1
EXHIBIT 99.2
TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of January 19, 1998 (the
"Agreement"), by and among Xxxxxxxxx'x Inc., a Delaware corporation
("Acquiror"), Locomotive Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Acquiror ("Newco"), and FS Equity Partners II, L.P.,
a California limited partnership (the "Stockholder").
WHEREAS, the Stockholder is the owner of 4,389,879 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Xxxxxxx Food and Drug Stores Company (the "Company");
WHEREAS, the Acquiror, Newco and the Company have entered into an
Agreement and Plan of Merger, dated as of the date hereof (as amended from time
to time, the "Merger Agreement"), which provides, among other things, that,
upon the terms and subject to the conditions therein, Newco will make a cash
tender offer (the "Offer") for all of the outstanding shares of Common Stock
and after expiration of the Offer will merge with the Company (the "Merger");
and
WHEREAS, as a condition to the willingness of Acquiror and Newco to
enter into the Merger Agreement, Acquiror has requested that the Stockholder
agree, and in order to induce Acquiror and Newco to enter into the Merger
Agreement, the Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
1. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to the Acquiror as follows:
a. The Stockholder is the sole record and beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which meaning will apply for all purposes of this
Agreement) of the Shares and there exist no liens, claims, security interests,
options, proxies, voting agreements, charges, obligations, understandings,
arrangements or other encumbrances of any nature whatsoever, except for
restrictions applicable thereto under federal and state securities laws
("Liens"), affecting the Shares.
2
b. The Shares and the certificates representing the
Shares are now and at all times during the term hereof will be held by the
Stockholder, or by a nominee or custodian for the benefit of the Stockholder
free and clear of all Liens, except for any Liens arising hereunder. Upon
transfer to Acquiror by the Stockholder of the Shares hereunder, Acquiror will
have good and marketable title to the Shares, free and clear of all Liens.
c. Except for the Shares, the Stockholder does not,
directly or indirectly, beneficially own or have any option, warrant or other
right to acquire any securities of the Company nor is the Stockholder subject
to any contract, commitment, arrangement, understanding or relationship that
allows or obligates it to vote or acquire any securities of the Company.
d. The Stockholder is a limited partnership duly formed,
validly existing and in good standing under the laws of California and has full
partnership power and authority to execute, deliver and perform this Agreement
and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Stockholder. This Agreement has been duly and validly executed and delivered
by the Stockholder and, assuming due authorization, execution and delivery by
Acquiror and Newco, constitutes a valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
e. The execution and delivery of this Agreement by the
Stockholder does not, and the performance by the Stockholder of its obligations
hereunder will not, constitute a violation of, conflict with, result in a
default (or an event which, with notice or lapse of time or both, would result
in a default) under, or result in the creation of any Lien on any Shares under,
(i) any material contract, commitment, agreement, partnership agreement,
understanding, arrangement or restriction of any kind to which the Stockholder
is a party or by which the Stockholder is bound, (ii) any material judgment,
writ, decree, order or ruling applicable to the Stockholder or (iii) any
material law applicable to the Stockholder.
f. To the Stockholder's knowledge, neither the execution
and delivery of this Agreement nor the performance by the Stockholder of its
obligations hereunder will require any consent, authorization or approval of,
filing with or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
state antitrust laws or the federal securities laws.
g. Except as set forth on Schedule 6.7 to the Merger
Agreement and except for actions instituted or, to the Stockholder's knowledge,
threatened after the date hereof
2
3
challenging or seeking to prevent, or which arise as a result, directly or
indirectly, of the consummation of the transactions contemplated by this
Agreement or the Merger Agreement and solely with respect to matters set forth
in this Section 1(g) in which the Stockholder or any of its partners or
employees is a party, (i) there are no material suits, claims, arbitrations,
mediations, actions or proceedings pending or, to the best of the Stockholder's
knowledge, threatened or, to the best of the Stockholder's knowledge,
investigations pending or threatened against the Company or the Subsidiary or
with respect to any material property or assets of either of them before any
Governmental Authority and (ii) neither the Company nor the Subsidiary, nor a
material amount of the property or assets of either of them, is subject to any
material order, judgment, injunction or decree.
