Exhibit 99.2
STOCK OPTION AGREEMENT
THE OPTION EVIDENCED BY THIS STOCK OPTION AGREEMENT
MAY NOT BE TRANSFERRED EXCEPT
TO A WHOLLY OWNED SUBSIDIARY OF GRANTEE.
THIS STOCK OPTION AGREEMENT is dated as of June 30, 1997, between JP
Foodservice, Inc., a Delaware corporation ("Grantee"), and Xxxxxx-Xxxxxx, Inc.,
a Delaware corporation ("Issuer").
RECITALS
WHEREAS, Grantee, Issuer and Merger Sub ("Merger Sub"), a Delaware
corporation and a wholly-owned subsidiary of Grantee, have entered into an
Agreement and Plan of Merger (the "Merger Agreement") which provides, among
other things, that, upon the terms and subject to the conditions thereof, Issuer
will be merged with and into Merger Sub (the "Merger"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Grantee has required that Issuer agree, and Issuer has agreed, to
enter into this Stock Option Agreement, which provides, among other things, that
Issuer grant to Grantee an option to purchase shares of Issuer's Common Stock,
par value $.10 per share ("Issuer Common Stock"), upon the terms and subject to
the conditions provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained in this Stock Option Agreement and the Merger
Agreement, the parties agree as follows:
1. Grant of Option. Subject to the terms and conditions of this
Stock Option Agreement, Issuer hereby grants to Grantee an irrevocable option
(the "Option") to purchase from Issuer 5,564,140 shares of Issuer Common Stock
(but in no event to exceed 19.9% of the then outstanding shares of Issuer Common
Stock) (the "Option Shares"), in the manner set forth below, at an exercise
price of $25.305 per share of Issuer Common Stock, subject to adjustment as
provided below (the "Option Price"). Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Merger Agreement.
2. Exercise of Option.
(a) Subject to the satisfaction or waiver of the conditions set forth
in Section 9 of this Stock Option Agreement, prior to the termination of this
Stock Option Agreement in accordance with its terms, Grantee or its designee
(which shall be a wholly owned subsidiary of Grantee) may exercise the
Option, in whole or in part, at any time or from time to time on or after the
public disclosure of, or the time at which Grantee shall have learned of, the
earliest event to occur of the following:
(i) any person or group (1) other than Grantee, its affiliates
or the ML Entities (as such term is defined in that certain Standstill
Agreement (the "Standstill Agreement"), dated as of May 17, 1996, by
and among Issuer and the other persons listed on the signature pages
thereto) shall have acquired or become the beneficial owners (within
the meaning of Rule 13d-3 under the Exchange Act) of more than twenty
percent (20%) of the outstanding shares of Issuer Common Stock, or (2)
other than Grantee or its affiliates shall have been granted any
option or right, conditional or otherwise, to acquire more than twenty
percent (20%) of the outstanding shares of Issuer Common Stock
(provided that in the event that such option or right expires
unexercised, then to the extent the Option has not already been
exercised, it shall no longer be exercisable except as otherwise
provided in clause (i), (ii), (iii), (iv) or (v) of this Section
2(a));
(ii) the ML Entities and their affiliates in the aggregate (1)
shall have acquired or become the beneficial owners (within the
meaning of Rule 13d-3 under the Exchange Act) of a percentage of the
outstanding shares of Issuer Common Stock greater than the sum of (A)
the ML Entities' proportionate ownership of such outstanding Issuer
Common Stock on the date hereof and (B) the Additional Percentage (as
defined in the Standstill Agreement) to the extent acquired pursuant
to Section 3.1(c) of the Standstill Agreement, or (2) shall have been
granted any option or right, conditional or otherwise, other than any
such option or right in existence immediately prior to the date hereof
and previously disclosed to Grantee, to acquire any outstanding shares
of Issuer Common Stock that, together with any other shares of Issuer
Common Stock then beneficially owned by such ML Entities, would exceed
the sum of (A) the ML Entities' proportionate ownership of such
outstanding shares of Issuer Common Stock on the date hereof and (B)
the Additional Percentage to the extent acquired pursuant to Section
3.1(c) of the Standstill Agreement (provided that in the event that
such option or right expires unexercised, then to the extent the
Option has not already been exercised, it shall no longer be
exercisable except as otherwise provided in clause (i), (ii), (iii),
(iv) or (v) of this Section 2(a));
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(iii) any person other than Grantee and its affiliates shall have
