THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. STOCKHOLDER VOTING AGREEMENT
EXHIBIT
2
THE
GREAT
ATLANTIC & PACIFIC TEA COMPANY, INC.
STOCKHOLDER
VOTING AGREEMENT, dated March 4, 2007 (this “Agreement”),
among
Tengelmann Warenhandelsgesellschaft KG, a limited partnership organized under
the laws of the Federal Republic of Germany (“Stockholder”),
and
Pathmark Stores, Inc., a Delaware corporation (the “Company”).
WHEREAS,
the Company, The Great Atlantic & Pacific Tea Company, Inc., a Maryland
corporation (“Parent”),
and
Sand Merger Corp., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger
Sub”),
have
entered into an Agreement and Plan of Merger (the “Merger
Agreement”),
dated
as of the date of this Agreement, pursuant to which, on the Closing Date, Merger
Sub will merge with and into the Company (the “Merger”)
(capitalized terms not defined herein shall have the meanings assigned to such
terms in the Merger Agreement);
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, the
Company has requested that Stockholder make certain agreements with respect
to
the outstanding shares of Common Stock, par value $1.00 per share (“Shares”),
of
Parent owned by Stockholder as set forth in Schedule I and shares of other
voting securities of Parent hereafter acquired by Stockholder (the “Subject
Shares”),
upon
the terms and subject to the conditions of this Agreement; and
WHEREAS,
in order to induce the Company to enter into the Merger Agreement, Stockholder
is willing to make certain agreements with respect to the Subject
Shares;
NOW,
THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth in this Agreement, the parties agree as
follows:
1. Voting
Agreement.
For so
long as this Agreement is in effect, in any meeting (or any adjournment or
postponement thereof) of stockholders of Parent, and in any action by consent
of
the stockholders of Parent, Stockholder shall vote (or cause to be voted),
or,
if applicable, give (or cause to be given) consents with respect to, all of
the
Subject Shares that are held by that Stockholder and are entitled to vote at
the
meeting or deliver (or cause to be delivered) a consent, in any such case (i)
in
favor of (A) the issuance of Parent Common Stock in connection with the Merger
or any other transaction contemplated by the Merger Agreement,
as the
Merger Agreement may be modified or amended from time to time in a manner not
adverse to Stockholder or with the written consent of Stockholder and
(B)
the approval of the Preemptive Rights Waiver, (ii) against any action, proposal,
transaction or agreement which would reasonably be expected to result in a
breach of any covenant, representation, or warranty or any other obligation
or
agreement of Parent or Merger Sub under the Merger Agreement or of Stockholder
under this Agreement, and (iii) against any action, proposal, transaction or
agreement that would compete with or would delay, discourage, adversely affect
or inhibit the timely consummation of the Merger. Stockholder shall use its
best
efforts to cast (or cause to be cast) Stockholder’s vote or give Stockholder’s
consent in accordance with the procedures communicated to Stockholder by Parent
relating thereto so that the vote or consent shall be duly counted for purposes
of determining that a quorum is present and for purposes of recording the
results of that vote or consent.
1
2. Covenants.
(a)
For
so
long as this Agreement is in effect, Stockholder agrees not to directly or
indirectly (i) sell, transfer, pledge, assign, hypothecate, encumber, tender
or
otherwise dispose of, or enter into any contract with respect to the sale,
transfer, pledge, assignment, hypothecation, encumbrance, tender or other
disposition of (each such disposition or contract, a “Transfer”)
any
Subject Shares (and any such Transfer shall be null and void), except in
connection with any margin transaction or hedging transaction designed to
protect against fluctuations in the value of the Subject Shares, in each case,
(x) that is not engaged in for purposes of circumventing the restrictions on
transfer set forth in this Section 2(a) and (y) pursuant to which Stockholder
retains voting control over the applicable Subject Shares; (ii) grant any
proxies with respect to the Subject Shares, deposit any of the Subject Shares
into a voting trust or enter into a voting or option agreement with respect
to
any of the Subject Shares or enter into any other agreement inconsistent with
or
violative of this Agreement; or (iii) take any action which would make any
representation or warranty of Stockholder in this Agreement untrue or incorrect
or prevent, burden or materially delay the consummation of the transactions
contemplated by this Agreement or the Merger Agreement.