h. As of the date hereof, except as set forth on
Schedule 6.24 to the Merger Agreement or in the Company SEC Filings filed prior
to the date hereof, since February 1, 1997, there have been no transactions,
agreements, arrangements or understandings between the Company or the
Subsidiary, on the one hand, and the Stockholder or any of its partners or
employees, on the other hand, that would be required to be disclosed under Item
404 of Regulation S-K under the Securities Act.
i. Neither the Company nor the Subsidiary has any
outstanding liabilities or obligations to the Stockholder or any of its
partners or employees that were not fully reflected or reserved against in the
Company Balance Sheet, except for immaterial travel and other expenses related
to service as a director and obligations relating to service as a director
(including indemnity obligations).
2. Representations and Warranties of Acquiror and Newco.
Acquiror and Newco jointly and severally represent and warrant to the
Stockholder as follows:
a. Each of Acquiror and Newco is duly organized and
validly existing and in good standing under the laws of the State of Delaware,
has the requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby, and has taken
all necessary corporate action to authorize the execution, deliver and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by each of Acquiror and Newco and constitutes the legal,
valid and binding obligation of each of Acquiror and Newco, enforceable against
each of Acquiror and Newco in accordance with its terms, except to the extent
that enforceability may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
b. The execution and delivery of this Agreement by each
of Acquiror and Newco does not, and the performance by each of Acquiror and
Newco of its obligations hereunder will not, constitute a violation of,
conflict with, or result in a default (or an event which, with notice or lapse
of time or both, would result in a default) under, its certificate of
incorporation or bylaws or any contract, commitment, agreement, understanding,
arrangement
3
4
or restriction of any kind to which Acquiror or Newco is a party or by which
Acquiror or Newco is bound or any judgment, writ, decree, order or ruling
applicable to Acquiror or Newco.
c. Neither the execution and delivery of this Agreement
nor the performance by each of Acquiror and Newco of its obligations hereunder
will violate any order, writ, injunction, judgment, law, decree, statute, rule
or regulation applicable to Acquiror or Newco or require any consent,
authorization or approval of, filing with, or notice to, any court,
administrative agency or other governmental body or authority, other than any
required notices or filings pursuant to the HSR Act, state antitrust laws or
the federal securities laws.
3. Tender of Shares.
a. Acquiror and Newco jointly and severally agree:
i. subject to the conditions of the Offer set
forth in Exhibit A to the Merger Agreement and the other terms and conditions
of the Merger Agreement, that Newco will commence the Offer within five (5)
Business Days (as defined in the Merger Agreement) after the execution of this
Agreement;
ii. subject to the conditions of the Offer set
forth in Exhibit A to the Merger Agreement and the other terms and conditions
of the Merger Agreement, that Newco will purchase all shares of Common Stock
tendered pursuant to the Offer as promptly as practicable following
commencement of the Offer and that Newco will consummate the Merger in
accordance with the terms of the Merger Agreement; and
iii. not to decrease the price per share to be
paid to the Company's stockholders in the Offer below $15.50 per share (the
"Tender Offer Price"). The provisions of Section 3(a) shall survive the
termination of this Agreement.
b. The Stockholder will (i) tender the Shares into the
Offer promptly, and in any event no later than the fifth Business Day following
the commencement of the Offer, or, if the Stockholder has not received the
Offer Documents by such time, within two Business Days following receipt of
such documents, and (ii) not withdraw any Shares so tendered (except in the
event the Stock Option is exercised). Upon the purchase of all the Shares
pursuant to the Offer in accordance with this Section 3, this Agreement will
terminate. The Stockholder will receive the same price per Share received by
other stockholders of the Company in the Offer with respect to Shares tendered
by it in the Offer. In the event that, notwithstanding the provisions of the
first sentence of this Section 3(b), any Shares are for any reason withdrawn
from the Offer or are not purchased pursuant to the Offer, such Shares will
remain subject to the terms of this Agreement. The Stockholder acknowledges
that Newco's obligation to accept for payment and pay for the Shares in the
Offer is subject to all the terms and conditions of the Offer. On the date the
Shares are accepted for payment and purchased
4
5
by Newco pursuant to the Offer, Newco or Acquiror, as the case may be, shall
make payment by wire transfer to the Stockholder of the purchase price for such
Shares to an account designated by the Stockholder in the Offer Documents.
c. The Stockholder hereby agrees to permit Acquiror to
publish and disclose in the Offer Documents and, if approval of the
stockholders of the Company is required under applicable law, the Proxy
Statement, its identity and ownership of Common Stock and the nature of its
commitments, arrangements and understandings under this Agreement.
