STOCKHOLDER AGREEMENT
THIS AGREEMENT, dated as of October 8, 1996, among ▇▇▇▇-▇▇▇▇▇ COMPANY, a
Delaware corporation ("Parent"), NFC ACQUISITION CORPORATION, a Delaware
corporation and a wholly owned subsidiary of Parent ("Acquisition Sub"), and the
individuals listed on Schedule I hereto (each a "Stockholder" and, collectively,
the "Stockholders").
WHEREAS, concurrently herewith, Parent, Acquisition Sub and Super Food Services,
Inc., a Delaware corporation (the "Company"), are entering into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to time,
the "Merger Agreement") pursuant to which Acquisition Sub will be merged with
and into the Company (the "Merger");
WHEREAS, capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Merger Agreement; and
WHEREAS, as an inducement and a condition to entering into the Merger Agreement,
Parent and Acquisition Sub have 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 premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Definitions. For purposes of this Agreement:
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean having ownership of record or "beneficial ownership" of such
securities (as determined pursuant to Rule l3d-3 under the Exchange Act),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would constitute a
"group" as within the meanings of Section 13(d) (3) of the Exchange Act.
"Company Common Stock" shall mean at any time the Common Stock, par value $1.00
per share, of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Person" shall mean an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
Tender of Shares.
Each Stockholder hereby agrees to validly tender (and not to withdraw) pursuant
to and in accordance with the terms of the Offer, not later than the fifth
business day after commencement of the Offer pursuant to Section 1.1(a) of the
Merger Agreement, (i) all of the shares of Company Common Stock owned of record
or Beneficially Owned by such Stockholder that such Stockholder has the power to
tender, including, without limitation, the number of shares of Company Common
Stock set forth opposite such Stockholder's name on Schedule I hereto (the
"Existing Shares"), and (ii) any shares of Company Common Stock acquired by such
Stockholder after the date hereof and prior to the termination of this Agreement
whether upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities, or by means of purchase,
dividend, distribution or otherwise (each Stockholder shall promptly provide
written notice to Parent upon consummation of any such acquisition from and
after the date hereof and such Shares shall together with the Existing Shares be
referred to herein as the "Shares"). Each Stockholder hereby acknowledges and
agrees that Parent's obligation to accept for payment and pay for Shares in the
Offer, including the Shares Beneficially Owned by such Stockholder, is subject
to the terms and conditions of the Offer. Anything to the contrary herein
notwithstanding if (x) the Merger Agreement is terminated, (y) the Offer is
terminated without the purchase of Shares thereunder or (z) the Minimum
Condition is not satisfied (other than by waiver) upon termination of the Offer,
the obligations of the Stockholders under this Agreement shall terminate and
within two business days
thereof the Shares tendered under the Offer pursuant to this Agreement by each
Stockholder shall be returned to such Stockholder.
Through the transfer by each Stockholder of his or its Shares to Acquisition Sub
in the Offer, Acquisition Sub shall acquire good, valid and marketable title to
the Shares, free and clear of all claims, liens, charges, encumbrances,
restrictions, security interests, pledges, limitations, conditional sales
agreements, or obligations relative to the sale or transfer thereof, and not
subject to any adverse claim.
Each Stockholder hereby agrees to permit Parent, Acquisition Sub and the Company
to publish and disclose in the documents relating to the Offer and Merger
(including all documents, schedules and proxy statements filed with the
Commission) his or its identity and ownership of Company Common Stock and the
nature of his or its commitments, arrangements and understandings under this
Agreement.
