Exhibit 2.2
FORM OF
STOCK VOTING AGREEMENT
STOCK VOTING AGREEMENT (this "Agreement"), dated as of June ____, 1998 by
and between ______________________ ("Shareholder") and CONAGRA, INC., a Delaware
corporation ("Parent").
RECITALS:
(a) Concurrently herewith, Parent, CAG 40, Inc., a North Carolina
corporation and a wholly-owned subsidiary of Parent (the
"Merger Sub"), and GoodMark Foods, Inc., a North Carolina
corporation (the "Company"), are entering into an Agreement
and Plan of Merger of even date herewith (such Agreement in
the form attached hereto as Exhibit A being the "Merger
Agreement"), pursuant to which the Merger Sub will merge with
and into the Company (the "Merger"); and
(b) Shareholder owns as of the date hereof, approximately
_____________ shares of common stock, $.01 par value per share
(the "Common Stock"), of the Company (such Common Stock
referred to as the "Existing Shares," and, together with any
shares of Common Stock acquired after the date hereof and
prior to the termination hereof, hereinafter collectively
referred to as the "Shares"); and
(c) Parent and Merger Sub have entered into the Merger Agreement
in reliance on and in consideration of Shareholder's
representations, warranties, covenants and agreements
hereunder.
AGREEMENT:
In consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, and intending to be legally
bound hereby, it is agreed as follows:
1. Agreement to Vote. Shareholder hereby revokes any and all
previous proxies with respect to the Shares and irrevocably agrees to vote and
otherwise act (including
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pursuant to written consent) with respect to all of the Shares, for the approval
and the adoption of the Merger Agreement, as the same may be amended from time
to time in any manner which does not reduce or alter the form of the
consideration to be received by the shareholders of the Company incident to the
Merger (except to the extent agreed to by the shareholders), all agreements
related to the Merger and any actions related thereto, and against any proposal
or transaction which could prevent or delay the consummation of the transactions
contemplated by this Agreement or the Merger Agreement, at any meeting or
meetings of the shareholders of the Company, and at any adjournment,
postponement or continuation thereof which does not reduce or alter the form of
the consideration to be received by the shareholders of the Company incident to
the Merger (except to the extent agreed to by the shareholders), at which the
Merger Agreement and other related agreements (or any amended version or
versions thereof), or such other actions are submitted for the consideration and
vote of the shareholders of the Company. The foregoing shall remain in effect
with respect to the Shares until the termination of this Agreement. Shareholder
hereby agrees to, execute such additional documents as Parent may reasonably
request to effectuate the foregoing.
2. Representations and Warranties of Shareholder. Shareholder
represents and warrants to Parent as follows:
2.1 Ownership of Shares. On the date hereof, the Existing Shares
are all of the Shares currently owned by Shareholder. On the
Closing Date, the Shares will constitute all of the shares of
Common Stock owned by Shareholder. On the date hereof and on
the date of the Company Shareholders Meeting (as defined in
the Merger Agreement), the Existing Shares represent, and will
represent, at least ______________ of the outstanding voting
power of the Company. Shareholder does not have any rights to
acquire any additional shares of Common Stock (other than
pursuant to options disclosed in the Company's Proxy Statement
dated August 18, 1997). Shareholder currently has, and at
Closing will have (other than Shares transferred in accordance
with Section 3.2 hereof), good, valid and marketable title to
the Shares, free and clear of all liens, encumbrances,
restrictions, options, warrants, rights to purchase and claims
of every kind (other than the encumbrances created by this
Agreement and other than restrictions on transfer under
applicable Federal and State securities laws).
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2.2 Authority; Binding Agreement. Shareholder has the full legal
right, power and authority to enter into and perform all of
his obligations under this Agreement. The execution and
delivery of this Agreement by Shareholder will not violate any
other agreement to which Shareholder is a party including,
without limitation, any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly
executed and delivered by Shareholder and constitutes a legal,
valid and binding agreement of Shareholder, enforceable in
accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws, now or hereafter in effect
affecting creditors, rights and remedies generally or general
principles of equity. Neither the execution and delivery of
this Agreement nor the consummation by Shareholder of the
transactions contemplated hereby will (i) violate, or require
any consent, approval or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation
applicable to Shareholder or the Shares or (ii) constitute a
violation of, conflict with or constitute a default under, any
contract, commitment, agreement, understanding, arrangement or
other restriction of any kind to which Shareholder is a party
or by which Shareholder is bound.