4. Option to Purchase.
a. The Stockholder hereby grants to Acquiror, subject to
the terms and conditions hereof, an irrevocable option (the "Stock Option") to
purchase the Shares at a purchase price per share of $15.50 per Share (the
"Exercise Price"), in the manner set forth in this Section 4. At any time
prior to the termination of the Stock Option hereunder, Acquiror (or a wholly
owned subsidiary of Acquiror) may exercise the Stock Option, in whole only, if
on or after the date hereof:
i. any corporation, partnership, individual,
trust, unincorporated association, or other entity or "person" (as defined in
Section 13(d)(3) of the Exchange Act) other than Acquiror or any of its
"affiliates" (as defined in the Exchange Act) (a "Third Party"), will have:
A. commenced or announced an intention
to commence a bona fide tender offer or exchange offer for any shares of Common
Stock, the consummation of which would result in "beneficial ownership" (as
defined in the Exchange Act) by such Third Party (together with all such Third
Party's affiliates and "associates" (as defined in the Exchange Act)) of 50% or
more of the then outstanding voting equity of the Company (either on a primary
or a fully diluted basis);
B. acquired beneficial ownership of
shares of Common Stock that, when aggregated with any shares of Common Stock
already owned by such Third Party, its affiliates and associates, would result
in the aggregate beneficial ownership by such Third Party, its affiliates and
associates of 25% or more of the then outstanding voting equity of the Company
(either on a primary or a fully diluted basis); provided, however, that "Third
Party" for purposes of this clause (B) does not include any corporation,
partnership, person, other entity or group that beneficially owns more than 25%
of the outstanding voting equity of the Company (either on a primary or a fully
diluted basis) as of the date hereof and that does not, after the date hereof,
increase such ownership percentage by more than an additional 1% of the
outstanding voting equity of the Company (either on a primary or a fully
diluted basis);
C. acquired assets constituting 25% or
more of the total assets or earning power of the Company taken as a whole;
5
6
D. entered into an agreement with the
Company that contemplates the acquisition of (x) assets constituting 25% or
more of the total assets or earning power of the Company taken as a whole or
(y) beneficial ownership of 25% or more of the outstanding voting equity of the
Company; or
ii. any of the events described in Section 9.1(e)
or 9.1(f) of the Merger Agreement that would allow the Company or Acquiror to
terminate the Merger Agreement has occurred (after the passage of any time
periods set forth in such sections but without the necessity of the Company or
Acquiror having terminated the Merger Agreement).
In the event that Acquiror wishes to exercise the Stock
Option, Acquiror shall give written notice (the "Option Notice", with the date
of the Option Notice being hereinafter called the "Notice Date") to the
Stockholder specifying the place and date (not earlier than three nor later
than ten Business Days from the Notice Date) for closing such purchase (a
"Closing"). Acquiror's obligation to purchase the Shares upon any exercise of
the Stock Option and the Stockholder's obligation to sell the Shares upon any
exercise of the Stock Option are subject (at the election of Acquiror and the
Stockholder, respectively,) to the conditions that (i) no preliminary or
permanent injunction or other order prohibiting the purchase, issuance or
delivery of the Shares issued by any Governmental Authority will be in effect
and (ii) any applicable waiting period required for the purchase of Shares
under the HSR Act will have expired or an agreement shall have been reached
with Governmental Authorities with respect to the Antitrust Laws authorizing
consummation of the transactions contemplated hereby, provided that if such
injunction or other order has become final and nonappealable, the Stock Option
shall terminate; and provided further, that if the Stock Option is not
exercisable because either of the circumstances described in clauses (i) or
(ii) exist, then the Stock Option shall be exercisable for the ten Business Day
period commencing on the date that the circumstances set forth in clauses (i)
or (ii) cease to exist, but in no event shall the Stock Option be exercisable
after the date set forth in Section 9(c). Acquiror's obligation to purchase
the Shares upon exercise of the Stock Option is further subject (at Acquiror's
election) to the condition that there will have been no material breach of the
representations, warranties, covenants or agreements of the Stockholder
contained in this Agreement or of the Company contained in the Merger Agreement
which breach has not been cured within ten Business Days of the receipt of
written notice thereof from the Acquiror. The Stockholder's obligation to sell
the Shares upon exercise of the Stock Option and the Stockholder's obligations
under Section 7 are subject (at the Stockholder's election) to the further
conditions that there will have been no material breach of the representations,
warranties, covenants or agreements of Acquiror or Newco contained in this
Agreement or contained in the Merger Agreement, which breach has not been cured
within ten Business Days of the receipt of written notice thereof from the
Stockholder. Acquiror agrees to use its best efforts to cause any such waiting
period or injunction or order to be terminated or lifted and to obtain all
necessary regulatory approvals under the Antitrust Laws.
