TENDER AND SUPPORT AGREEMENT
TENDER AND SUPPORT AGREEMENT, dated as of July 1, 2014 (this “
Agreement”), among The Kroger Co., an
Ohio corporation (“
Parent”), Vigor Acquisition Corp., a Delaware corporation (“
Acquisition Sub”), and the Person listed as “
Stockholder” on the signature page hereto (“
Stockholder”).
WHEREAS, as a condition and inducement to
Parent’s and Acquisition Sub’s willingness to enter into an
Agreement and Plan of Merger, dated as of the date
hereof (the “
Merger Agreement”), with Vitacost.com, Inc. a Delaware corporation (the “
Company”),
Parent has requested
Stockholder, and
Stockholder has agreed, to enter into this
Agreement with respect to all shares of common stock, par value $0.00001 per share, of the
Company that Stockholder Beneficially Owns (as defined in Section 6.10 below) at any time during the
Support Period (as defined in Section 6.10 below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Agreement to Tender
Section 1.01 Tender of Shares.
Stockholder agrees:
(i) to promptly (and, in any event, not later than five (5) Business Days after commencement of the Offer) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer and Rule 14d-2 under the
Exchange Act, all of the outstanding Company Shares
Beneficially Owned by
Stockholder (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement); and
(ii) if
Stockholder acquires Beneficial Ownership of any additional outstanding Company Shares
during the Support Period, to promptly (and, in any event, not later than three (3) Business Days after
Stockholder acquires
Beneficial Ownership of such additional outstanding Company Shares) validly tender or cause to be validly tendered into the Offer, pursuant to and in accordance with the terms of the Offer, all of such additional Company Shares (free and clear of any Liens or restrictions, except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement). Notwithstanding anything in this Agreement to the contrary, nothing herein shall require Stockholder to exercise any Company Option or other equity award or require Stockholder to purchase any Company Shares pursuant to any Company Warrant or otherwise, and nothing herein shall prohibit Stockholder from exercising any Company Option or Company Warrants held by such Stockholder as of the date of this Agreement.
Section 1.02 No Withdrawal.
Stockholder agrees not to withdraw, and not to cause or permit to be withdrawn, any Company Shares
from the Offer unless and until (i) the Offer expires without
Acquisition Sub having accepted for payment any Company Shares tendered in the Offer or (ii) termination of this Agreement in accordance with Section 6.03 hereof.
Section 1.03 Conditional Obligation.
Stockholder acknowledges and agrees that Acquisition Sub’s obligation to accept for payment
Company Shares tendered into the Offer,
including any Company Shares tendered by
Stockholder, is subject to the terms and conditions of the
Merger Agreement and the
Offer.
ARTICLE 2
Voting Agreement; Grant of Proxy
Section 2.01. Voting Agreement.
Stockholder hereby agrees that, during the
Support Period,
Stockholder will not vote any outstanding Company Shares
Beneficially Owned by
Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any
(i) Acquisition Proposal,
(ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the
Company or any other extraordinary transaction involving the
Company other than the Merger,
(iii) corporate action the consummation of which would frustrate the purposes, or prevent or materially delay the consummation, of any
of the transactions contemplated by the
Merger Agreement or
(iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall use its commercially reasonable efforts to ensure that, during the Support Period, any other Person having voting power with respect to any outstanding Company Shares Beneficially Owned by Stockholder will not vote any such shares in favor of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iv) of the preceding sentence.
Section 2.02. Irrevocable Proxy.