made a tender offer or exchange offer (or entered into an agreement to
make such a tender offer or exchange offer) for at least twenty
percent (20%) of the then outstanding shares of Issuer Common Stock
(provided that in the event that such tender offer or exchange offer
or agreement is withdrawn or terminates, as the case may be, prior to
consummation of such offer or the transactions contemplated by such
agreement, then to the extent the Option has not already been
exercised, it shall no longer be exercisable except as otherwise
provided in clause (i), (ii), (iii), (iv) or (v) of this Section
2(a));
(iv) Issuer shall have entered into a written definitive
agreement or written agreement in principle with any person other than
Grantee or its affiliates in connection with a liquidation,
dissolution, recapitalization, merger, consolidation or acquisition or
purchase of all or a material portion of the assets of Issuer and its
subsidiaries, taken as a whole, or all or a material portion of the
equity interest in Issuer and its subsidiaries, taken as a whole, or
other similar transaction or business combination (each, an
"Acquisition Transaction"); or
(v) any person other than Grantee or its affiliates shall have
made a proposal to Issuer or its stockholders to engage in an
Acquisition Transaction.
(b) In the event Grantee wishes to exercise the Option at such time as
the Option is exercisable, Grantee shall deliver written notice (the "Exercise
Notice") to Issuer specifying its intention to exercise the Option, the total
number of Option Shares it wishes to purchase and a date and time for the
closing of such purchase (a "Closing") not less than three (3) nor more than
thirty (30) business days after the later of (i) the date such Exercise Notice
is given and (ii) the expiration or termination of any applicable waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"). If prior to the Expiration Date (as defined in Section 11 below) any
person or group (other than Grantee or its affiliates) (1) shall have made a
bona fide proposal that becomes publicly disclosed with respect to (I) a tender
offer or exchange offer for fifty percent (50%) or more of the then outstanding
shares of Issuer Common Stock (a "Share Proposal"), (II) a merger, consolidation
or other business combination with Issuer (a "Merger Proposal") or (III) any
acquisition of a material portion of the assets of Issuer (an "Asset Proposal"),
or (2) shall have acquired fifty percent (50%) or more of the then outstanding
shares of Issuer Common Stock (a "Share Acquisition"), and this Option is then
exercisable, then Grantee, in lieu of exercising the Option, shall have the
right at any time
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thereafter (for so long as the Option is exercisable under Section 2(a)) to
request in writing that Issuer pay, and promptly (but in any event not more than
five (5) business days) after the giving by Grantee of such request, Issuer
shall, subject to Section 2(c) below, pay to Grantee, in cancellation of the
Option, an amount in cash (the "Cancellation Amount") equal to
(i) the excess over the Option Price of the greater of (A) the
last sale price of a share of Issuer Common Stock as reported on the New
York Stock Exchange on the last trading day prior to the date of the
Exercise Notice, or (B)(1) the highest price per share of Issuer Common
Stock offered or proposed to be paid or paid by any such person or group
pursuant to or in connection with a Share Proposal, a Share Acquisition or
a Merger Proposal or (2) the aggregate consideration offered to be paid or
paid in any transaction or proposed transaction in connection with an Asset
Proposal, divided by the number of shares of Issuer Common Stock then
outstanding, multiplied by
(ii) the number of Option Shares then covered by the Option;
provided, however, that the Cancellation Amount shall be reduced by any amount
actually paid to Grantee by Issuer pursuant to Section 7.5(b) of the Merger
Agreement (the "Termination Fee"). If all or a portion of the price per share of
Issuer Common Stock offered, paid or payable or the aggregate consideration
offered, paid or payable for the assets of Issuer, each as contemplated by the
preceding sentence, consists of noncash consideration, such price or aggregate
consideration shall be the cash consideration, if any, plus the fair market
value of the non-cash consideration as determined by the investment bankers of
Issuer and the investment bankers of Grantee (or, if such investment bankers
cannot agree within ten (10) business days of such question being submitted for
such determination, then promptly by an independent investment banker chosen by
Grantee's investment bankers and reasonably acceptable to Issuer's investment
bankers).
