VOTING AGREEMENT
This Voting Agreement (the "Agreement") dated as of October 26, 2000
between Flowers Industries, Inc., a Georgia corporation ("TULIP"), and Xxxxxxx
Company, a Delaware corporation ("Parent").
WHEREAS, Keebler Foods Company, a Delaware corporation ("Elf"), Parent
and FK Acquisition Corp., a Delaware corporation ("Merger Subsidiary") are
concurrently with the execution and delivery of this Agreement entering into an
Agreement and Plan of Merger (the "Elf Merger Agreement") pursuant to which
Merger Subsidiary will merge with and into Elf (the "Elf Merger") on the terms
and conditions set forth therein;
WHEREAS, TULIP is concurrently with the execution and delivery of the
Elf Merger Agreement hereby agreeing to approve and adopt the Elf Merger
Agreement and the Elf Merger as the owner of the Shares (as defined below) by
Written Consent (as defined below); and
WHEREAS, in order to induce Parent to enter into the Elf Merger
Agreement, Parent has requested TULIP, and TULIP has agreed, to enter into this
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used and not defined herein
shall have the meaning assigned to such terms in the Elf Merger
Agreement.
SECTION 2. AGREEMENT TO VOTE. TULIP irrevocably agrees to vote all
Shares pursuant to an action by written consent (the "Written Consent"), to be
taken as promptly as permissible under applicable Law (which shall be the 21st
day after that date on which the Elf Information Statement is mailed to the Elf
stockholders in accordance with Section 6.02 of the Elf Merger Agreement), (a)
in favor of the adoption of the Elf Merger Agreement and each of the
transactions contemplated thereby, including the Elf Merger and (b) against (i)
any proposal made in opposition to or in competition with the Elf Merger and the
Elf Merger Agreement and the transactions contemplated by the Elf Merger
Agreement, (ii) any merger, reorganization, consolidation, share exchange,
business combination, sale of assets, recapitalization, liquidation, winding up,
extraordinary dividend or distribution, significant share repurchase or other
similar transaction with or involving Elf and any party other than Parent, or
(iii) any other action the consummation of which would reasonably be expected to
impede, frustrate, interfere with, impair, delay or prevent consummation of the
transactions contemplated by the Elf Merger Agreement. The obligation of TULIP
specified in this Section 2 shall apply whether or not the Board of Directors of
Elf makes an Adverse Recommendation Change. In furtherance of this Section 2 and
as security for the agreements set forth herein, TULIP has granted a proxy to
Parent pursuant to Section 3.
SECTION 3. IRREVOCABLE PROXY.
(a) In furtherance of the agreements contained in Section 2 hereof and
as security for such agreements, TULIP hereby irrevocable grants to, and
appoints, Xxxxxx X.
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Xxxxxxxxx, Chairman and Chief Executive Officer of Parent, and Xxxxx X. Xxxxx,
Executive Vice President - Corporate Development, General Counsel and Secretary
(Xx. Xxxxxxxxx and Xx. Xxxxx, the "GRANTEES") in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, TULIP's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of TULIP, to vote all Shares Beneficially Owned by TULIP, or grant a
consent or approval in respect of such Shares, or execute and deliver a proxy to
vote such Shares, (i) in favor of the adoption of the Elf Merger and the Elf
Merger Agreement and approval of the terms thereof and each of the other
transactions contemplated by the Elf Merger Agreement; provided that the
Grantees shall not have authority to grant any such consent prior to 21 calendar
days after the Elf Information Statement is distributed to Elf's stockholders,
(ii) against any Takeover Proposal or any other matter referred to in Section
2(b) hereof, except as otherwise specified in Section 2 hereof and (iii) in the
discretion of the Grantees, with respect to any proposed postponements or
adjournments of any annual or special meeting of the stockholders of Elf.
(b) TULIP represents and warrants to Parent that any proxies
heretofore given in respect of any or all of its Shares are not irrevocable, and
that any such proxies are hereby revoked, except for the Written Consent.
