EXECUTION COPY
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VOTING AGREEMENT
among
XXXX XXXXX, INC.
and
EACH OF THE INDIVIDUALS AND ENTITIES
LISTED ON THE SIGNATURE PAGE HERETO
Dated as of May 11, 1997
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VOTING AGREEMENT (this "Agreement") dated as of May 11, 1997, among Xxxx
Xxxxx, Inc., a Delaware corporation ("Xxxx Xxxxx") and the individuals and
entities (other than the University of Utah and the Corporation of the President
of the Church of Xxxxx Xxxxxx of Latter-Day Saints (the "Other Stockholders"))
listed on Schedule A attached hereto and each of such individuals and entities
being a "Stockholder" and, collectively, the "Stockholders").
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 Stockholders, 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 the Other Stockholders, dated as of the
date hereof;
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, each Stockholder and each Other Stockholder owns beneficially and
(except as set forth on Schedule A attached hereto) of record (i) 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") and
(ii) options issued under any Stock
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Option Plan (the "Options") and warrants (the "Warrants") issued under the
Warrant Agreement, dated as of May 23, 1996, between the Company and The Yucaipa
Companies, a California general partnership (the "Partnership") (the "Warrant
Agreement") to acquire the number of shares of Common Stock or of Series I
Preferred Stock, if any, set forth opposite his or its name on Schedule A
attached hereto;
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 each 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 each Stockholder. Each Stockholder
hereby, severally and not jointly, represents and warrants to Xxxx Xxxxx as of
the date hereof in respect of himself or 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 any Stockholder which is a
trust, by the trustee on behalf of such trust, or in the case of any
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.
If the Stockholder is married and the Stockholder's Subject Shares, Option
or Warrants constitute community property or otherwise need spousal or
other approval for this Agreement to be legal, valid and binding, this
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse, and
is enforceable against such spouse in accordance with its terms. 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.
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(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 such 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 such 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, except as contemplated by this Agreement or as otherwise set forth
on Schedule A attached hereto. The Partnership has not transferred, sold,
pledged, assigned or otherwise disposed of (including by gift)
(collectively, "Transfer") any Warrants issued to it pursuant to the
Warrant Agreement and the Warrants set forth opposite the Partnership's
name on Schedule A attached hereto constitute all of the Warrants issued
and outstanding under the Warrant Agreement.
2. Representations and Warranties of Xxxx Xxxxx. Xxxx Xxxxx hereby
represents and warrants to each 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 each Stockholder. Until the termination of this Agreement
in accordance with Section 7 hereof, each Stockholder, severally and not
jointly, 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.
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(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 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
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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 such Stockholder who is also an officer or director of
the Company in his capacity as such.
(f) Treatment of Certain Stockholder Profits. (i) In the event that
the Reorganization Agreement shall have been terminated at any time
pursuant to Section 7.4(a) thereof or Section 7.4(d) thereof, or is
terminated, at any time after an Acquisition Proposal is made, pursuant to
Section 7.2(c) thereof (regardless of whether such termination is by Xxxx
Xxxxx or the Company), Section 7.4(b) thereof or Section 7.4(c) thereof,
and at the time of such termination less than 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 is subject to
valid and binding Voting Agreements in full force and effect in all
respects. Each Stockholder shall pay to Xxxx Xxxxx on demand an amount
equal to all profit (determined in accordance with Section 3(f) (ii) of
such Stockholder from the consummation of any Acquisition Proposal (an
"Acquisition Transaction") within 18 months of such termination.
(ii) For purposes of this Section 3(f), the profit of any
Stockholder from any Acquisition Transaction shall equal (A) the aggregate
consideration received by such Stockholder (or which such Stockholder is
legally entitled to receive) pursuant to such Acquisition Transaction,
valuing any non-cash consideration (including any residual interest in the
Company) at its fair market value on the date of such consummation plus (B)
the fair market value, on the date of disposition, of all Subject Shares,
Options and Warrants of such Stockholder and shares of Common Stock
acquired by such Stockholder upon exercise of any Option or Warrant (less
the exercise price thereof) disposed of after the termination of the
Reorganization Agreement and prior to the date of such consummation less
(C) the fair market value of the aggregate consideration that would have
been issuable or payable to such Stockholder pursuant to the Reorganization
Agreement in effect on the date hereof, valued as of immediately prior to
the first public announcement of the termination of, or the intention of
Xxxx Xxxxx or the Company to terminate, the Reorganization Agreement, as if
the Merger had been consummated on the date of such public announcement.