(c) Following exercise of the Option by Grantee, in the event that
Grantee sells, pledges or otherwise disposes of (including, without limitation,
by merger or exchange) any of the Option Shares (a "Sale"), then any Termination
Fee due and payable by Issuer following such time shall be reduced to the extent
of the amounts received (whether in cash, loan proceeds, securities or
otherwise) by Grantee in such Sale less the exercise price of such Option Shares
sold in the Sale (the "Option Share Profit"); provided, however, that in no
event shall the Termination Fee be reduced below zero. If Issuer has paid to
Grantee the Termination Fee prior to a Sale, then Grantee shall immediately
remit to Issuer the Option Share Profit realized in
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such Sale, but only to the extent that such Option Share Profit, in the
aggregate with any other Option Share Profit realized in a Sale subsequent to
payment of the Termination Fee, is less than or equal to the amount of the
Termination Fee.
3. Payment of Option Price and Delivery of Certificate. (a) Any
Closings under Section 2 of this Stock Option Agreement shall be held at the
principal executive offices of Issuer, or at such other place as Issuer and
Grantee may agree.
(b) Subject to Section 3(c), at any Closing hereunder, (x) Grantee or
its designee will make payment to Issuer of the aggregate price for the Option
Shares being so purchased by delivery of a certified check, official bank check
or wire transfer of funds pursuant to Issuer's instructions payable to Issuer in
an amount equal to the product obtained by multiplying the Option Price by the
number of Option Shares to be purchased, and (y) upon receipt of such payment
Issuer will deliver to Grantee or its designee (which shall be a wholly owned
subsidiary of Grantee) a certificate or certificates representing the number of
validly issued, fully paid and non-assessable Option Shares so purchased, in the
denominations and registered in such names (which shall be Grantee or a wholly
owned subsidiary of Grantee) designated to Issuer in writing by Grantee.
(c) Notwithstanding the foregoing, in the event of any Closing
involving the payment of a Cancellation Amount, (x) Grantee will deliver to
Issuer for cancellation the Option and (y) Issuer or its designee will make
payment to Grantee of the Cancellation Amount by delivery of a certified check,
official bank check or wire transfer of funds pursuant to Grantee's
instructions.
4. Registration and Listing of Option Shares.
(a) Issuer agrees to use its reasonable best efforts to (i) effect as
promptly as possible upon the request of Grantee and (ii) cause to become and
remain effective for a period of not less than six (6) months (or such shorter
period as may be necessary to effect the distribution of such shares), the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and any applicable state securities laws, of all or any part of the
Option Shares as may be specified in such request; provided, however, that (i)
Grantee shall have the right to select the managing underwriter for any
underwritten offering of such Option Shares after consultation with Issuer,
which managing underwriter shall be reasonably acceptable to Issuer and (ii)
Grantee shall not be entitled to more than two (2) effective registration
statements hereunder.