(b) Stockholder
agrees that in the event (i) any shares of Parent Common Stock or other voting
securities of Parent are issued pursuant to any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of Parent on, of, or affecting the Subject Shares of Stockholder; (ii)
Stockholder purchases or otherwise acquires beneficial ownership of any shares
of Parent Common Stock or other voting securities of Parent after the execution
of this Agreement; or (iii) Stockholder acquires the right to vote or share
in
the voting of any shares of Parent Common Stock or other voting securities
of
Parent, other than the Subject Shares (such Parent Common Stock and other voting
securities of Parent, collectively, the “New
Shares”),
Stockholder agrees to vote such New Shares in the same manner as the Subject
Shares and to notify the Company of its acquisition thereof. Stockholder also
agrees that any New Shares shall constitute Subject Shares.
(c) Stockholder
shall not issue any press release or make any other public statement with
respect to the Merger Agreement, the Merger or any other transaction
contemplated hereby or by the Merger Agreement without the prior written consent
of the Company, except (i) any German translation of all or any portion of
any
release or statement publicly disclosed by Parent or the Company or (ii) as
may
be required by applicable Law or court process, in each case, after consultation
with, and having provided an opportunity for review and comment on such press
release or other public statement (including, in the case of clause (i), an
English translation thereof) by, the Company to the extent
practicable.
3. Representations
and Warranties of Stockholders.
Stockholder represents and warrants to the Company that:
(a) Authority;
Enforceability; No Conflicts.
Stockholder has the legal capacity to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. This Agreement
has
been duly executed and delivered by Stockholder and constitutes a valid and
binding agreement of Stockholder enforceable against Stockholder in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and general principles of equity (whether considered in a proceeding in equity
or at law). The execution, delivery and performance by Stockholder of this
Agreement will not (i) conflict with, require a consent, waiver or approval
under, or result in a breach or default under, any of the terms of any contract,
commitment or other obligation to which the Stockholder is a party or by which
Stockholder is bound; (ii) violate any order, writ, injunction, decree or
statute, or any law, rule or regulation applicable to Stockholder or the Subject
Shares; or (iii) result in the creation of, or impose any obligation on
Stockholder to create, any Lien upon the Subject Shares that would prevent
Stockholder from voting the Subject Shares, except for any of the foregoing
that
would not, or would not reasonably be expected to, either individually or in
the
aggregate, materially impair the ability of Stockholder to perform its
obligations hereunder or to consummate the transactions contemplated hereby.
In
this Agreement, “Lien”
shall
mean any lien, pledge, security interest, claim, third party right or other
encumbrance.
2
(b) Ownership
of Shares.
As of
the date of this Agreement, Stockholder is the beneficial owner of and has
the
power to vote or direct the voting of the Shares set forth on Schedule I
free and clear of any Liens that would prevent Stockholder from voting such
Shares. As of the date of this Agreement, the Shares set forth on Schedule
I are
the only shares of any class of capital stock of Parent which Stockholder has
the right, power or authority (sole or shared) to sell or vote, and Stockholder
does not have any right to acquire, nor is it the beneficial owner of, any
other
shares of any class of capital stock of Parent or any securities convertible
into or exchangeable or exercisable for any shares of any class of capital
stock
of Parent. Stockholder is not a party to any contracts (including proxies,
voting trusts or voting agreements) that would prevent, hinder or delay
Stockholder from voting or giving consent with respect to the Shares set forth
on Schedule I.
4. Expenses.
Each
party to this Agreement shall pay its own expenses incurred in connection with
this Agreement.
5. Stockholder
Capacity.
Stockholder signs solely in its capacity as the beneficial owner of, or the
general partner of a partnership which is the beneficial owner of, the Subject
Shares. Nothing in this Agreement shall be deemed to constitute a transfer
of
the beneficial ownership of the Subject Shares by Stockholder.