2.3 Reliance on Agreement. Shareholder understands and
acknowledges that Merger Sub and Parent each are entering into
the Merger Agreement in reliance upon Shareholder's execution,
delivery and performance of this Agreement. Shareholder
acknowledges that the agreement set forth in Section 1 is
granted in consideration for the execution and delivery of the
Merger Agreement by Merger Sub and Parent.
3. Certain Covenants of Shareholder. Except in accordance with
the provisions of this Agreement, Shareholder agrees with, and covenants to,
Parent as follows:
3.1 Transfer. Shareholder shall not (i) except as set forth in
Section 3.2 below, transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale,
gift, pledge, assignment, encumbrance or other disposition) or
consent to any transfer of, any or all of the Shares or any
interest therein, except pursuant to the Merger, (ii) enter
into any contract, option or other agreement or understanding
with respect to any transfer of any or all such Shares or any
interest therein, (iii) grant any proxy, power-of- attorney or
other authorizations in or with respect to such Shares or (iv)
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deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares.
Shareholder will submit to the Company, promptly after the
execution of this Agreement, any and all certificates
representing the Shares and Shareholder agrees with, and
consents to (i) the inscription on all such certificates prior
to their prompt return to Shareholder of the following legend
by the Company on such certificates: "The shares of Common
Stock, $.01 par value, of GoodMark Foods, Inc., represented by
this certificate are subject to a Stock Voting Agreement,
dated as of June ____, 1998, and may not be sold or otherwise
transferred, except in accordance therewith. Copies of such
Agreement may be obtained at the principal executive office of
GoodMark Foods, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. Such restrictions on sale or other transfer expire and
terminate, whether or not this legend remains on any
certificate representing such shares of Common Stock and
without any notice, action or demand of any person, on the
date such Agreement terminates"; and (ii) the entering of stop
transfer orders with the transfer agent and the registrar of
the Company against the transfer of the Shares other than in
compliance with the requirements of this Agreement, such stop
transfer orders to expire by their terms on the date this
Agreement terminates with no notice, action or demand by
Shareholder, Parent or the Company.
3.2 Permitted Transfer. Notwithstanding Section 3.1 hereof to the
contrary, Shareholder may transfer any of the Shares to the
Shareholder's spouse, lineal descendants of the Shareholder or
to a trust which is substantially for the benefit of
Shareholder, his spouse or his lineal descendants (herein
"Permitted Transferee") provided that (a) Shareholder shall
provide written notice to Purchaser at least thirty (30) days
prior to such transfer, which notice shall specify the
proposed transferee and all terms and conditions relating to
said proposed transfer, (b) at least fifteen (15) days prior
to any such transfer, Shareholder shall provide at his expense
a written opinion of nationally or regionally recognized tax
counsel, in form and substance reasonably acceptable to
Parent, that such transfer will not adversely affect the
treatment of the Merger as a reorganization within the meaning
of Section 368 of the Code, (c) Shareholder shall have
received from Parent at least fifteen (15) days prior to such
transfer notice that such transfer will not adversely affect
the Merger qualifying for pooling of interests treatment under
APB 16, and (d) prior to any such transfer, such Permitted
Transferee shall agree in writing to take
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such Shares subject to, and comply with, all of the provisions
of this Agreement, a copy of which writing shall be delivered
to Parent.