(b) In addition to such demand registrations, if Issuer proposes to
effect a registration of Issuer Common Stock for its own account or for the
account of any other stockholder
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of Issuer, Issuer will give prompt written notice to all holders of Options or
Option Shares of its intention to do so and shall use its reasonable best
efforts to include therein all Option Shares requested by Grantee to be so
included. No registration effected under this Section 4(b) shall relieve Issuer
of its obligations to effect demand registrations under Section 4(a) hereof.
(c) Registrations effected under this Section 4 shall be effected at
Issuer's expense, including the fees and expenses of counsel to the holder of
Options or Option Shares, but excluding underwriting discounts and commissions
to brokers or dealers. In connection with each registration under this Section
4, Issuer shall indemnify and hold each holder of Options or Option Shares
participating in such offering (a "Holder"), its underwriters and each of their
respective affiliates harmless against any and all losses, claims, damages,
liabilities and expenses (including, without limitation, investigation expenses
and fees and disbursements of counsel and accountants), joint or several, to
which such Holder, its underwriters and each of their respective affiliates may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any registration statement (including any prospectus
therein), or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
other than such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) which arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in written information
furnished by a Holder to Issuer expressly for use in such registration
statement.
(d) In connection with any registration statement pursuant to this
Section 4, each Holder agrees to furnish Issuer with such information concerning
itself and the proposed sale or distribution as shall reasonably be required in
order to ensure compliance with the requirements of the Securities Act. In
addition, Grantee shall indemnify and hold Issuer, its underwriters and each of
their respective affiliates harmless against any and all losses, claims,
damages, liabilities and expenses (including without limitation investigation
expenses and fees and disbursements of counsel and accountants), joint or
several, to which Issuer, its underwriters and each of their respective
affiliates may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in written information furnished by any
Holder to Issuer expressly for use in such registration statement. In no event
shall the liability of any
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Holder or any affiliate thereof under this Section 4 be greater in amount than
the dollar amount of the proceeds (net of payment of all expenses) received by
such Holder upon the sale of the Option Shares giving rise to such
indemnification obligation.
(e) Upon the issuance of Option Shares hereunder, Issuer will use its
reasonable best efforts promptly to list such Option Shares with the New York
Stock Exchange or on such national or other exchange on which the shares of
Issuer Common Stock are at the time principally listed.
5. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
(a) Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has requisite power
and authority to enter into and perform this Stock Option Agreement.
(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Issuer and no other corporate
proceedings on the part of Issuer are necessary to authorize this Stock Option
Agreement or to consummate the transactions contemplated hereby. The Board of
Directors of Issuer has duly approved the issuance and sale of the Option
Shares, upon the terms and subject to the conditions contained in this Stock
Option Agreement, and the consummation of the transactions contemplated hereby.
This Stock Option Agreement has been duly and validly executed and delivered by
Issuer and, assuming this Stock Option Agreement has been duly and validly
authorized, executed and delivered by Grantee, constitutes a valid and binding
obligation of Issuer enforceable against Issuer in accordance with its terms.
(c) Issuer has taken all necessary action to authorize and reserve
for issuance and to permit it to issue, and at all times from the date of this
Stock Option Agreement through the Expiration Date will have reserved for
issuance upon exercise of the Option a number of authorized and unissued shares
of Issuer Common Stock equal to 19.9% of the number of shares of Issuer Common
Stock issued and outstanding on the date of this Stock Option Agreement (or such
other number as may be required pursuant to Section 10 hereof), each of which,
upon issuance pursuant to this Stock Option Agreement and when paid for as
provided herein, will be validly issued, fully paid and nonassessable, and shall
be delivered free and clear of all claims, liens, charges, encumbrances and
security interests and not subject to any preemptive rights.
