EXHIBIT G
SUPPORT AGREEMENT
AGREEMENT, dated as of June 30, 1997, by and among JP
FOODSERVICE, INC., a Delaware corporation ("JPFI") and the other persons whose
names are set forth on the signature pages hereto (collectively, the
"Stockholders").
WHEREAS, concurrently herewith, JPFI, Xxxxxx Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of JPFI ("Merger
Sub") and Xxxxxx-Xxxxxx, Inc., a Delaware corporation ("Rykoff"), are entering
into an Agreement and Plan of Merger (the "Merger Agreement"; capitalized terms
used without definition herein having the meanings ascribed thereto in the
Merger Agreement);
WHEREAS, the Stockholders are the beneficial owners of the
number of shares of Rykoff Common Stock set forth in Schedule I hereto (the
"Subject Shares");
WHEREAS, approval of the Merger Agreement by the stockholders
of Rykoff is a condition to the consummation of the Merger; and
WHEREAS, as a condition to its entering into the Merger
Agreement, JPFI has required that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
Section 1. Agreement to Vote. (a) Each Stockholder hereby
agrees to attend the Rykoff Stockholders Meeting, in person or by proxy, and to
vote (or cause to be voted) all Subject Shares, and any other voting securities
of Rykoff, whether issued heretofore or hereafter, that such Stockholder owns or
has the right to vote, for approval and adoption of the Merger Agreement and the
Merger. Such agreement to vote shall apply also to any adjournment or
adjournments of the Rykoff Stockholders Meeting, and to any other meeting of
stockholders at which any item of business referred to in the preceding sentence
is presented for approval.
(b) To the extent inconsistent with the foregoing provisions
of this Section 1, each Stockholder hereby revokes any and all previous proxies
with respect to such Stockholder's Subject Shares or any other voting securities
of Rykoff.
Section 2. No Solicitation. No Stockholder shall, directly or
indirectly, solicit or encourage (including by way of furnishing information),
or authorize any individual, corporation or other entity to solicit or encourage
(including by way of furnishing information), from any third party any inquiries
or proposals relating to, or conduct negotiations or discussions
with any third party with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or that may reasonably
be expected to lead to, any proposal or offer relating to the disposition of
business or assets of Rykoff or JPFI or their respective subsidiaries, or the
acquisition of the voting securities of Rykoff or JPFI or their respective
subsidiaries, or the merger or consolidation of Rykoff or JPFI or any of their
respective subsidiaries with or to any corporation or other entity other than as
provided in the Merger Agreement, the Option Agreements or the Support Agreement
(and the Stockholders shall promptly notify JPFI of all of the relevant details
relating to all inquiries and proposals which such Stockholders may receive
relating to any such matters).
Section 3. Securities Act Covenants and Representations. Each
Stockholder hereby agrees and represents to JPFI as follows:
(a) Such Stockholder has been advised that the offering, sale
and delivery of JPFI Common Stock pursuant to the Merger will be registered
under the Securities Act on a Registration Statement on Form S-4. Such
Stockholder has also been advised, however, that to the extent such Stockholder
is considered an "affiliate" of Rykoff at the time the Merger Agreement is
submitted to a vote of the stockholders of Rykoff any public offering or sale by
such Stockholder of any shares of JPFI Common Stock received by such Stockholder
in the Merger will, under current law, require either (i) the further
registration under the Securities Act of any shares of JPFI Common Stock to be
sold by such Stockholder, (ii) compliance with Rule 145 promulgated by the SEC
under the Securities Act or (iii) the availability of another exemption from
such registration under the Securities Act.
(b) Such Stockholder has read this Agreement and the Merger
Agreement and has discussed their requirements and other applicable limitations
upon such Stockholder's ability to sell, transfer or otherwise dispose of shares
of JPFI Common Stock, to the extent such Stockholder believed necessary, with
such Stockholder's counsel or counsel for Rykoff.
(c) Such Stockholder also understands that stop transfer
instructions will be given to JPFI's transfer agent with respect to JPFI Common
Stock and that a legend will be placed on the certificates for the JPFI Common
Stock issued to such Stockholder, or any substitutions therefor, to the extent
such Stockholder is considered an "affiliate" of Rykoff at the time the Merger
Agreement is submitted to a vote of the stockholders of Rykoff.
Section 4. Pooling Covenants and Representations. Each
Stockholder hereby agrees and represents to JPFI that such Stockholder will not
sell, transfer or otherwise dispose of any securities of Rykoff or of any shares
of JPFI Common Stock received by such Stockholder in the Merger or other shares
of capital stock of JPFI during the period beginning 30 days prior to the
Effective Time and ending at such time as results covering at least 30 days of
combined operations of Rykoff and JPFI have been published by JPFI, in the form
of a quarterly earnings report, an effective registration statement filed with
the SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any other public
filing or announcement which includes the
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combined results of operations, except for transfers or other dispositions that,
taking into account the actions of other affiliates of Rykoff, will not prevent
JPFI from accounting for the Merger as a pooling of interests.