Stockholder hereby revokes (or agrees to cause to be revoked) any and all previous proxies granted with respect to the outstanding Company Shares Beneficially Owned by
Stockholder. By entering into this
Agreement,
Stockholder hereby grants a proxy appointing
Parent as
Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in
Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by Section 2.01
above as
Parent or its proxy or substitute shall, in
Parent’s sole discretion, deem proper with respect to the outstanding Company Shares Beneficially Owned by
Stockholder. The proxy granted by
Stockholder pursuant to this Article 2 is irrevocable and is granted in consideration of
Parent and Acquisition Sub entering into this
Agreement and the
Merger Agreement and incurring certain related fees and expenses. The proxy granted by
Stockholder shall not be exercised to vote, consent or act on any matter except as contemplated by Section 2.01 above. The proxy granted by
Stockholder shall be revoked, terminated and of no further force or effect, automatically and without further action, upon termination of this
Agreement in accordance with Section 6.03 hereof.
ARTICLE 3
Representations and Warranties of Stockholder
Stockholder represents and warrants to
Parent that:
Section 3.01. Authorization.
The execution, delivery and performance by
Stockholder of this
Agreement and the consummation by
Stockholder
of
the transactions contemplated hereby are within the powers of
Stockholder and, if applicable,
have been duly authorized by all necessary corporate,
company, partnership or other action. This
Agreement constitutes a legal, valid and binding
agreement of
Stockholder, enforceable against
Stockholder
in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally, to rules of law governing specific performance, injunctive relief and other equitable remedies, to approval by the Company Board of this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby for purposes of Section 203 of the DGCL and to the federal securities laws and rules promulgated thereunder, including but not limited to, any withdrawal rights under the tender offer rules. If this
Agreement is being executed in representative or fiduciary capacity, the Person signing this
Agreement has full power and authority to enter into and perform this
Agreement.
Section 3.02. Non-Contravention.
The execution, delivery and performance by
Stockholder of this
Agreement and the consummation
of
the transactions contemplated hereby do not and will not
(i) violate the certificate of incorporation or bylaws, or other comparable charter or organizational documents, of
Stockholder, if any,
(ii) violate any Applicable Law,
(iii) conflict with or violate or require any consent, approval, notice or other action by any Person under, constitute a default (with or without notice or lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which
Stockholder is entitled under any provision of any Contract binding on
Stockholder or any of
Stockholder’s properties or assets,
including the Company Shares Beneficially Owned by
Stockholder or
(iv) result in the imposition of any Lien on any asset of
Stockholder.
Section 3.03. Ownership of Shares.
Stockholder is the
Beneficial Owner of the Company
Shares
set forth on the signature page hereto opposite such
Stockholder’s name, free and clear of any Lien and any other limitation or restriction (
including any restriction on the right to vote or otherwise dispose of the Company Shares Beneficially Owned by
Stockholder), except for any applicable restrictions on transfer under the Securities Act and the rules and regulations promulgated thereunder that would not in any event prevent Stockholder from tendering Stockholder’s Company Shares in accordance with this Agreement or otherwise complying with Stockholder’s obligations under this Agreement.
Section 3.04. Total Shares. Except for the
Company Shares set forth on the signature page hereto,
Stockholder does not Beneficially Own any
(i) shares of capital stock or voting securities of the
Company or
(ii) options, warrants or other rights to acquire, or securities convertible into or exchangeable for (in each case, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the
Company.
Section 3.05. Finder’s Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from
Parent,
Acquisition Sub or the
Company in respect of this
Agreement based upon any Contract made by or on behalf of
Stockholder solely in Stockholder’s capacity as a stockholder of the Company.
Section 3.06. No Litigation. As of the date of this Agreement, there is no suit, claim, action, investigation or other Proceeding pending or, to the knowledge of Stockholder, threatened against Stockholder at law or in equity before or by any Governmental Authority that could reasonably be expected to impair the ability of Stockholder to perform Stockholder’s obligations hereunder or consummate the transactions contemplated hereby.
ARTICLE 4
Representations and Warranties of Parent and Acquisition Sub
Parent and
Acquisition Sub represent and warrant to
Stockholder:
Section 4.01. Corporation Authorization.