b. At the Closing, (i) the Stockholder shall deliver to
Acquiror the certificate or certificates representing the Shares in proper form
for transfer upon exercise of
6
7
the Stock Option in the denominations designated by Acquiror in the Option
Notice and (ii) Acquiror shall pay the aggregate purchase price for the Shares
by wire transfer of immediately available funds to an account designated by the
Stockholder in writing to Acquiror in the amount equal to the product of the
Exercise Price and the number of the Shares.
c. In the event that Acquiror or Newco pays a price
higher than $15.50 per share for Shares tendered into the Offer, the Exercise
Price shall be increased to equal such higher price.
d. The Stockholder has granted the Stock Option to
Acquiror in order to induce Acquiror to enter into and consummate the
transactions contemplated by the Merger Agreement. Acquiror and Newco covenant
and agree that they will perform their respective obligations under the Merger
Agreement. The provisions of this Section 4(d) are intended both for the
benefit of the Stockholder and for the benefit of the Company and the other
stockholders of the Company and may not be modified, waived or amended without
the consent of the Company.
5. Transfer of the Shares.
a. During the term of this Agreement, the Stockholder
will not offer to sell, sell, pledge or otherwise dispose of or transfer any
interest in or encumber with any Lien any of the Shares, (ii) enter into any
contract, option or other agreement or understanding with respect to any
transfer of any or all of the Shares or any interest therein; (iii) grant any
proxy, power-of-attorney or other authorization or consent in or with respect
to the Shares; (iv) deposit the Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Shares; or (v) take any
other action with respect to the Shares that would in any way restrict, limit
or interfere with the performance of its obligations hereunder.
b. The Stockholder agrees to place the following legend
on any and all certificates evidencing the Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
CERTAIN TENDER AND OPTION AGREEMENT, DATED AS OF JANUARY 19,
1998, BY AND BETWEEN XXXXXXXXX'X, INC. , LOCOMOTIVE
ACQUISITION CORP. AND FS EQUITY PARTNERS II, L.P. ANY
TRANSFER OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE
TERMS OF SUCH AGREEMENT SHALL BE NULL AND VOID AND OF NO
EFFECT WHATSOEVER.
7
8
6. Certain Other Agreements. The Stockholder shall notify
Acquiror immediately if any proposals are received by, any information is
requested from, or any negotiations or discussions are sought to be initiated
or continued with the Stockholder or its officers, directors, employees,
investment bankers, attorneys, accountants or other agents (each of such
actions, an "Interest"), in each case in connection with any Third Party
Transaction indicating, in connection with such notice, the name of the person
indicating such Interest and the terms and conditions of any related proposals
or offers. The Stockholder agrees to cease immediately and cause to be
terminated immediately any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any Third Party
Transaction. In addition, the Stockholder agrees to keep Acquiror informed, on
a current basis, of the status and terms of any Third Party Transaction. The
Stockholder furthermore agrees not to, and will use its best efforts to ensure
that its officers, directors, employees, investment bankers, attorneys,
accountants and other agents do not, directly or indirectly: (i) initiate,
solicit or encourage, or take any action to facilitate the making of, any offer
or proposal that constitutes or is reasonably likely to lead to any Third Party
Transaction, (ii) enter into any agreement with respect to any Third Party
Transaction or (iii) in the event of an unsolicited written proposal in respect
of a Third Party Transaction, engage in negotiations or discussions with, or
provide any information or data to, any person (other than Acquiror, any of its
affiliates or representatives and except for information that has been
previously publicly disseminated by the Company) relating to any Third Party
Transaction. The obligations provided for in this Section 6 shall become
effective immediately following the execution and delivery of this Agreement by
the parties hereto.