(d) The execution, delivery and performance of this Stock Option
Agreement by Issuer and the consummation by it of
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the transactions contemplated hereby except as required by the HSR Act (if
applicable), and, with respect to Section 4, compliance with the provisions of
the Securities Act and any applicable state securities laws, do not require the
consent, waiver, approval, license or authorization of or result in the
acceleration of any obligation under, or constitute a default under, any term,
condition or provision of any charter or bylaw, or any indenture, mortgage,
lien, lease, agreement, contract, instrument, order, judgment, ordinance,
regulation or decree or any restriction to which Issuer or any property of
Issuer or its subsidiaries is bound, except where failure to obtain such
consents, waivers, approvals, licenses or authorizations or where such
acceleration or defaults could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on Issuer.
6. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that:
(a) Grantee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has requisite power
and authority to enter into and perform this Stock Option Agreement.
(b) The execution and delivery of this Stock Option Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Grantee and no other corporate
proceedings on the part of Grantee are necessary to authorize this Stock Option
Agreement or to consummate the transactions contemplated hereby. This Stock
Option Agreement has been duly and validly executed and delivered by Grantee
and, assuming this Stock Option Agreement has been duly executed and delivered
by Issuer, constitutes a valid and binding obligation of Grantee enforceable
against Grantee in accordance with its terms.
(c) Grantee or its designee is acquiring the Option and it will
acquire the Option Shares issuable upon the exercise thereof for its own account
and not with a view to the distribution or resale thereof in any manner not in
accordance with applicable law.
7. Covenants of Grantee. Grantee agrees not to transfer or
otherwise dispose of the Option or the Option Shares, or any interest therein,
except in compliance with the Securities Act and any applicable state securities
laws. Grantee further agrees to the placement of the following legend on the
certificates representing the Option Shares (in addition to any legend required
under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER EITHER (i) THE SECURITIES ACT
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OF 1933, AS AMENDED (THE "ACT"), OR (ii) ANY APPLICABLE STATE LAW
GOVERNING THE OFFER AND SALE OF SECURITIES. NO TRANSFER OR OTHER
DISPOSITION OF THESE SHARES, OR OF ANY INTEREST THEREIN, MAY BE MADE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND SUCH OTHER STATE LAWS OR PURSUANT TO EXEMPTIONS FROM REGISTRATION
UNDER THE ACT, SUCH OTHER STATE LAWS, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER."
8. Reasonable Best Efforts. Grantee and Issuer shall take, or cause
to be taken, all reasonable action to consummate and make effective the
transactions contemplated by this Stock Option Agreement, including, without
limitation, reasonable best efforts to obtain any necessary consents of third
parties and governmental agencies and the filing by Grantee and Issuer promptly
after the date hereof of any required HSR Act notification forms and the
documents required to comply with the HSR Act.
9. Certain Conditions. The obligation of Issuer to issue Option
Shares under this Stock Option Agreement upon exercise of the Option shall be
subject to the satisfaction or waiver of the following conditions:
(a) any waiting periods applicable to the acquisition of the Option
Shares by Grantee pursuant to this Stock Option Agreement under the HSR Act
shall have expired or been terminated;
(b) the representations and warranties of Grantee made in Section 6
of this Stock Option Agreement shall be true and correct in all material
respects as of the date of the Closing for the issuance of such Option Shares;
and
(c) no order, decree or injunction entered by any court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
in the United States shall be in effect which prohibits the exercise of the
Option or acquisition of Option Shares pursuant to this Stock Option Agreement.
10. Adjustments Upon Changes in Capitalization. In the event of any
change in the number of issued and outstanding shares of Issuer Common Stock by
reason of any stock dividend, stock split, recapitalization, merger, rights
offering, share exchange or other change in the corporate or capital structure
of Issuer, Grantee shall receive, upon exercise of the Option, the stock or
other securities, cash or property to which Grantee would have been entitled if
Grantee had exercised the Option and had been a holder of record of shares of
Issuer Common Stock on the record date fixed for determination of holders of
shares of Issuer Common Stock entitled to receive such stock
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or other securities, cash or property at the same aggregate price as the
aggregate Option Price of the Option Shares.
