EX-10.10
================================================================================
VOTING AGREEMENT
among
THE STOCKHOLDERS NAMED HEREIN
and
KONINKLIJKE AHOLD N.V.
------------------
Dated as of
April 14, 2000
------------------
================================================================================
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of April 14, 2000, by
and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. Coin, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(each a "Stockholder" and collectively, the "Stockholders", each such
Stockholder acting in his capacity as a stockholder of PEAPOD, INC., a Delaware
corporation (the "Company") and not as an officer or director of the Company)
and KONINKLIJKE AHOLD N.V., a public company with limited incorporated liability
incorporated under the laws of the Netherlands (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company proposes to enter into a Purchase Agreement, dated as
of April 14, 2000 (the "Purchase Agreement") with the Purchaser, providing for
the sale by the Company of shares of its Series B Convertible Preferred Stock,
par value $.01 per share ("Series B Preferred Stock"), and certain warrants (the
"Warrants") to purchase shares of Common Stock, par value $.01 per share (the
"Common Stock"), of the Company to the Purchaser; and
WHEREAS, the Purchase Agreement contemplates the purchase by the Purchaser
of the Series B Preferred Stock and the Warrants in one or more closings, but
not to exceed three (3) (each, a "Closing"), with each Closing subject to
certain conditions, including the approval by the holders of the outstanding
shares of Common Stock of the Purchase Agreement and other Documents (as defined
below) and the transactions contemplated thereby; and
WHEREAS, as a condition to the willingness of the Purchaser to enter into
the Purchase Agreement, and as an inducement to the Purchaser to do so, each
Stockholder has agreed for the benefit of the Company as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" shall mean, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person and, in the case of a person
who is an individual, shall include (i) members of such specified person's
immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K
under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of
which are such specified person or members of such person's immediate family as
determined in accordance with the foregoing clause (i). For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such person (in particular the voting and
disposition of shares of Common Stock held directly or indirectly by such
person), directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "affiliated," "controlling"
and "controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, neither the Purchaser nor any of its Affiliates shall be deemed
Affiliates of the Company for purposes of this Agreement.
"Agreement" shall have the meaning set forth in the Preamble.
"Alternative Transaction" shall have the meaning set forth in Section
3.7(a).
"Amended and Restated Bylaws" shall mean the Amended and Restated By-Laws
of the Company.
"Amended and Restated Certificate of Incorporation" shall mean the Amended
and Restated Certificate of Incorporation of the Company.
"beneficial owner" of a security shall mean any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship, or
otherwise has (i) the power to vote, or to direct the voting of, such security
or (ii) the power to dispose, or to direct the disposition of, such security, or
the ability to acquire such voting or dispositive power.
"Certificate of Designations" shall mean the Certificate of Designations
relating to the Series B Preferred Stock.
"Closing" shall have the meaning set forth in the Recitals.
"Common Stock" shall have the meaning set forth in the Recitals.
"Company" shall have the meaning set forth in the Recitals.
"Credit and Security Agreements" shall have the meaning set forth in the
Purchase Agreement.
"Documents" shall mean (i) this Agreement, (ii) the Purchase Agreement,
(iii) the Warrants, (iv) the Certificate of Designations, (v) the Registration
Rights Agreement, (vi) the Services Agreement, (vii) the Institutional
Stockholders Voting Agreement, (viii) the Joint Development and License
Agreement and (ix) the Credit and Security Agreements.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Governmental Authority" shall mean any foreign, Federal, state or local
court or governmental or regulatory authority.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and applicable rules and regulations and any similar state
acts.
"Institutional Stockholders Voting Agreement" shall mean the Voting
Agreement, dated as of the date hereof, by and among the Purchaser, Tribune
National Marketing Company and Nevis Capital Management, Inc.
"Joint Development and License Agreement" shall have the meaning set forth
in the Purchase Agreement.
"Lien" shall mean any pledge, lien, claim, restriction, charge or
encumbrance of any kind.
"Notices" shall have the meaning set forth in Section 4.6.
"person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Purchase Agreement" shall have the meaning set forth in the Recitals.
"Purchaser" shall have the meaning set forth in the Recitals.
"Registration Rights Agreement" shall mean the registration rights
agreement to be entered into by the Company and the Purchaser pursuant to the
Purchase Agreement.