6. Termination.
This
Agreement shall terminate automatically and without further action on behalf
of
any party at the earlier of (a) the Effective Time, (b) the date the Merger
Agreement is validly terminated in accordance with its terms and (c) one year
after the date of this Agreement.
7. Assignment;
Binding Effect.
This
Agreement and the rights hereunder are not assignable (whether by operation
of
law or otherwise) unless such assignment is consented to in writing by each
of
the Company and Stockholder and any attempt to make any such assignment without
such consent shall be null and void. Subject to the preceding clause, this
Agreement and all the provisions hereof shall be binding upon and shall inure
to
the benefit of the parties and their respective successors and permitted
assigns.
8. Choice
of Law; Jurisdiction; Service of Process.
This
Agreement, and all disputes between the parties under or related to this
Agreement or the facts and circumstances leading to its execution, whether
in
contract, tort or otherwise, shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to conflict of laws
principles. Each of the parties hereto (i) irrevocably consents to submit
itself to the exclusive personal jurisdiction of the Delaware Court of Chancery
or any federal court located in the State of Delaware in any dispute arising
out
of or relating to this Agreement or any transaction contemplated hereby;
(ii) agrees that all claims in respect of such Action may be heard and
determined in any such court; (iii) agrees that it will not attempt to deny
or
defeat such personal jurisdiction by motion or other request for leave from
any
such court; (iv) agrees that it will not bring any Action relating to this
Agreement or any transaction contemplated hereby in any court other than the
Delaware Court of Chancery or any federal court sitting in the State of
Delaware; and (v) waives any right to trial by jury with respect to any
action or proceeding related to or arising out of this Agreement or any
transaction contemplated hereby. Each of the parties hereto waives any defense
of inconvenient forum to the maintenance of any action or proceeding so brought.
Each of the parties further agrees to waive any bond, surety or other security
that might be required of any other party with respect to any action or
proceeding, including an appeal thereof. Any party hereto may make service
on
another party by sending or delivering a copy of the process to the party to
be
served at the address and in the manner provided for the giving of notices
by
registered mail in Section 9, and each party waives any requirement for
service in any other manner. Nothing in this Section 8, however, shall
affect the right of any party to serve legal process in any other manner
permitted by law.
3
9. Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given (a) if delivered
personally, when received (b) if sent by cable, telecopy, telegram, email or
facsimile (which is confirmed by the intended recipient), when sent or (c)
if
sent by overnight courier service, on the next Business Day after being sent,
or
(d) if mailed by certified or registered mail, return receipt requested, with
postage prepaid, five Business Days after being deposited in the mail: to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to the Stockholder, to:
Xxxxxxxxxxxxxx
0-00
X-00000
Xxxxxxx an
der Ruhr
GERMANY
Attention: Xx.
Xxxxxxxxx
Xxxx
Xx.
Xxxxx
Xxxxxxxx
Fax:
x00 (0)000 0000 0000
Email:
XxxxX@XXXXX.xxx,
xxxxxxxxx@xx.xxxxxxxxxx.xx
with
a copy
to:
Cravath,
Swaine &
Xxxxx LLP
000
Xxxxxx
Xxxxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxxx
Xxxxxxxx,
Esq.
Fax: (000)
000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
If
to the Company,
to:
Pathmark
Stores,
Inc.
000
Xxxxx
Xxxxxx
Xxxxxxxx,
Xxx
Xxxxxx
Attn: Xxxx
Xxxxxxxxx
Fax: (000)
000-0000
Email:
xxxxxxxxxx@xxxxxxxx.xxx
with
a copy
to:
Xxxxxx
&
Xxxxxxx
LLP
000
Xxxxxxxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX
00000-0000
Attn:
Xxxx X. Xxxxxx, Esq.
Fax:
(000) 000-0000
Email:
xxxx.xxxxxx@xx.xxx
10. Headings.
The
headings
contained in this Agreement are inserted for convenience only and shall not
be
considered in interpreting or construing any of the provisions contained in
this
Agreement.
4
11. Entire
Agreement.
This
Agreement (including the Schedule hereto), constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, arrangements, undertakings, understandings
and
representations by or among the parties hereto, or any of them, written or
oral,
with respect to the subject matter hereof.