Section 5. Further Assurances. Each of JPFI and the
Stockholders shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of its obligations under this
Agreement. Without limiting the generality of the foregoing, none of JPFI or any
of the Stockholders shall enter into any agreement or arrangement (or alter,
amend or terminate any existing agreement or arrangement) if such action would
materially impair the ability of any party to effectuate, carry out or comply
with all the terms of this Agreement.
Section 6. Representations and Warranties of JPFI. JPFI
represents and warrants to each Stockholder as follows: Each of this Agreement
and the Merger Agreement has been approved by the Board of Directors of JPFI,
representing all necessary corporate action on the part of JPFI other than
approval of the Merger Agreement by the stockholders of JPFI. Each of this
Agreement and the Merger Agreement has been duly executed and delivered by a
duly authorized officer of JPFI. Each of this Agreement and the Merger Agreement
constitutes a valid and binding agreement of JPFI, enforceable against JPFI in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
application which may affect the enforcement of creditors' rights generally and
by general equitable principles. JPFI covenants and agrees that, effective as of
the Effective Time, JPFI shall assume the rights and obligations of Rykoff under
that certain Registration Rights Agreement, dated as of May 17, 1996, by and
among Rykoff and the other persons whose signatures are set forth on the
signature pages thereto pursuant to an agreement in form and substance
satisfactory to JPFI and such other persons.
Section 7. Representations and Warranties of Stockholders.
Each Stockholder represents and warrants to JPFI that this Agreement (i) has
been duly authorized, executed and delivered by such Stockholder and (ii)
constitutes the valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general application which may affect the enforcement of
creditors' rights generally and by general equitable principles. Each such
Stockholder is the record and beneficial owner of the Subject Shares set forth
opposite its respective name on Schedule I. The Subject Shares listed next to
the name of such Stockholder on Schedule I hereto are the only voting securities
of Rykoff owned (beneficially or of record) by such Stockholder. Neither the
execution or delivery of this Agreement nor the consummation by such Stockholder
of the transactions contemplated hereby will violate (a) the certificate of
incorporation, by-laws, partnership agreement or other organizational document,
as applicable, of any such Stockholder, or (b) any provisions of any law, rule
or regulation applicable to such Stockholder or any contract or agreement to
which such Stockholder is a party, other than such violations described in the
foregoing clause (b) as would not prevent or materially delay the performance by
such Stockholder
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of its obligations hereunder or impose any liability or obligation on JPFI. Each
Stockholder agrees that, at or prior to the Effective Time, it shall represent
to Rykoff, JPFI or their respective counsel that, during the two-year period
immediately following the Effective Time, it shall not (other than incident or
pursuant to an Extraordinary Transaction) sell, exchange or otherwise dispose of
(or enter into an agreement to sell, exchange or otherwise dispose of) shares of
JPFI Common Stock equal to more than the lesser of (i) 25% or (ii) the Shortfall
Percent, in each case of the shares of JPFI Common Stock received by it in the
Merger. The "Shortfall Percent" shall equal that percentage of the total number
of shares of JPFI Common Stock issued in the Merger as, when added to the
following percentage of shares of JPFI Common Stock, shall equal 45%: 100% minus
the sum of (i) the percent of shares of JPFI Common Stock issuable in the Merger
to the Stockholders and (ii) the percent of shares of JPFI Common Stock issuable
in the Merger to any other persons that can be identified immediately prior to
the Merger as holding 5% or more of the total number of shares of Rykoff Common
Stock outstanding at such time (for which purposes shares held by a family of
mutual funds shall, to the extent possible, be identified with separate funds
within such family and, to the extent so separately identifiable, treated as
separate stockholders). For purposes of the restriction on disposition of JPFI
Common Stock pursuant to the foregoing representation, the shares of JPFI Common
Stock held by the Stockholders shall be aggregated, and the Stockholders shall
be regarded as a single Stockholder. Notwithstanding the foregoing, no
Stockholder shall be required to provide the representation described herein if,
as a result of a change in law (including, without limitation, a change pursuant
to Treasury regulations that may be applied, by election or otherwise, to the
Merger), the facts intended to be reached by such representation are not a
necessary condition for qualification of the Merger under Section 368 of the
Internal Revenue Code of 1986, as amended.
For purposes of this Section 7, an "Extraordinary Transaction"
means a merger, consolidation or other business combination, tender or exchange
offer, share exchange, restructuring, recapitalization or other similar
transaction involving JPFI, so long as any such transaction is not arranged as
part of an overall plan to which such Stockholder is a party and pursuant to
which the Merger is also being consummated.
Section 8. Effectiveness and Termination. It is a condition
precedent to the effectiveness of this Agreement that the Merger Agreement shall
have been executed and delivered and be in full force and effect. In the event
the Merger Agreement is terminated in accordance with its terms, this Agreement
shall automatically terminate and be of no further force or effect. Upon such
termination, except for any rights any party may have in respect of any breach
by any other party of its or his obligations hereunder, none of the parties
hereto shall have any further obligation or liability hereunder.