"Rights Agreement" shall have the meaning set forth in the Purchase
Agreement.
"Securities" shall mean all shares of Common Stock (and all other shares or
securities issued or issuable in respect thereof) together with the associated
Rights (as defined in the Rights Agreement) as of the date hereof and hereafter
acquired.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Services Agreement" shall mean the services agreement to be entered into
by the Company and the Purchaser or one of its Affiliates pursuant to the
Purchase Agreement.
"Stockholder" or "Stockholders" shall have the meaning set forth in the
Preamble.
"subsidiary" shall mean, with respect to any person, (a) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such person,
by a subsidiary of such person, or by such person and one or more subsidiaries
of such person, (b) a partnership in which such person or a subsidiary of such
person is, at the date of determination, a general partner of such partnership,
or (c) any other person (other than a corporation) in which such person, a
subsidiary of such person or such person and one or more subsidiaries of such
person, directly or indirectly, at the date of determination thereof, has (i) at
least a majority ownership interest, (ii) the power to elect or direct the
election of the directors or other governing body of such person, or (iii) the
power to direct or cause the direction of the affairs or management of such
person. For purposes of this definition, a person is deemed to own any capital
stock or other ownership interest if such person has the right to acquire such
capital stock or other ownership interest, whether through the exercise of any
purchase option, conversion privilege or similar right.
"Subsidiary" shall mean a subsidiary of the Company.
"Termination Date" shall have the meaning set forth in Section 4.3.
"Warrants" shall have the meaning set forth in the Recitals.
ARTICLE II
COVENANTS OF THE STOCKHOLDERS
Section 2.1 Agreement to Vote. At any meeting of the stockholders of the
Company held on or prior to the Termination Date (as defined in Section 4.3),
however called, and at every adjournment or postponement thereof, or in
connection with any written consent of the holders of any class or classes of
the capital stock of the Company prior to the Termination Date, each Stockholder
shall vote and cause each of its controlled Affiliates to vote all of the
Securities with respect to which it has the right to vote or direct the vote (as
of the record date for such meeting of stockholders), (a) in favor of the
Purchase Agreement, the other Documents and all of the transactions contemplated
by the Purchase Agreement and the other Documents, all matters requiring
approval of stockholders under the listing requirements of the Nasdaq Stock
Market in connection with such transactions, and any actions required in
furtherance hereof, including, without limitation, (i) the issuance of the
Series B Preferred Stock and Warrants at the Closings, (ii) the amendment and
restatement of the Amended and Restated Certificate of Incorporation to read in
its entirety as set forth in the Purchase Agreement, and (iii) the election of
the directors nominated by the Purchaser to the Board of Directors of the
Company who are in the class of directors to be voted upon at the Company's
Stockholder's Meeting (as defined in the Purchase Agreement), (b) against any
Alternative Transaction, (c) except as otherwise agreed to in writing in advance
by the Purchaser, against the following actions (other than the transactions
contemplated by the Purchase Agreement or any of the other Documents): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries; (ii) a
sale, lease or transfer of substantially all of the assets of the Company or any
of its Subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its Subsidiaries; (iii) (A) any change in
the persons who constitute the board of directors of the Company inconsistent
with the composition of the board of directors as contemplated by the Documents;
(B) any change in the present capitalization of the Company or any amendment of
the Amended and Restated Certificate of Incorporation or the Amended and
Restated Bylaws; (C) any other material change in the Company's corporate
structure or business; or (D) any other action or agreement that, directly or
indirectly, is inconsistent with or that could reasonably be expected, directly
or indirectly, to impede, interfere with, delay, postpone or materially
adversely affect the transactions contemplated by the Purchase Agreement and the
other Documents and (d) in favor of the Purchaser's nominees to the Board of
Directors as contemplated by the Purchase Agreement. None of the Stockholders
shall enter into, or permit any of its controlled Affiliates to enter into, any
agreement or understanding with any person prior to the Termination Date,
directly or indirectly, to vote, grant any proxy or power of attorney, give
instructions or enter into a voting agreement with respect to the voting of his
or its Securities in any manner inconsistent with the preceding sentence.
Section 2.2 Proxies and Voting Agreements.
(a) Each Stockholder has revoked, and caused its controlled Affiliates to
revoke, any and all previous proxies granted with respect to his or its
Securities with respect to the matters set forth in Section 2.1.