7. Voting of Shares; Grant of Irrevocable Proxy; Appointment of
Proxy.
a. The Stockholder hereby agrees that, during the term
of this Agreement, at any meeting (whether annual or special and whether or not
an adjourned or postponed meeting) of the holders of Common Stock, however
called, or in connection with any written consent of the holders of Common
Stock, the Stockholder will appear at the meeting or otherwise cause the Shares
to be counted as present thereat for purposes of establishing a quorum and vote
or consent (or cause to be voted or consented) the Shares (i) in favor of the
Merger and (ii) against any action or agreement that would impede, interfere
with or prevent the Merger, including any other extraordinary corporate
transaction, such as a merger, reorganization or liquidation involving the
Company and a third party or any other proposal of a third party to acquire the
Company and (iii) if requested by Acquiror, in favor of a stockholder
resolution proposed by Acquiror in accordance with applicable provisions of the
Delaware General Corporation Law (the "DGCL") the purpose of which is to cause
the Offer and the Merger to be consummated and which does not relate to the
election of directors.
b. The Stockholder hereby irrevocably grants to, and
appoints, Acquiror and any nominee thereof, its proxy and attorney- in-fact
(with full power of substitution) during the term of this Agreement, for and in
the name, place and stead of the Stockholder, to vote the Shares, or grant a
consent or approval in respect of the Shares, in connection with any meeting of
the stockholders of the Company (i) in favor of the Merger and (ii) against any
8
9
action or agreement that would impede, interfere with or prevent the Merger,
including any other extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Company and a third party or any
other proposal of a third party to acquire the Company.
c. The Stockholder represents that all proxies
heretofore given in respect of the Shares, if any, are not irrevocable, and
hereby revokes all such proxies given with respect to the Shares.
d. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 7 is given in connection with the execution of
the Merger Agreement and that such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. The
Stockholder hereby further affirms that the irrevocable proxy set forth in this
Section 7 is coupled with an interest and is intended to be irrevocable in
accordance with the provisions of Section 212(e) of the DGCL.
8. Adjustments. The number and types of securities subject to
this Agreement will be appropriately adjusted in the event of any stock
dividends, stock splits, recapitalization, combinations, exchanges of shares or
the like or any other action that would have the effect of changing the
Stockholder's ownership of the Company's capital stock.
9. Termination. Except as otherwise specifically provided
herein, all obligations under this Agreement will terminate on the earliest of
(a) the date the Merger Agreement is terminated in accordance with its terms or
the date the Offer is terminated by Acquiror or Newco as a result of any
failure of a condition of the Offer; provided, however, that the provisions of
Sections 4(a) shall not terminate until sixty (60) days thereafter (or such
later time as permitted by Section 4(a)) if the Merger Agreement was terminated
pursuant to Section 9.1(e) or (f) thereof or the Offer was not consummated due
to the occurrence of the condition set forth in clause (e) of Exhibit A to the
Merger Agreement, (b) the purchase of all the Shares pursuant to the Offer in
accordance with Section 3 or pursuant to the Stock Option, or (c) on July 19,
1998; provided, that such date shall be extended to the date of termination of
the Merger Agreement if the Company has given notice of termination under
Section 9.1(c) of the Merger Agreement and Acquiror has given the No
Termination Notice. The provisions of Section 13 shall survive any termination
of this Agreement.
10. Effectiveness. This Agreement shall not be effective unless
and until it shall have been approved by the Company's Board of Directors.