(c) TULIP hereby affirms that the irrevocable proxy set forth in this
Section 3 is given in connection with, and in consideration of, the execution of
the Elf Merger Agreement by Parent, and that such irrevocable proxy is given to
secure the performance of the duties of TULIP under this Agreement. TULIP hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances by revoked. TULIP hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by virtue hereof. The
irrevocable proxy contained herein is intended to be irrevocable in accordance
with the provisions of Section 212(e) of the Delaware Law.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF TULIP. TULIP hereby
represents and warrants to Parent that:
(a) OWNERSHIP OF SHARES. TULIP is the sole Beneficial Owner, and sole
owner of record, of 46,197,466 shares (the "Shares") of common stock, $0.01 par
value per share, of Elf. TULIP has good and marketable title to the Shares, free
and clear of any Lien and free of any other limitation or restriction (including
any restriction on the right to vote or otherwise dispose of the Shares). TULIP
has, and will have at any time from the date hereof until the date that Section
2 is no longer in effect, sole voting power, sole power of disposition and sole
power to issue instructions with respect to the matters set forth in Section 2
hereof with no limitations, qualifications or restrictions on such rights.
Without limiting the foregoing, none of the Shares is subject to any voting
trust or other agreement, proxy (except for the Written Consent and as provided
in Section 3 hereof) or other arrangement with respect to the voting of such
Shares. From and after the date hereof, TULIP will not commit or omit to take
any action if such action or omission could restrict or otherwise affect TULIP's
legal power, authority and right to vote all the Shares as provided in Section 2
hereof or (ii) affect the validity or effectiveness of the Written Consent.
Without limiting the foregoing, from and after the date hereof, TULIP will not
enter into any voting agreement with any Person with respect to any of the
Shares, grant any Person any proxy (revocable or irrevocable) or
power-of-attorney with respect
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to any of the Shares, deposit any of the Shares in a voting trust or otherwise
enter into any agreement or arrangement limiting or affecting TULIP's legal
power, authority or right to vote the Shares as provided in Section 2 hereof.
Except for the Shares, TULIP does not Beneficially Own any (x) shares of capital
stock or voting securities of Elf, (y) securities of Elf convertible into or
exchangeable for shares of capital stock or voting securities of Elf or (z)
options or other rights to acquire from Elf any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of Elf. "Beneficially Owned" or "Beneficial Ownership" with respect
to any securities means having beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 under the 1934 Act, disregarding the phrase
"within 60 days" in paragraph (d)(1)(i) thereof), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom such Person would
constitute a "Group" within the meaning of Section 13(d) of the 1934 Act and the
rules promulgated thereunder. "Beneficial Owner" with respect to any securities
means a Person that has Beneficial Ownership of such securities.
(b) CORPORATE AUTHORIZATION. The execution, delivery and performance
by TULIP of this Agreement and the consummation by TULIP of the transactions
contemplated hereby are within TULIP's corporate powers and have been duly
authorized by all necessary corporate action on the part of TULIP. This
Agreement has been duly executed and delivered by TULIP and constitutes a valid
and binding Agreement of TULIP, enforceable against it in accordance with its
terms.
(c) NON-CONTRAVENTION. The action to be taken in the Written Consent
and the execution, delivery and performance by TULIP of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (i)
contravene, conflict with, or result in any violation or breach of any provision
of the articles of incorporation or bylaws of TULIP or Elf, (ii) contravene,
conflict with, or result in any violation or breach of any applicable law, rule,
regulation, judgment, injunction, order or decree, (iii) require any consent by
any Person under, constitute (with or without notice or lapse of time or both) a
default under, or cause or permit the termination, cancellation or acceleration
or other change of any right or obligation or the loss of any benefit to which
TULIP is entitled under any provision of any agreement or other instrument
binding on TULIP.
(d) OPINION OF FINANCIAL ADVISORS. TULIP has received an opinion of
each of UBS Warburg LLC and Xxxxxx Xxxxxxx & Co. Incorporated, each dated as of
the date of this Agreement and each to the effect that, as of the date of such
opinion, the Merger Consideration to be received by TULIP's shareholders under
the Agreement and Plan of Restructuring and Merger dated as of October 26, 2000
among TULIP, Parent and Merger Subsidiary (the "TULIP Merger Agreement) is fair
from a financial point of view to Tulip's stockholders. Complete and correct
signed copies of such opinions will be delivered to Parent as soon as
practicable after the date of this Agreement.
(e) PARENT'S RELIANCE. TULIP understands and acknowledges that Parent
is entering into the TULIP Merger Agreement and the Elf Merger Agreement in
reliance upon TULIP's execution, delivery and performance of this Agreement.
TULIP acknowledges that the
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Written Consent to be delivered and the proxy granted in Section 3 hereof is
granted in consideration of the execution and delivery of the TULIP Merger
Agreement and the Elf Merger Agreement by Parent.