The execution, delivery and performance by
Parent and
Acquisition Sub of this
Agreement and the consummation by
Parent and
Acquisition Sub
of
the transactions contemplated hereby are within the
corporate powers of
Parent and the corporate powers of
Acquisition Sub and
have been duly authorized by all necessary corporate action. This
Agreement constitutes a valid and binding
agreement of
Parent and Acquisition Sub, enforceable against
Parent and
Acquisition Sub
in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, moratorium or similar law affecting creditors’ rights generally and to rules of law governing specific performance, injunctive relief and other equitable remedies.
ARTICLE 5
Covenants of Stockholder
Stockholder hereby covenants and agrees that:
Section 5.01. No Proxies for, Encumbrances on or Disposition of Shares. During the
Support Period, except pursuant to the terms of this
Agreement,
Stockholder shall not, without the prior
written consent of
Parent, directly or indirectly, (a) grant any proxies, or enter into any voting trust or other Contract, with respect to the voting of any Company Shares Beneficially Owned by
Stockholder, (b) sell, assign, transfer, tender, encumber or otherwise dispose of, or enter into any Contract with respect to the direct or indirect sale, assignment, transfer, tender, encumbrance or other disposition of, any such Company Shares or (c) take any other action that would make any representation or warranty of
Stockholder contained
herein untrue or incorrect in any material respect or in any way restrict, limit or interfere in any material respect with the performance of
Stockholder’s obligations
hereunder
or
the transactions contemplated hereby or by the
Merger Agreement, or seek to do or solicit any of the foregoing actions, or cause or permit any other Person to take any of the foregoing actions, and agrees to notify
Parent and
Acquisition Sub promptly, and to provide all material details reasonably requested by
Parent or Acquisition Sub, if
Stockholder shall be approached or solicited, directly or indirectly, by any Person with respect to any of the foregoing. Without limiting the generality of the foregoing, during the Support Period, Stockholder shall not tender, agree to tender or cause or permit to be tendered any Company Shares Beneficially Owned by Stockholder into or otherwise in connection with any tender or exchange offer, except pursuant to the Offer. Notwithstanding the foregoing, Stockholder may transfer Company Shares held by Stockholder to a trust for the benefit of Stockholder;
provided that a transfer referred to in this sentence shall be permitted only if, as a precondition to such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.
Section 5.02. Other Offers.
Neither Stockholder (in Stockholder’s capacity as such), nor any of Stockholder’s Subsidiaries, if any, shall, nor shall Stockholder or any of Stockholder’s Subsidiaries, if any, authorize or permit any of its or their respective Representatives to, and Stockholder shall instruct, and cause each applicable Subsidiary of Stockholder to instruct, each such Representative not to, directly or indirectly, take any of the following actions:
(i) solicit, initiate, cause or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal;
(ii) furnish to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal; or (iv) enter into any Contract contemplating or otherwise relating to an Acquisition Transaction.
Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any
Subsidiary of
Stockholder or Representatives of
Stockholder or any of its Subsidiaries shall be deemed to be a breach of this
Section 5.02 by
Stockholder. Stockholder shall, and shall cause its Subsidiaries and its and their respective Representatives to immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, and shall request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by Stockholder, its Subsidiaries or Representatives. Stockholder shall promptly notify Parent if it becomes aware of any receipt by Stockholder, its Subsidiaries or Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group making any such Acquisition Proposal, request or inquiry (and shall include with such notice copies of any written materials received from or on behalf of such Person relating to such Acquisition Proposal). Stockholder shall keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal known to Stockholder, request or inquiry (and Stockholder shall provide Parent with copies of any additional written materials received by it that relate to such Acquisition Proposal, inquiry or request). Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement, including taking any of the foregoing actions that would be permitted to be taken by the Company pursuant to the Merger Agreement.
Section 5.03. Communications.
Stockholder, and each of
Stockholder’s
Subsidiaries, if any, shall not, and shall cause their respective officers, directors, employees or other Representatives, if any, not to, directly or indirectly, make any press release, public announcement or other public communication that criticizes or disparages this
Agreement or the
Merger Agreement or any
of
the transactions contemplated hereby and thereby, without the prior
written consent of
Parent.