Proxy; Provisions Concerning Company Common Stock. Each Stockholder, by this
Agreement, does hereby constitute and appoint Parent, or any nominee of Parent,
with full power of substitution, as his or its true and lawful attorney and
proxy, for and in his or its name, place and stead, to vote as his or its proxy
at any meeting of the holders of Company Common Stock, however called, and to
sign such Stockholder's name to any written consent of the holders of Company
Common Stock with respect to, the Shares held of record or Beneficially Owned by
such Stockholder that such Stockholder has the power to vote (including at a
minimum the Existing Shares), whether heretofore owned or hereafter acquired,
(i) in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the approval of the terms thereof and each of the other
actions contemplated by the Merger Agreement and this Agreement and any actions
reasonably required in furtherance thereof and hereof; (ii) against any action
or agreement that would reasonably be expected to result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or this Agreement; and (iii) against the
following actions or agreements (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its Subsidiaries; (B) a sale, lease or transfer
of a material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its Subsidiaries; (C) (1) any change in a majority of the persons who constitute
the board of directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or Bylaws; (3) any other material change in the Company's
corporate structure or business; or (4) any other action or agreement which, in
the case of each of the matters referred to in clauses (C)(l), (2) or (3), is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone, discourage, or adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. Each Stockholder
further agrees to cause his or its Shares to be voted in accordance with the
foregoing. Each Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
Other Covenants, Representations and Warranties. Each Stockholder hereby
represents and warrants to Parent as follows:
Ownership of Shares. Such Stockholder is the record owner of the number of
Shares set forth opposite such Stockholder's name on Schedule I hereto. On the
date hereof, the Existing Shares set forth opposite such Stockholder's name on
Schedule I hereto constitute all of the Shares owned of record by such
Stockholder. The Shares are not subject to any voting trust agreement or to
such Stockholder's knowledge other agreement restricting or otherwise relating
to the voting, dividend rights or disposition of the Shares, other than this
Agreement. Such Stockholder has sole power with respect to the matters set
forth in this Agreement with respect to all of the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
Power; Binding Agreement. Such Stockholder has the legal capacity, power and
authority to enter into and perform all of such Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
such Stockholder will not violate any other to which such Stockholder is a party
including, without limitation, any voting agreement, stockholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered
by such Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby.
No Conflicts. (i) No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by such Stockholder and the consummation by such
Stockholder of the transactions contemplated hereby other than filings required
under the Exchange Act and (ii) 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 result in a violation or 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, modification or acceleration)
under any of the terms, conditions or provisions of any agreement to which such
Stockholder is a party or by which such Stockholder may be bound or affected.
No Encumbrances. Except as applicable in connection with the transactions
contemplated by Section 2 hereof, such Stockholder's Shares and the certificates
representing such Shares are, 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, security interests, proxies, voting
trusts or agreements, or to such Stockholder's knowledge any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder.
No Finder's Fees. Except as provided in the Merger Agreement, no broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial adviser'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.
No Solicitation. No Stockholder shall, in his capacity as such, directly or
indirectly, through any agent or representative or otherwise invite, initiate,
solicit or knowingly encourage (including by way of furnishing information), or
respond to, any inquiries or the making of any proposal by any person or entity
(other than Parent or any affiliate of Parent) that constitutes or any
reasonably be expected to lead to, an Acquisition Proposal, or otherwise
cooperate with, or assist or participate in or facilitate or encourage any
effort or attempt by any person to do or seek any of the foregoing. If any
Stockholder receives or becomes aware of any such inquiry or proposal or
Acquisition Proposal, then such Stockholder will promptly inform Parent in
writing of the existence thereof. Each Stockholder will 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. However,
nothing in this Section 4(f) or this Agreement shall restrict, limit or prohibit
such Stockholder from taking any actions necessary in his capacity as a Director
of the Company to satisfy his fiduciary duties as a Director under Delaware law.
Restriction on Transfer, Proxies and Non-Interference. Except as applicable
in connection with the transactions contemplated by Section 2 hereof, no
Stockholder shall, directly or indirectly: (i) except for transfers to such
Stockholder's family or trusts established for the benefit of members of such
Stockholder's family (provided that in the case of this clause (i) the
transferee of such shares agrees in writing to be bound by the terms hereof
in form satisfactory to Parent), 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, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein; (ii) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any
Shares; 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 or disabling such Stockholder from performing such
Stockholder's obligations under this Agreement.
Waiver of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
Reliance by Parent. Each Stockholder understands and acknowledges that Parent
is entering into, and causing Acquisition Sub to enter into, the Merger
Agreement in reliance upon such Stockholder's execution and delivery of this
Agreement.