(b) Prior to the Termination Date, each of the Stockholders shall not, and
shall cause each of its controlled Affiliates not to, directly or indirectly,
except as contemplated hereby, grant any proxies or powers of attorney with
respect to their Securities, deposit any of their Securities into a voting trust
or enter into a voting agreement with respect to any of their Securities, in
each case with respect to the matters set forth in Section 2.1.
Section 2.3 Irrevocable Proxy. Concurrently with the execution of this
Agreement, each Stockholder shall deliver, and shall cause each of its
Affiliates to deliver, to Ton van Tielraden a proxy in the form attached hereto
as Exhibit A, which, prior to the Termination Date, shall be irrevocable to the
extent provided by the Delaware General Corporation Law, covering such
Stockholder's or Affiliate's Securities. Each Stockholder shall take further
action or execute such other instruments as may be reasonably necessary to
effectuate the intent of this proxy.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants to the Company, as to
himself that:
Section 3.1 Ownership. Each Stockholder is the record and beneficial owner
of the equity securities of the Company listed beside such Stockholder's name on
Schedule I attached hereto as of the date hereof. The equity securities set
forth beside the name of each Stockholder on Schedule I constitute all of the
shares of capital stock of the Company owned of record or beneficially by such
Stockholder as of the date hereof. All of such securities are issued and
outstanding, and except as set forth on Schedule I attached hereto, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of capital stock of the Company. The
securities listed beside each such Stockholder's name on Schedule I attached
hereto and the certificates representing such securities are now, and at all
times during the term hereof will be, held by such Stockholder, or by a nominee
or custodian for the benefit of such Stockholder, free and clear of all Liens,
proxies, voting trusts or other agreement, arrangement or restriction with
respect to the voting of such securities that would prohibit such Stockholder
from complying with Section 2.1 hereof with respect to such securities (other
than as contemplated by this Agreement).
Section 3.2 Authority; No Conflicts. Each Stockholder has the authority and
has been duly authorized by all necessary action (including consultation,
approval or other action by or with any other person), to execute, deliver and
perform this Agreement and consummate the transactions contemplated hereby. Such
actions by such Stockholder require no action by, or in respect of, or filing
with, any Governmental Authority with respect to such Stockholder other than any
required filings under Section 13 of the Exchange Act. None of the execution and
delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated hereby or compliance by such
Stockholder with any of the provisions hereof shall (A) conflict with or result
in any breach of or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound, or
(B) violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
Section 3.3 Binding Effect. This Agreement has been duly executed and
delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 3.4 No Finder's Fees. Except as disclosed pursuant to the Purchase
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
Section 3.5 Reliance by the Purchaser. Each Stockholder understands and
acknowledges that the Purchaser is entering into the Purchase Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
Section 3.6 Commercially Reasonable Efforts. Prior to the Termination Date,
each Stockholder, in his or her capacity as a stockholder of the Company, shall
use commercially reasonable efforts to assist and cooperate with the Company in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by the Documents, including (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings (including
any necessary filings under the HSR Act, if any) and the taking of all
reasonable steps as may be necessary to obtain an approval or waiver from, or to
avoid an action or proceeding by, any Governmental Authority, (ii) the obtaining
of all necessary consents, approvals or waivers from third parties, (iii) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging any of the Documents or the consummation of any of
the transactions contemplated by any of the Documents, including seeking to have
any stay or temporary restraining order entered by any court or other
Governmental Authority vacated or reversed, and (iv) the execution and delivery
of any additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, the Documents.