SECTION 5. TULIP COVENANT AS TO THE SHARES. TULIP shall not, without
the prior written consent of Parent, directly or indirectly (a) except for the
Written Consent, the agreement to vote pursuant to Section 2 hereof and the
proxy granted under Section 3 hereof, each of which are contemplated by the Elf
Merger Agreement and the TULIP Merger Agreement, grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Shares or (b) acquire, sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect acquisition or sale, assignment,
transfer, encumbrance or other disposition of, any Shares during the term of
this Agreement.
SECTION 6. NO SOLICITATION. TULIP shall not, nor shall it permit any
of its Subsidiaries to, or authorize or permit any director, officer or employee
of TULIP or any of its Subsidiaries or any investment banker, attorney,
accountant or other advisor or representative of TULIP or any of its
Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate or
encourage, or take any other action knowingly to facilitate, any Takeover
Proposal or (ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or otherwise cooperate in any way with, any Takeover Proposal,
in each case other than a Takeover Proposal made by Parent, except as required
to comply with fiduciary duties under Delaware law. TULIP will immediately cease
all existing activities, discussions and negotiations with any parties conducted
heretofore with respect to any Takeover Proposal and request the return of all
confidential information regarding TULIP or Elf provided to any such parties
prior to the date hereof pursuant to the terms of any confidentiality agreements
or otherwise.
SECTION 7. THIRD PARTY STANDSTILL AGREEMENTS; RIGHTS AGREEMENT. (a)
During the period from the date of this Agreement until the termination of this
Agreement, TULIP shall not terminate, amend, modify or waive any provision of
any confidentiality or standstill agreement relating to the making of a Takeover
Proposal to which it is a party (other than any involving Parent or its
Subsidiaries). During such period, TULIP agrees to use all reasonable efforts to
enforce, to the fullest extent permitted under applicable law, the provisions of
any such agreements, including seeking injunctions to prevent any breaches of
such agreements and to enforce specifically the terms and provisions thereof in
any court of the United States or any state thereof having jurisdiction.
(b) Except as provided with respect to the transactions contemplated
by the TULIP Merger Agreement, the Board of Directors of TULIP shall not,
without the prior written consent of Parent (a) amend the Rights Agreement (as
defined in the TULIP Merger Agreement) or (b) take any action with respect to,
or make any determinations under, the Rights Agreement, including a redemption
of the Rights or any action to facilitate a Takeover Proposal.
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SECTION 8. TERMINATION.
(a) Unless earlier terminated pursuant to this Section 8, this
Agreement will terminate on the earlier to occur of (i) the consummation of the
Elf Merger and (ii) the termination of the Elf Merger Agreement in accordance
with its terms.
(b) This Agreement may be terminated at any time prior to the
effectiveness of any approval of the Elf Merger Agreement by the stockholders of
Elf by mutual written agreement of Parent and TULIP.
(c) The provisions of Sections 9, 13, 14, 15 and 16 will survive any
termination of this Agreement pursuant to Section 8. The provisions of Section
12 will survive termination of this Agreement pursuant to Section 8(a)(i).
SECTION 9. EXPENSES. Except as otherwise provided in this Agreement,
all costs and expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
SECTION 10. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Parent, to:
Xxxxxxx Company
Xxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
if to TULIP, to:
Flowers Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: G. Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
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with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Fax: (000)000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 11. AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 12. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer, whether by operation or law or otherwise, any of its
rights or obligations under this Agreement without the consent of each other
party hereto.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of laws rules of such state.
SECTION 14. JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal court located in the State of Delaware or any Delaware state court,
and each of the parties hereby consents to the jurisdiction of such courts (and
of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been
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brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 10 shall be
deemed effective service of process on such party.
SECTION 15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 16. COUNTERPARTS; EFFECTIVENESS; BENEFIT. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights, benefits,
remedies, obligations, or liabilities hereunder upon any Person other than the
parties hereto and their respective successors and assigns.
SECTION 17. ENTIRE AGREEMENT. This Agreement, the Confidentiality
Agreement, the Elf Merger Agreement, and the TULIP Merger Agreement entered into
by the parties concurrently with the execution and delivery of this Agreement
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersede all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement.
SECTION 18. CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
SECTION 19. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall 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 in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 20. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled, without posting a bond or similar indemnity, to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Delaware or any Delaware state court, in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
Xxxxxxx Company
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name:
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Title:
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Flowers Industries, Inc.
By: /s/ G.A. Xxxxxxxx
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Name:
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Title:
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