Further Assurances. From time to time, at the other party's request and without
further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement. Without limiting
the foregoing, each Stockholder agrees, upon the written request of Parent, to
use his or its best efforts to cause all certificates representing such
Stockholder's Shares to bear in a conspicuous place the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS
AGREEMENT DATED AS OF OCTOBER 8, 1996, A COPY OF WHICH IS ON FILE AT THE OFFICES
OF THE CORPORATION AND WILL BE FURNISHED BY THE CORPORATION TO THE HOLDER HEREOF
UPON WRITTEN REQUEST. SUCH STOCKHOLDERS AGREEMENT PROVIDES, AMONG OTHER THINGS,
FOR THE GRANTING OF CERTAIN PROXIES TO VOTE THE SHARES REPRESENTED HEREBY AND
FOR CERTAIN RESTRICTIONS ON THE SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE. BY ACCEPTANCE OF
THIS CERTIFICATE, EACH HOLDER HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF
SUCH STOCKHOLDERS AGREEMENT. THE CORPORATION RESERVES THE RIGHT TO REFUSE TO
TRANSFER THE SHARES REPRESENTED BY THIS CERTIFICATE UNLESS AND UNTIL THE
CONDITIONS TO TRANSFER SET FORTH IN SUCH STOCKHOLDERS AGREEMENT HAVE BEEN
FULFILLED.
Stop Transfer. Each Stockholder agrees with, and covenants to, Parent that such
Stockholder shall not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
such Stockholder's Shares, unless such transfer is made in compliance with this
Agreement (including the provisions of Section 2 hereof). In the event of a
stock dividend or distribution, or any change in the Company Common Stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
Termination. Except as otherwise provided herein, the covenants and agreements
contained herein with respect to the Shares shall terminate upon the earlier of
(i) termination of the Merger Agreement in accordance with its terms, or (ii)
December 31, 1996.
Confidentiality. The Stockholders recognize that successful consummation of the
transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof or of the Merger Agreement, each
Stockholder hereby agrees not to disclose or discuss this Agreement with anyone
not a party to this Agreement (other than such Stockholder's counsel and
advisors, if any) without the prior written consent of Parent, except for
filings required pursuant to the Exchange Act and the rules and regulations
thereunder or as required by law, in which event such Stockholder shall give
notice of such disclosure to Parent as promptly as practicable so as to enable
Parent to seek a protective order
from a court of competent jurisdiction with respect thereto.
Miscellaneous.
Entire Agreement. This Agreement, and the agreements contemplated hereby
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
Certain Events. Each Stockholder agrees that this Agreement and the obligations
hereunder shall attach to such Stockholder's Shares and shall be binding upon
any person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without limitation,
such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
Assignment. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other party, provided that
Parent may assign, in its sole discretion, its rights and obligations hereunder
to any direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder.
Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, with respect to any
one or more Stockholders, except upon the execution and delivery of a written
agreement executed by the relevant parties hereto; provided that Schedule I
hereto may be supplemented by Parent by adding the name and other relevant
information concerning any stockholder of the Company who agrees to be bound by
the terms of this Agreement without the agreement of any other party hereto, and
thereafter such added stockholder shall be treated as a "Stockholder" for all
purposes of this Agreement.
Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly received if so given) by hand delivery, telegram, telex or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) by any courier service, such as Federal Express, providing proof of
delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: At the addresses set forth on Schedule I hereto
If to Parent: ▇▇▇▇-▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
copy to: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Plaza VII, Suite 3400
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
Severability. Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Specific Performance. Each of the parties hereto recognizes and acknowledges
that a breach by it of any covenants or agreements contained in this Agreement
will cause the other party to sustain damages for which it would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
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 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.
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.
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.
Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Delaware, without giving effect to the principles
of conflicts of law thereof.
Jurisdiction. Each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any state or federal court located in the State of
Delaware in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction or venue by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a state or federal court sitting in the State
of Delaware.
In any event any Stockholder is made party to any litigation as a result of such
Stockholders' execution of this Agreement (other than litigation by or in the
right of Parent or Acquisition Sub to enforce this Agreement), and such
Stockholder is not then in breach of, and has not disclosed any intention to
breach or otherwise fail to fulfill, his obligations under this Agreement, then,
upon request by such Stockholder, Parent shall indemnify such Stockholder
against the reasonable costs of defense of such litigation, such obligation to
indemnify to continue so long as such Stockholder is not in breach of, and has
not disclosed any intention to breach or otherwise fail to fulfill, his
obligations under this Agreement, In connection with such indemnification,
Parent may require that all Stockholders requesting indemnification be
represented in such litigation by a single law firm satisfactory to Parent and
such Stockholders.
Descriptive Headings. The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation 9f this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, Parent, Acquisition Sub and each Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
▇▇▇▇-▇▇▇▇▇ COMPANY
By:
Its:
NFC ACQUISITION CORPORATION
By:
Its:
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE I
NAME AND ADDRESS NUMBER OF SHARES
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 156,816
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 75,839
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 6,142
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 200
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 50,635
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 41,972
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 46,713
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 199,174