Stockholder hereby
(i) consents to and authorizes the publication and disclosure by
Parent,
Acquisition Sub and the
Company (
including in the
Schedule TO, the
Schedule 14D-9 or any other publicly filed documents relating to the
Merger, the Offer or any other transaction contemplated by the
Merger Agreement) of: (a)
Stockholder’s identity; (b)
Stockholder’s
Beneficial Ownership
of
Company Shares; and (c) the nature of
Stockholder’s commitments, arrangements and understandings under this
Agreement, and any other information that
Parent,
Acquisition Sub or the
Company determines to be necessary in any SEC disclosure document in connection with the Offer, the
Merger or any of the other transactions contemplated by the
Merger Agreement and
(ii) agrees as promptly as practicable to notify
Parent,
Acquisition Sub and the
Company of any required corrections with respect to any
written information supplied by
Stockholder specifically for use in any such disclosure document. Notwithstanding the foregoing, nothing herein shall limit or affect any actions taken by Stockholder (or any affiliated officer or director of the Company) in compliance with the Merger Agreement.
Section 5.04. Additional Shares. In the event that
Stockholder acquires
Beneficial Ownership of, or the power to dispose of or vote or direct the disposition or voting of, any additional Company Shares or other interests in or with respect to the
Company, such Company Shares or other interests shall, without further action of the parties, be subject to the provisions of this
Agreement, and the number of Company Shares Beneficially Owned by
Stockholder set forth on the signature page hereto will be deemed amended accordingly.
Stockholder shall promptly notify
Parent and Acquisition Sub of any such event.
Section 5.05.
Waiver of Appraisal and Dissenters’ Rights and Actions.
Stockholder hereby
(i) waives and agrees not to exercise any rights (
including under Section 262 of the
General Corporation Law of the State of Delaware) to demand appraisal of any
Company Shares
Beneficially Owned by
Stockholder or rights to dissent from the
Merger which may arise with respect to the
Merger and
(ii) agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or other Proceeding, against
Parent, Acquisition Sub, the
Company or any of their respective successors relating to the negotiation, execution or delivery of this
Agreement or the
Merger Agreement or the making or consummation of the Offer or consummation of the Merger,
including any
Proceeding (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this
Agreement or (y) alleging a breach of any fiduciary duty of the
Board of Directors of the
Company in connection with the
Merger Agreement or the transactions contemplated thereby.
Section 6.01. Other Definitional and Interpretative Provisions. Unless specified otherwise, in this
Agreement the obligations of any party hereto consisting of more than one
Person are joint and several. The words “
hereof,” “
herein” and “
hereunder” and words of like import used in this
Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. The captions
herein are included for convenience of reference only and shall be ignored in the construction or interpretation
hereof.
References to Articles and Sections are to Articles and Sections of this
Agreement unless otherwise specified. Any singular term in this
Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the words “
include,” “
includes” or “
including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. The word “or” has the inclusive meaning represented by the phrase “and/or.” “
Writing,” “
written” and comparable terms refer to printing, typing and other means of reproducing words (
including electronic media) in a visible form.
References to any Contract (including the Merger Agreement) are to that
Contract as amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
References to any Person
include the successors and permitted assigns of that Person.
References from or through any date mean, unless otherwise specified, from and
including or through and
including, respectively.
Section 6.02. Further Assurances. Stockholder shall, to the extent requested by Parent, promptly: (i) use commercially reasonable efforts to cause each other Person having voting power with respect to any Company Shares Beneficially Owned by Stockholder to execute and deliver to Parent a proxy with respect to such shares, which shall be identical to the proxy in Section 2.02 above; and (ii) upon request, surrender the certificates representing the Company Shares owned of record by Stockholder, and use commercially reasonable efforts to request the certificates representing any other outstanding Company Shares Beneficially Owned by Stockholder, to be surrendered so that the transfer agent for such shares may affix thereto an appropriate legend referring to this Agreement.