Section 3.7 No Solicitation; Restrictions on Transfers. (a) Prior to the
Termination Date, such Stockholder, in his capacity as a stockholder of the
Company, shall not, and shall not permit any of its controlled Affiliates or
representatives to, directly or indirectly, (i) initiate, solicit or entertain
offers from, negotiate with or in any manner knowingly encourage, discuss,
accept, or consider any proposal of any other person relating to (w) the
acquisition of the capital stock of the Company, or any Subsidiary, securities
convertible into or exchangeable for shares of capital stock of the Company or
any Subsidiary, (x) the acquisition of the Company's assets or business, in
whole or in part, whether directly or indirectly, through purchase, merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or otherwise, (y) the incurrence of indebtedness by the Company or any
Subsidiary, or (z) any other transaction the consummation of which could
reasonably be expected to impede, interfere with, prevent, delay or dilute the
benefits to the Purchaser of the transactions contemplated by the Documents
(other than the transactions contemplated by the Purchase Agreement, sales of
inventory in the ordinary course, and shares issued upon the exercise of
existing stock options or warrants, and the shares permitted to be sold by each
Stockholder pursuant to the proviso in Section 3.7(c)) (any of the foregoing
being an "Alternative Transaction"), (ii) initiate, participate, engage in, or
agree to initiate, participate or engage in negotiations or discussions
concerning, or provide to any person or entity any information or data relating
to the Company or any Subsidiary, or otherwise cooperate with or assist or
participate in, knowingly facilitating or encouraging, any inquiries or the
making of any proposal that constitutes an Alternative Transaction, (iii) in
connection with any Alternative Transaction, require the Company to abandon,
terminate or fail to consummate the transactions contemplated by the Documents,
(iv) grant any waiver or release under or amend any standstill, confidentiality
or similar agreement entered into by the Company or any of his Affiliates or
representatives; (v) agree to, approve or recommend any Alternative Transaction,
or (vi) take any other action inconsistent with the obligations and commitments
assumed by such Stockholder and its controlled Affiliates pursuant to this
Agreement. Such Stockholder shall, and shall cause his controlled Affiliates to,
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(b) Prior to the Termination Date, such Stockholder shall, and shall cause
his Affiliates to promptly (but in any event within twenty-four (24) hours of
receipt or occurrence thereof) advise the Company and the Purchaser orally and
in writing of any request for information directed to him with respect to, or of
any inquiry or proposal regarding any Alternative Transaction directed to him,
the material terms and conditions of such proposal and the identity of the
person making such proposal and provide to the Purchaser copies of any written
documentation provided to such Stockholder by such person making such proposal
or by any representative of such person that is material to understanding or
evaluating such request, Alternative Transaction or inquiry which is received by
it from the person (or from any representatives of such person) making such
Alternative Transaction, inquiry or proposal. Each Stockholder and its
Affiliates will keep the Company and the Purchaser fully informed of any such
proposal.
(c) Prior to the Termination Date, such Stockholder shall not (i) directly
or indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the securities listed beside its name on Schedule I attached hereto or any
interest therein or any shares of Common Stock issuable upon the exercise of
stock options or warrants; (ii) except as contemplated by this Agreement, grant
any proxies or powers of attorney, deposit any such securities into a voting
trust or enter into a voting agreement with respect to any such securities; or
(iii) take any action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing such Stockholder from performing such Stockholder's obligations under
this Agreement; provided however, that each of Tasso H. Coin and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ shall each be permitted to sell, transfer or otherwise dispose of up
to 100,000 shares in one or more transactions, during any period of ninety (90)
consecutive days from the date hereof through the Termination Date.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall not, for a period of two
(2) years from the date hereof (i) directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, transfer, tender, pledge, encumbrance
assignment or other disposition of, more than 10,000 shares of the Company in
any fiscal quarter and (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit such shares into a voting trust or enter
into a voting agreement with respect to any such shares; provided, however, that
each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ may transfer or assign such shares
held by each in the Company to their respective children or to a trust for the
sole benefit of their respective children so long as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or, as the
case may be, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ continue to be employed by the Company.
Section 3.8 Releases. Each Stockholder hereby fully, unconditionally and
irrevocably releases, effective as of the first Closing, any and all claims and
causes of action that such Stockholder has or may have against the Company or
any Subsidiary or any present or former director, officer, employee or agent of
the Company or any Subsidiary arising or resulting from or relating to any act,
omission, event or occurrence prior to the date hereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 4.2 Specific Performance. Each Stockholder agrees that the
Purchaser would be irreparably damaged if for any reason such Stockholder fails
to perform any of such Stockholder's obligations under this Agreement, and that
the Purchaser would not have an adequate remedy at law for money damages in such
event. Accordingly, the Purchaser shall be entitled to seek specific performance
and injunctive and other equitable relief to enforce the performance of this
Agreement by each Stockholder. This provision is without prejudice to any other
rights that the Purchaser may have against such Stockholder for any failure to
perform its obligations under this Agreement.