11. Brokerage. Acquiror, Newco and the Stockholder represent and
warrant to the other that the negotiations relevant to this Agreement have been
carried on by Acquiror and Newco, on the one hand, and the Stockholder, on the
other hand, directly with the other, and that there are no claims for finder's
fees or brokerage commissions or other like payments in connection with this
Agreement or the transactions contemplated hereby. Acquiror and Newco, on the
one hand, and each Stockholder, on the other hand, will indemnify and hold
9
10
harmless the other from and against any and all claims or liabilities for
finder's fees or brokerage commissions or other like payments incurred by
reason of action taken by him, it or any of them, as the case may be.
12. Miscellaneous.
a. Except for the representations and warranties set
forth in Section 1(b), all representations and warranties contained herein will
terminate upon the termination of this Agreement.
b. Any provisions of this Agreement may be waived at any
time by the party that is entitled to the benefits thereof. No such waiver,
amendment or supplement will be effective unless in writing and is signed by
the party or parties sought to be bound thereby. Any waiver by any party of a
breach of any provision of this Agreement will not operate as or be construed
to be a waiver of any other breach of such provisions or of any breach of any
other provision of this Agreement. The failure of a party to insist upon
strict adherence to any term of this Agreement or one or more sections hereof
will not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
c. This Agreement contains the entire agreement among
the parties in respect to the subject matter hereof, and supersedes all prior
agreements among the parties with respect to such matters. This Agreement may
not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
d. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and performed in that state. Each party hereto hereby (i) irrevocably and
unconditionally submits in any legal action or proceeding relating to this
Agreement, or for recognition and enforcement of any judgment in respect
thereof, to the exclusive general jurisdiction of the state and federal courts
in the state of Delaware, and appellate courts from any thereof and (ii)
consents that any action or proceeding may be brought in such courts and waives
any objection that it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the same. Each of
the parties hereto acknowledges and agrees that in the event of any breach of
this Agreement, each non-breaching party would be irreparably and immediately
harmed and could not be made whole by monetary damages. It is accordingly
agreed that the parties hereto (i) will waive, in any action for specific
performance, the defense of adequacy of a remedy at law and (ii) will be
entitled, in addition to any other remedy to which they may be entitled at law
or in equity, to compel specific performance of this Agreement in any action
instituted in any state or federal court sitting in Wilmington, Delaware.
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Merger Agreement.
10
11
e. The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement.
f. All notices and other communications hereunder will
be in writing and will be given (and will be deemed to have been duly given
upon receipt) by delivery in person, by telecopy, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to Stockholder to:
FS Equity Partners II, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: J. Xxxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Acquiror or Newco to:
Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
X.X. Xxx 00
Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Chairman
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11
12
with a copy to:
Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
X.X. Xxx 00
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Four Embarcadero Center, Suite 3800
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as any party may have furnished to the other parties
in writing in accordance herewith.
g. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement.
h. This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned by any of the
parties hereto without the prior written consent of the other parties.
i. 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 terms and provisions of this Agreement will
nevertheless remain in full force and effect as long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto will negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated by this Agreement are
consummated to the extent possible.
j. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative,
12
13
and the exercise of any thereof by either party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
13. Expenses. Except as provided in Section 4 hereof, all fees
and expenses incurred by any one party hereto shall be borne by the party
incurring such fees and expenses.
14. Further Assurances; Stockholder Capacity.
a. The Stockholder shall, upon request of Acquiror or
Newco, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Acquiror or Newco to be necessary or
desirable to carry out the provisions hereof and to vest the power to vote the
Shares as contemplated by Section 7 hereof in Acquiror.
b. Nothing in this Agreement shall be construed to
prohibit any affiliate of the Stockholder who is a member of the Board of
Directors of the Company from taking any action solely in his capacity as a
member of the Board of Directors of the Company to the extent specifically
permitted by the Merger Agreement or as required by applicable law.
13
14
IN WITNESS WHEREOF, the Acquiror, Newco and the Stockholder have
caused this Agreement to be signed by their respective officers or
representatives thereunto duly authorized, all as of the date first written
above.
ACQUIROR:
XXXXXXXXX'X, INC.
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Executive Vice President
----------------------------
NEWCO:
LOCOMOTIVE ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
----------------------------
STOCKHOLDER:
FS EQUITY PARTNERS II, L.P.
By: Xxxxxxx Xxxxxx & Co.
Its: General Partner
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