Section 6.03. Amendments; Termination. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party to this
Agreement or in the case of a waiver, by the party against whom the waiver is to be effective. This
Agreement shall terminate upon the earlier of the
Effective Time or the termination or expiration of the Support Period;
provided,
however, that no termination of this
Agreement shall relieve any party hereto from any liability for any breach of any provision of this
Agreement prior to such termination.
Section 6.04. Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 6.05. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns;
provided that
Stockholder may not assign, delegate or otherwise transfer any of
Stockholder’s rights or obligations under this
Agreement without the prior
written consent of
Parent. Any assignment, delegation or transfer in violation of the foregoing shall be null and void.
Section 6.06. Governing Law. This
Agreement shall be governed by and construed in accordance with and governed by the laws of the
State of
Delaware, without regard to the conflicts of law rules of such State that would result in the application of any law other than the law of the State of
Delaware.
Section 6.07. Counterparts; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in PDF form or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures. This
Agreement shall become effective when each party hereto shall have received counterparts
hereof signed by all of the other parties hereto and the
Merger Agreement has become effective. Until and unless each party has received a counterpart
hereof signed by the other party hereto and the
Merger Agreement has become effective, this
Agreement shall have no effect and no party shall have any right or obligation
hereunder (whether by virtue of any other oral or
written
agreement or other communication).
Section 6.08. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance
of
the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order
that
the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 6.09. Specific Performance. The parties hereto agree that irreparable damage to
Parent or Acquisition Sub would occur, damages would be incalculable and would be an insufficient remedy and no other adequate remedy would exist at law or in equity, in each case in the event that any provision of this
Agreement were not performed by
Stockholder in accordance with the terms
hereof, and that
each of Parent and Acquisition Sub shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement or to enforce specifically
Stockholder’s performance of the terms and provisions
hereof, in addition to any other remedy to which
Parent or Acquisition Sub may be entitled at law or in equity.
Stockholder hereby waives any defenses based on the adequacy of any other remedy, whether at law or in equity, that might be asserted as a bar to the remedy of specific performance of any of the terms or provisions
hereof or injunctive relief in any action brought therefor by
Parent or Acquisition Sub.
Section 6.10. Defined Terms. For the purposes of this Agreement:
(i) Capitalized terms used but not defined herein shall have the respective meanings set forth in the Merger Agreement.
(ii) Stockholder shall be deemed to “Beneficially Own” or to have acquired “Beneficial Ownership” of a security if Stockholder (a) is the record owner of such security; or (b) is the “beneficial owner” with respect to the investment authority of such security (within the meaning of Rule 13d-3 under the Exchange Act) of such security.
(iii) “Support Period” shall mean the period from the date of this Agreement through the earlier of (a) the date upon which the Merger Agreement is terminated, or (b) the Effective Time. Section 6.11.
Action in Stockholder’s Capacity Only.
Stockholder, if a director or officer of the
Company, does not make any
agreement or understanding
herein as a director or officer of the
Company.
Stockholder signs this
Agreement solely in
Stockholder’s capacity as a Beneficial Owner of
the
Company Shares
Beneficially Owned by
Stockholder, and nothing
herein shall limit or affect any actions taken in
Stockholder’s capacity as an officer or director of the
Company,
including complying with or exercising such
Stockholder’s fiduciary duties as a member of the Board of Directors of the
Company.