11. Expiration. The Option shall expire at the earlier of (x) the
Effective Time (as defined in the Merger Agreement), (y) one year after
termination of the Merger Agreement pursuant to Section 7.1(b)(ii) thereof (if
this Option is exercisable at the time of the event giving rise to such right of
termination) or Section 7.1(e) thereof or (z) on termination of the Merger
Agreement pursuant to its terms, other than as contemplated by clause (y) of
this sentence (such expiration date is referred to as the "Expiration Date").
12. General Provisions.
(a) Survival. All of the representations, warranties and covenants
contained herein shall survive a Closing and shall be deemed to have been made
as of the date hereof and as of the date of each Closing.
(b) Further Assurances. If Grantee exercises the Option, or any
portion thereof, in accordance with the terms of this Stock Option Agreement,
Issuer and Grantee will execute and deliver all such further documents and
instruments and use their reasonable best efforts to take all such further
action as may be necessary in order to consummate the transactions contemplated
thereby.
(c) Severability. It is the desire and intent of the parties that
the provisions of this Stock Option Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, in the event that any provision of
this Stock Option Agreement would be held in any jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Stock Option Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(d) Assignment. This Stock Option Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that Issuer shall not be entitled to assign or otherwise
transfer any of its rights or obligations hereunder.
(e) Specific Performance. The parties agree and acknowledge that in
the event of a breach of any provision of
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this Stock Option Agreement, the aggrieved party would be without an adequate
remedy at law. The parties therefore agree that in the event of a breach of any
provision of this Stock Option Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision, as well as to obtain damages for breach of this Stock Option
Agreement. By seeking or obtaining any such relief, the aggrieved party will not
be precluded from seeking or obtaining any other relief to which it may be
entitled.
(f) Amendments. This Stock Option Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Grantee and Issuer.
(g) Notices. 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 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:
If to Issuer:
Xxxxxx-Xxxxxx, Inc.
0000 Xxxxxxxxxx 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.
If to Grantee:
JP Foodservice, Inc.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopy No: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(h) Headings. The headings contained in this Stock Option Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Stock Option Agreement.
(i) Counterparts. This Stock Option Agreement may be executed in one
or more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
(j) Governing Law. This Stock Option Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
(k) Jurisdiction and Venue. Each of Issuer and Grantee hereby agrees
that any proceeding relating to this Stock Option Agreement shall be brought in
a state court of Delaware. Each of Issuer and Grantee hereby consents to
personal jurisdiction in any such action brought in any such Delaware court,
consents to service of process by registered mail made upon such party and such
party's agent and waives any objection to venue in any such Delaware court or to
any claim that any such Delaware court is an inconvenient forum.
(l) Entire Agreement. This Stock Option Agreement, the Stock Option
Agreement of even date herewith pursuant to which Grantee grants to Issuer an
option to purchase shares of Grantee's common stock, the Confidentiality
Agreement and the Merger Agreement and any documents and instruments referred to
herein and therein constitute the entire agreement between the parties hereto
and thereto with respect to the subject matter hereof and thereof and supersede
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof and thereof. This Stock
Option Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the successors and permitted assigns of the parties hereto.
Nothing in this Stock Option Agreement shall be construed to give any person
other than the parties to this Stock Option Agreement or their respective
successors or permitted assigns any legal or equitable right, remedy or claim
under or in respect of this Stock Option Agreement or any provision contained
herein.
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(m) Expenses. Except as otherwise provided in this Stock Option
Agreement, each party shall pay its own expenses incurred in connection with
this Stock Option Agreement.
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IN WITNESS WHEREOF, the parties have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
JP FOODSERVICE, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
XXXXXX-XXXXXX, INC.
By: /s/ Xxxx Xxx Xxxxxxxxxxxx
--------------------------------
Name: Xxxx Xxx Xxxxxxxxxxxx
Title: Chairman and Chief
Executive Officer
[XXXXXX-XXXXXX STOCK OPTION AGREEMENT]
