 2,256,955 75,213,640
========== ========= ========== ========== =========
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3 The children of Xxxx X. Xxxxx have individual trusts of shares of Class A
Common Stock. Xxxx X. Xxxxx is the trustee and the trusts are as follows:
Xxxx Xxxxx Xxxxx Trust - 41,353 shares, Xxxxx Xxxxxx Xxxxx Trust - 28,670
shares and Xxxxxxx Xxx Xxxxx Trust - 28,670 shares.
A-5