For purposes of clause (C) above, the fair market value of the common stock
of Holdings that would have been
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received by the Stockholders pursuant to the Reorganization Agreement as
originally executed shall be deemed to be the fair market value of the
common stock, par value $.01 per share, of Xxxx Xxxxx.
(iii) For purposes of this Section 3(f), the fair market value of
any non-cash consideration consisting of:
(A) securities listed on a national securities exchange or
traded on the NASDAQ/NMS shall be equal to the average
closing price per share of such security as reported on the
composite trading system of such exchange or by NASDAQ/NMS
for the five trading days ending on the trading day
immediately prior to the date of value determination; and
(B) consideration which is other than cash or securities of the
form specified in clause (A) of this Section 3(f) (iii)
shall be determined by a nationally recognized independent
investment banking firm mutually agreed upon by the parties
within 10 business days of the event requiring selection of
such banking firm; provided, however, that if the parties
are unable to agree within two business days after the date
of such event as to the investment banking firm, then the
parties shall each select one firm, and those firms shall
select a third investment banking firm, which third firm
shall make such determination; provided further, that the
fees and expenses of such investment banking firm shall be
borne equally by Xxxx Xxxxx, on the one hand, and the
Stockholders, on the other hand. The determination of the
investment banking firm shall be binding upon the parties.
(iv) Any payment of profit under this Section 3(f) shall (x) if
paid in cash, be paid by wire transfer of same day funds to an account
designated by Xxxx Xxxxx and (y) if paid through a mutually agreed transfer
of securities, to the extent such transfer is permitted by applicable law
and the transfer of such securities to Xxxx Xxxxx would not adversely
impact Xxxx Xxxxx, or the value of such securities, be paid through
delivery of such securities, suitably endorsed for transfer.
4. Affiliate Letter; Tax Certificates. Each Stockholder (other than any
Stockholder holding only shares of Series I Preferred Stock) shall execute and
deliver an Affiliate Letter contemplated by the Reorganization Agreement and
such tax certificates as may reasonably be requested by tax counsel for Xxxx
Xxxxx or for the Company in connection with the rendering of the tax opinions
contemplated by the Reorganization Agreement
5. Further Assurances. Each 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
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) any 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) made) or (C) pursuant to Section 7.3
thereof. Notwithstanding the foregoing, Section 3(f) shall (if operative in
accordance with its terms) survive the termination of the Reorganization
Agreement for the period of time specified therein.
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 Stockholders at their
respective addresses 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 "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.
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(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. Each 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.
Each Stockholder signs solely in his 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
beneficial owner of such Stockholder's Subject Shares or Options or Warrants and
nothing herein shall limit or affect any actions taken by a Stockholder in his
or 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 any 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
8
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 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. Each Stockholder owning Series I Preferred Stock 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)
9
IN WITNESS WHEREOF, Xxxx Xxxxx has caused this Agreement to be signed by
its officer thereunto duly authorized and each Stockholder has signed this
Agreement or has caused this Agreement to be signed by its officer thereunto
duly authorized, all as of the date first written above.
XXXX XXXXX, INC.
By: /S/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
and President
STOCKHOLDERS:
THE YUCAIPA COMPANIES
By: /S/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
YUCAIPA ARIZONA PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS, L.P.
YUCAIPA SMITTY'S PARTNERS II, L.P.
YUCAIPA SSV PARTNERS, L.P.
By: THE YUCAIPA COMPANIES
as the General Partner of each of
the entities listed above
By: /S/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: General Partner
S-1
/S/ XXXXXXX X. XXXXX
------------------------------------
XXXXXXX X. XXXXX
/S/ XXXX X. XXXXX
------------------------------------
XXXX X. XXXXX
/S/ XXXXXXX X. XXXXX
------------------------------------
XXXXXXX X. XXXXX
THE XXX XXXXX MARITAL TRUST
By: /S/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
TRUST FOR THE CHILDREN OF XXXXXXX X.
XXXXX
By: /S/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
TRUST FOR THE CHILDREN OF XXXX X.
XXXXX
By: /S/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: Trustee
TRUST FOR THE CHILDREN OF XXXXXXX X.
XXXXX
By: /S/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Trustee
S-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
------------------------------------------------------------------------------------------------------------------------------------
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
--------------
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
--------------
2 Of this total, 660,000 shares are pledged to Xxxxxxx, Sachs & 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/o Smith's 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
========== ========= ========== ========== =========
--------------
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