3.3 Solicitation. Prior to the Effective Time, Shareholder agrees
in his capacity as a Shareholder of the Company, that he shall
not, and he shall use his reasonable best efforts to cause his
affiliates, and their respective agents or representatives not
to, directly or indirectly, (i) solicit or initiate (including
by way of furnishing or disclosing non-public information) any
inquiries or the making of any proposal with respect to any
merger, consolidation or other business combination involving
the Company or any Subsidiary of the Company or the
acquisition of all or any significant part of the assets or
capital stock of the Company, including the Shares, or any
Subsidiary of the Company (an "Acquisition Transaction") or
(ii) negotiate, explore or otherwise engage in discussions
with any person (other than Parent and its representatives)
with respect to any Acquisition Transaction, or which may
reasonably be expected to lead to a proposal for an
Acquisition Transaction or enter into any agreement,
arrangement or understanding with respect to any such
Acquisition Transaction or which would require the Shareholder
to abandon, terminate or fail to perform his obligations
hereunder or to vote for, or otherwise support, in his
capacity as a shareholder, such Acquisition Transaction.
3.4 Notifications. Shareholder shall, while this Agreement is in
effect, notify Parent promptly, but in no event later than two
days, of the number of any shares of Common Stock acquired by
Shareholder after the date hereof.
4. Delivery of Affiliate Letter. In connection with the execution
of this Agreement, Shareholder shall execute and deliver to Parent on the date
hereof an Affiliate Letter substantially in the form attached hereto as Exhibit
A.
5. Termination. This Agreement shall terminate on the earlier of
(i) the Effective Time (as defined in the Merger Agreement) or (ii) immediately
upon the termination of the Merger Agreement in accordance with its terms.
6. Action in Shareholder Capacity Only. Shareholder makes no
agreement or understanding herein as director or officer of the Company. The
Shareholder signs solely in his capacity as a record holder and beneficial owner
of the Shares, and nothing herein
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shall limit or affect any actions taken in his capacity as an officer or
director of the Company, including, without limitation, the exercise of his
duties as a director to the Company and its other shareholders.
7. Miscellaneous.
7.1 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and
shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the
addresses specified below (or at such other address for a
party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon
receipt thereof). Any such notice shall be effective upon
receipt, if personally delivered or telecopied or one day
after delivery to a courier for next-day delivery.
If to Parent:
ConAgra, Inc.
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▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President/Controller
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, North, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇.
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▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Shareholder:
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Telecopier: _______________________
with a copy to:
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Attention: ________________________
Telecopier: __________________________
7.2 Entire Agreement. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement
and supersede all other prior agreements and understandings,
both written and oral, among the parties or any of them, with
respect to the subject matter contained herein.
7.3 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties
hereto.
7.4 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors, assigns and personal representatives, but neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties.
7.5 Governing Law. This Agreement, and all matters relating
hereto, shall be governed by, and construed in accordance with
the laws of the State of North Carolina without giving effect
to the principles of conflicts of laws thereof.
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7.6 Injunctive Relief; Jurisdiction. Shareholder agrees that
irreparable damage would occur and that Parent would not have
any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is
accordingly agreed that Parent shall be entitled to an
injunction or injunctions to prevent breaches by Shareholder
of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States
located in the State of North Carolina or in any North
Carolina state court (collectively, the "Courts"), this being
in addition to any other remedy to which they are entitled at
law or in equity. In addition, each of the parties hereto (i)
irrevocably consents to the submission of such party to the
personal jurisdiction of the Courts in the event that any
dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat such party to the personal
jurisdiction by motion or other request for leave from any of
the Courts and (iii) agrees that such party will not bring any
action relating to this Agreement or any of the transactions
contemplated hereby in any court other the Courts. Shareholder
hereby appoints, and shall give prompt notice of such
appointment to, the law firm of Smith, Anderson, Blount,
Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, as his authorized agent
(the "Authorized Agent") upon which process may be served in
any action based on this Agreement which may be instituted in
the Courts by Parent, and Shareholder expressly accepts the
jurisdiction of any such Court in respect to such action. Such
appointment shall be irrevocable. Shareholder represents and
warrants that the Authorized Agent has agreed to act as said
agent for service of process, and Shareholder agrees to take
any and all action, including, without limitation, the filing
of any and all documents and instruments, which may be
necessary to continue such appointment in full force and
effect. Service of process upon the Authorized Agent and
written notice of such service to Shareholder shall be deemed,
in every respect, effective service of process upon
Shareholder.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
document.
7.8 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective
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to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
CONAGRA, INC.
______________________________ By: ______________________________
Name:
Its:
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