Section 4.3 Amendments; Termination. Neither this Agreement, nor any of the
terms or provisions contained herein, may be waived, modified or amended without
the prior written consent of the Purchaser, which consent may be withheld in the
sole and absolute discretion of any Purchaser. No amendment, modification or
termination of this Agreement shall be binding upon any other party unless
executed in writing by the parties hereto intending to be bound thereby. This
Agreement shall terminate, except with respect to liability for prior breaches
thereof, upon the earlier to occur of (i) May 1, 2000 if the Purchase Agreement
has not yet been entered into, (ii) immediately following the Stockholder
Meeting (as defined in the Purchase Agreement), and (iii) the expiration of the
seven-month period commencing on the date hereof (the date of the earliest of
such events being the "Termination Date"); provided that, the provisions of
Section 2.1(c)(iii)(A); Section 2.1(d) and Section 3.7(d) shall survive any
termination of this Agreement pursuant to Section 4.3(ii) if Stockholder
Approval (as defined in the Purchase Agreement) is obtained at the Stockholder
Meeting.
Section 4.4 Successors and Assigns. This Agreement and the rights, duties
and obligations hereunder may not be assigned or delegated by any Stockholder
without the prior written consent of the Purchaser. Except as provided in the
preceding sentence, any assignment or delegation of rights, duties or
obligations hereunder made without the prior written consent of the Purchaser
shall be void and of no effect. This Agreement and the provisions hereof shall
be binding upon and shall inure to the benefit of each of the parties and their
respective successors and permitted assigns.
Section 4.5 Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Securities of such Stockholder
and, except with respect to the Securities transferred in accordance with
Section 3.7(c), shall be binding upon any person to which legal or beneficial
ownership of such shares shall pass, whether by operation of law or otherwise.
Section 4.6 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively, "Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by a reputable air courier service
with tracking capability, with charges prepaid, or transmitted by hand delivery
or facsimile, addressed as set forth below, or to such other address as such
party shall have specified most recently by written notice. Notice shall be
deemed given on the date of service or transmission if personally served or
transmitted by facsimile. Notice otherwise sent as provided herein shall be
deemed given on the next business day following delivery of such notice to a
reputable air courier service (a) if to any Stockholder, to it at the
address(es) or facsimile number(s) set forth on Schedule II hereto, with a copy
to the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, and (b) if to the Purchaser, to it at the following contact
information:
Koninklijke Ahold NV
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Ton van Tielraden, Esq.
Facsimile: (▇▇-▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. / ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 4.7 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York, and each party hereto submits to the
non-exclusive jurisdiction of the state and federal courts within the County of
New York in the State of New York. Any legal action or proceeding with respect
to this Agreement may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, each party hereto hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each party hereto further irrevocably
consents to the service of process out of any of the aforementioned courts in
any action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address set forth in
Section 4.6, such service to become effective seven days after such mailing.
Nothing herein shall affect the right of the Purchaser to serve process in any
of the matters permitted by law or to commence legal proceedings or otherwise
proceed against any of the Stockholders in any other jurisdiction. Each party
hereto hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement
Section 4.8 Entire Agreement. This Agreement (including all agreements
entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written, with respect to the
subject matter hereof.
Section 4.9 Waivers and Extensions. Subject to Section 4.3, any party to
this Agreement may waive any right, breach or default which such party has the
right to waive, provided that such waiver will not be effective against the
waiving party unless it is in writing, is signed by such party and the
Purchaser, and specifically refers to this Agreement. Waivers may be made in
advance or after the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any breach of any
agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
Section 4.10 Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of any
provision of this Agreement.
Section 4.11 Exhibits and Schedules. Each of the annexes, exhibits and
schedules referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
Section 4.12 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
Section 4.13 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
Section 4.14 Counterparts; Facsimile. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument. This
Agreement may be delivered by a party via facsimile; provided, that, the
originally executed signature pages and original documents are delivered to the
appropriate parties within two (2) business days.
Section 4.15 Further Assurances. Each party hereto, upon the request of any
other party hereto, shall do all such further acts and execute, acknowledge and
deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by this Agreement.
Section 4.16 Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto, including
any Purchaser, of any other rights or the seeking of any remedies against any
other party hereto.
IN WITNESS WHEREOF, the Company and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
KONINKLIJKE AHOLD N.V.
By:__________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
TASSO H. COIN
_________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_________________________