Section 6.12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) immediately upon delivery by hand or by facsimile (with a written or electronic confirmation of delivery), in each case to the intended recipient as set forth below:
| if to Parent or Acquisition Sub, to: |
| | |
| | The Kroger Co. |
| | 1014 Vine Street |
| | Cincinnati, Ohio 45201 |
| | Attention: General Counsel |
| | Facsimile No.: (513) 762-4935 |
| | |
| with a copy to: |
| | |
| | Weil, Gotshal & Manges LLP |
| | 767 Fifth Avenue |
| | New York, NY 10153 |
| | Attention: Michael J. Aiello and Matthew J. Gilroy |
| | Facsimile No.: (212) 310-8007 |
| | |
| if to Stockholder, to: the address for notice set forth on the signature page hereto |
| | |
| with a copy to: |
| | |
| | Vitacost.com, Inc. |
| | 5400 Broken Sound Blvd. NW, Suite 500 |
| | Boca Raton, FL 33487 |
| | Attention: Chief Legal Officer |
| | Facsimile No.: (516) 443-2627 |
| | |
| and: |
| | |
| | Skadden, Arps, Slate, Meagher & Flom LLP |
| | Four Times Square |
| | New York, NY 10036 |
| | Attention: Howard L. Ellin and Richard J. Grossman |
| | Facsimile No.: (212) 735-2000 |
Section 6.13.
Submission to Jurisdiction. Each party to this
Agreement hereby irrevocably and unconditionally
(i) consents to the submission to the exclusive jurisdiction of the
Court of Chancery of the State of
Delaware sitting in
Wilmington,
Delaware for any
Legal Proceedings arising out of or relating to this
Agreement
or
the transactions contemplated hereby,
(ii) agrees not to commence any Legal Proceeding relating thereto except in such court and in accordance with the provisions of this
Agreement,
(iii) agrees that service of any process, summons, notice or document by
U.S. registered mail, or otherwise in the manner provided for notices in Section 6.12
hereof, shall be effective service of process for any such Legal Proceeding brought against it in any such court,
(iv) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Legal Proceeding in such courts and
(v) agrees not to plead or claim in any court that any such Legal Proceeding brought in any such court has been brought in an inconvenient forum. Each of the parties hereto agrees that a final judgment in any such Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law. Nothing in this
Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by Applicable Law.
Section 6.14 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.15.
Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
Section 6.16.
Waiver. No failure on the part of any party to exercise
any
power, right, privilege or remedy under this
Agreement, and no delay on the part of any party in exercising
any
power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. A party hereto shall not be deemed to have waived any claim arising out of this
Agreement, or
any
power, right, privilege or remedy under this
Agreement, unless the waiver of such claim,
power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
Section 6.17.
No Ownership Interest. All rights, ownership and economic benefits of and relating to
the
Company Shares
Beneficially Owned by
Stockholder at a given time shall remain vested in and belong to
Stockholder as of such time, and
Parent shall have no authority to exercise any power or authority to direct
Stockholder in the voting of any of the Company Shares Beneficially Owned by
Stockholder, except as otherwise specifically provided
herein, or in the performance of
Stockholder’s duties or responsibilities as a
stockholder of the
Company.
Section 6.18 Entire Agreement. This
Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties hereto with respect to the subject matter
hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
| THE KROGER CO., | |
| an Ohio corporation | |
| | |
| By: | /s/ Christine S. Wheatley | |
| | Name: | Christine S. Wheatley | |
| | Title: | Group Vice President, Secretary and General Counsel | |
| VIGOR ACQUISITION CORP., | |
| a Delaware corporation | |
| | |
| By: | /s/ Christine S. Wheatley | |
| | Name: | Christine S. Wheatley | |
| | Title: | President | |
| GREAT HILL EQUITY PARTNERS IV, L.P.: | |
| | |
| By: GREAT HILL PARTNERS GP IV, L.P., its General Partner | |
| | |
| By: GHP IV, LLC, its General Partner | |
| | |
| By: | /s/ Michael Kumin | |
| | Name: | Michael Kumin | |
| | Title: | Authorized Signatory | |
Shares Beneficially Owned | | Shares Owned of Record | | Shares subject to Company Options | | Shares subject to Company Warrants |
| 2,306,497 | | 2,182,265 | | 13,759 | | 110,473 |
Signature Page to Tender and Support Agreement