Section 9. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or
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otherwise), when delivered by telecopy and confirmed by return telecopy, or
seven days after being mailed by first-class mail, postage prepaid in each case
to the applicable addresses set forth below:
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If to JPFI:
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to any Stockholder:
Xxxxxxx Xxxxx Capital Partners, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Co., Inc.
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Tu, Esq.
Telecopy: (000) 000-0000
and a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
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If to Rykoff:
Xxxxxx-Xxxxxx, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx
Telecopy No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx, Esq.
or to such other address as such party shall have
designated by notice so given to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by JPFI, each of the Stockholders and
Rykoff.
(c) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns, including without limitation in the
case of any corporate party hereto any corporate successor by merger or
otherwise, and in the case of any individual party hereto any trustee, executor,
heir, legatee or personal representative succeeding to the ownership of such
party's Subject Shares or other securities subject to this Agreement.
Notwithstanding any transfer of Subject Shares, the transferor shall remain
liable for the performance of all obligations under this Agreement of the
transferor.
(d) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than those expressly set
forth in this Agreement.
(e) Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such term to the other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by applicable law,
provided that in such event the parties shall negotiate in good faith in an
attempt to agree to another provision (in lieu of the term or application held
to be invalid or unenforceable) that will
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be valid and enforceable and will carry out the parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(i) No Third-Party Beneficiaries. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any person or
entity who or which is not a party hereto.
(j) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware or the
United States District Court for the Southern District of New York or any court
of the State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (j) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(k) Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the General
Corporation Law of the State of Delaware to the fullest extent possible and
otherwise by the internal laws of the State of New York without regard to
principles of conflicts of law.
(l) Name, Captions, Gender. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not affect the interpretation
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or construction hereof. Whenever the context may require, any pronoun used
herein shall include the corresponding masculine, feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist of
a number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Limitation on Liability. No Stockholder shall have any
liability hereunder for any actions or omissions of any other Stockholder.
(o) Expenses. JPFI and Rykoff shall each bear its own
expenses, and Rykoff shall bear the reasonable expenses of the Stockholders,
incurred in connection with this Agreement and the transactions contemplated
hereby, except that in the event of a dispute concerning the terms or
enforcement of this Agreement, the prevailing party in any such dispute shall be
entitled to reimbursement of reasonable legal fees and disbursements from the
other party or parties to such dispute.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
JP FOODSERVICE, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name and Title: Xxxxx X. Xxxxxx,
Chairman, President and Chief
Executive Officer
XXXXXXX XXXXX CAPITAL PARTNERS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. B-XVIII, L.P.
By: Xxxxxxx Xxxxx LBO Partners No. B-IV,
L.P., as General Partner
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
[SUPPORT AGREEMENT]
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XXXXXXX XXXXX KECALP L.P. 1994
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
ML OFFSHORE LBO PARTNERSHIP NO. B-
XVIII
By: Xxxxxxx Xxxxx LBO Partners
No. B-IV, L.P., as Investment General
Partner
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
ML IBK POSITIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
MLCP ASSOCIATES L.P. NO. II
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
[SUPPORT AGREEMENT]
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MLCP ASSOCIATES L.P. NO. IV
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
XXXXXXX XXXXX KECALP L.P. 1991
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
XXXXXXX XXXXX CAPITAL APPRECIATION
PARTNERSHIP NO. XIII, L.P.
By: Xxxxxxx Xxxxx LBO Partners No. IV, L.P.,
as General Partner
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
[SUPPORT AGREEMENT]
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ML OFFSHORE LBO PARTNERSHIP NO. XIII
By: Xxxxxxx Xxxxx LBO Partners No. IV, L.P.,
as Investment General Partner
By: Xxxxxxx Xxxxx Capital Partners, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
ML EMPLOYEES LBO PARTNERSHIP NO. I,
L.P.
By: ML Employees LBO Managers, Inc., as
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
XXXXXXX XXXXX KECALP L.P. 1987
By: KECALP Inc., as General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
MERCHANT BANKING L.P. NO. II
By: Xxxxxxx Xxxxx MBP Inc., as General
Partner
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Name and Title:
[SUPPORT AGREEMENT]
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Rykoff hereby consents to the entry by each Stockholder into
this Agreement, and the consummation of the transactions expressly contemplated
hereby, in each case for purposes of Section 3.1(a) of the that certain
Standstill Agreement (the "Standstill Agreement"), dated as of May 17, 1996, by
and between RSI and the ML Entities (as defined therein). Rykoff represents and
warrants to JPFI that the entry by each Stockholder into this Agreement, and the
consummation of the transactions expressly contemplated hereby, each has been
previously approved by the affirmative vote of a majority of the Continuing
Directors (as defined in the Standstill Agreement) of Rykoff at a meeting at
which a Continuing Director Quorum (as defined in the Standstill Agreement) was
present. Rykoff also hereby acknowledges and consents to its obligations
pursuant to Section 9(o) hereof.
XXXXXX-XXXXXX, INC.
By: /s/ Xxxx Xxx Xxxxxxxxxxxx
------------------------------
Name: Xxxx Xxx Xxxxxxxxxxxx
Title: Chairman and Chief Executive
Officer
[SUPPORT AGREEMENT]
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