12. Waiver
and Amendment. This
Agreement may be amended, modified or supplemented only by a written mutual
agreement executed and delivered by the parties hereto. Except as otherwise
provided in this Agreement, any failure of any party to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver shall not operate as a waiver of,
or
estoppel with respect to, any subsequent or other failure. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
13. Counterparts;
Facsimile Signatures.
This
Agreement may be executed in any number of counterparts, each of which, when
executed, shall be deemed to be an original and all of which together shall
be
deemed to be one and the same instrument binding upon all of the parties
notwithstanding the fact that all of the parties are not signatory to the
original or the same counterpart. For purposes of this Agreement, facsimile
signatures shall be deemed originals.
14. Third-Party
Beneficiaries.
This
Agreement is for the sole benefit of the parties and their successors and
permitted assigns
and
nothing
herein express or implied shall give or be construed to give to any Person,
other than the parties and such successors and permitted assigns, any legal
or
equitable rights hereunder.
15. Specific
Performance. Stockholder agrees that if any of its obligations under this
Agreement were not performed in accordance with their specific terms or were
otherwise breached, irreparable damage would occur to the Company, no adequate
remedy at Law would exist and damages would be difficult to determine, and
that
the Company shall be entitled to an injunction or injunctions and specific
performance of the terms hereof, this being in addition to any other remedy
at
Law or in equity, without the necessity of posting bonds or other undertaking
in
connection therewith. Accordingly, if the Company should institute an action
or
proceeding seeking an injunction or specific enforcement of the provisions
of
this Agreement, Stockholder hereby waives the claim or defense that the Company
has an adequate remedy at law and hereby agrees not to assert in that action
or
proceeding the claim or defense that a remedy at law exists. Stockholder
acknowledges that in the absence of a waiver, a bond or undertaking may be
required by a court and Stockholder hereby waives any such requirement of such
bond or undertaking.
16. Severability.
If any term, covenant, restriction or provision of this Agreement or the
application of any such term, covenant, restriction or provision to any Person
or circumstance shall be held invalid, illegal or unenforceable in any respect
by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term, covenant, restriction or
provision hereof so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. The parties shall engage in good faith negotiations to replace any term,
covenant, restriction or provision which is declared invalid, illegal or
unenforceable with a valid, legal and enforceable term, covenant, restriction
or
provision, the economic effect of which comes as close as possible to that
of
the invalid, illegal or unenforceable term, covenant, restriction or provision
which it replaces.
5
17. No
Liability of Partners.
Notwithstanding
anything that may be expressed or implied in this Agreement, the Company
acknowledges and agrees that (i) notwithstanding that Stockholder may be a
partnership, no recourse hereunder or under any documents or instruments
delivered by Stockholder in connection herewith may be had against any officer,
agent or employee of Stockholder or any partner, member or stockholder of
Stockholder or any director, officer, employee, partner, affiliate, member,
manager, stockholder, assignee or representative of the foregoing (any such
person or entity, a “Representative”),
whether by the enforcement of any judgment or assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, and (ii) no personal liability whatsoever will attach to, be
imposed on or otherwise be incurred by any Representative under this Agreement
or any documents or instruments delivered in connection herewith or for any
claim based on, in respect of or by reason of such obligations or by their
creation..
6
IN
WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
| PATHMARK STORES, INC. | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxx | |
|
|
||
|
Name:
Xxxx X.
Xxxxxxxx
Title:
Chief
Executive Officer
|
||
|
TENGELMANN
WARENHANDELSGESELLSCHAFT
KG
|
||
| |
|
|
| By: |
Tengelmann Verwaltungs-und Beteiligungs GmbH,
as Managing Partner
|
|
| By: | /s/ Christian W. E. Xxxx | |
|
|
||
|
Name: Christian
W. E.
Xxxx
Title: Managing
Director
|
||
S-1
|
SCHEDULE
I
|
|
|
STOCKHOLDER
NAME
|
OUTSTANDING
SHARES OWNED
|
|
21,995,371
|
|
