VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of January 29, 1998, by
and among AmeriServe Food Distribution, Inc., a Delaware corporation ("Parent"),
Steamboat Acquisition Corp., a Delaware corporation ("Merger Sub") and Onex DHC
LLC, a Wyoming limited liability company, and certain of its affiliates the
names of which appear on the signature pages hereto (together, the
"Stockholders").
WHEREAS, Parent, Merger Sub and ProSource, Inc. , a Delaware
corporation (the "Company"), have entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"; capitalized terms used but
not defined herein shall have the meanings set forth in the Merger Agreement;
provided that the terms "Merger" and "Merger Agreement" shall not include any
amendments or modifications thereto unless such amendments and modifications
have been approved in writing by the Stockholders), providing for the merger
(the "Merger") of Merger Sub with and into the Company, upon the terms and
subject to the conditions set forth in the Merger Agreement; and
WHEREAS, the Stockholders beneficially own 496,583 Class A Shares and
5,218,072 Class B Shares (such Class A Shares and Class B Shares, together with
any other Class A Shares and Class B Shares that the Stockholders acquire
beneficial ownership of after the date hereof and during the term 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, being collectively referred to
herein as the "Subject Shares"), owned by each of the Stockholders in the
amounts indicated beneath their respective names on the signature pages hereto;
and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent and Merger Sub have requested and required that the
Stockholders enter into this Agreement.
NOW, THEREFORE, to induce Parent and Merger Sub to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties hereto agree as follows:
1. Representations and Warranties of the Stockholders. Each of the
Stockholders hereby represents and warrants to Parent and Merger Sub as of the
date hereof as follows:
(a) Authority; No Conflicts. Each Stockholder has the necessary legal
capacity, power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by and
on behalf of each Stockholder, and, assuming due authorization, execution and
delivery by Parent and Merger Sub, constitutes a legal, valid and binding
obligation of the Stockholders, enforceable in accordance with its terms. Except
for the filings required under the HSR Act or the Exchange Act, (i) no filing
with, and no permit, authorization,
consent or approval of, any Governmental Entity or any other person is necessary
for the execution and delivery of this Agreement by and on behalf of any
Stockholder and the consummation by any Stockholder of the transactions
contemplated hereby, and (ii) none of the execution and delivery of this
Agreement by and on behalf of any Stockholder, the consummation of the
transactions contemplated hereby and compliance with the terms hereof by any
Stockholder will conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
any Stockholder or to any Stockholder's property or assets.
(b) The Subject Shares. Each Stockholder is the beneficial owner of
the Subject Shares indicated beneath its respective name on the signature pages
hereto and has, and throughout the term of this Agreement and at the Option
Closing Date will have, and will have the power and authority to convey to, and
will at the Option Closing convey to, Merger Sub, good and marketable title to
such Subject Shares free and clear of all encumbrances and liens (other than any
arising as a result of actions taken or omitted by Parent or Merger Sub). The
Stockholders do not beneficially own any shares of capital stock of the Company
or securities convertible into or exchangeable for shares of capital stock of
the Company, other than the Subject Shares. The Stockholders have the sole right
and power to vote and dispose of the Subject Shares, and none of the Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or transfer (other than the provisions of
the Securities Act) of any of the Subject Shares, except as contemplated by this
Agreement.
2. Representations and Warranties of Parent and Merger Sub. Each of
Parent and Merger Sub hereby represents and warrants to the Stockholders that it
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by and on behalf of each of
Parent and Merger Sub and, assuming due authorization, execution and delivery by
the Stockholders, constitutes a legal, valid and binding obligation of Parent
and Merger Sub enforceable in accordance with its terms. Except for the filings
required under the HSR Act and the Exchange Act, (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity or any
other person is necessary for the execution of this Agreement by and on behalf
of Parent or Merger Sub and the consummation by Parent and Merger Sub of the
transactions contemplated hereby, and (ii) none of the execution and delivery of
this Agreement by Parent and Merger Sub, the consummation of the transactions
contemplated hereby nor the compliance with the terms hereof by Parent and
Merger Sub will conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any provision of, the
certificate of incorporation or by-laws of Parent or Merger Sub, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable to
Parent or Merger Sub or to Parent's or Merger Sub's property or assets. If the
Option (as defined herein) is exercised, the Subject Shares will be acquired for
investment for Parent's and Merger Sub's own ac-
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count, not as a nominee or agent and not with a view to the distribution of any
part thereof. Neither Parent nor Merger Sub has any present intention of
selling, granting any participation in or otherwise distributing the same nor
does Parent or Merger Sub have any contract, undertaking, agreement or
arrangement with any person with respect to any of the Subject Shares. Each of
Parent and Merger Sub further understands that the Subject Shares may not be
sold, transferred or otherwise disposed of without registration under the
Securities Act or pursuant to an exemption therefrom.
3. Covenants of the Stockholders. Until the termination of this
Agreement in accordance with Section 8 hereof, the Stockholders agree as
follows:
(a) Voting of Subject Shares. At any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote or other
approval with respect to the Merger and the Merger Agreement is sought, each
Stockholder shall vote its Subject Shares in favor of the Merger, the adoption
by the Company of the Merger Agreement and the approval of the terms thereof and
each of the other transactions contemplated by the Merger Agreement.
At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Stockholders' vote, consent
or other approval as stockholders are sought, the Stockholders shall vote the
Subject Shares against (i) any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or of the
Stockholders hereunder, and (ii) any action or agreement that would reasonably
be expected to impede, interfere with, delay, postpone or attempt to discourage
the Merger, including, but not limited to: (A) the adoption by the Company of a
proposal regarding (1) the acquisition of the Company by merger, tender offer or
otherwise by any person or group, other than Parent or Merger Sub or any
designee thereof (a "Third Party"), or any other merger, combination or similar
transaction with any Third Party; (2) the acquisition by a Third Party of 10% or
more of the assets of the Company and its subsidiaries, taken as a whole; (3)
the acquisition by a Third Party of 10% or more of the outstanding Shares; or
(4) the repurchase by the Company or any of its subsidiaries of 10% or more of
the outstanding Shares; (B) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or change in any manner the voting rights of any class of the Company's capital
stock; (C) any change in the control of the board of directors of the Company;
(D) any material change in the present capitalization or dividend policy of the
Company; or (E) any other material change in the Company's corporate structure
or business. The Stockholders further agree not to commit or agree to take any
action inconsistent with the foregoing.
(b) Proxies. As security for the agreements of the Stockholders
provided for herein, each Stockholder hereby grants to Parent and Merger Sub a
proxy to vote the Subject Shares as indicated in Section 3(a) above. Each
Stockholder agrees that this proxy shall be ir-
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revocable during the term of this Agreement and coupled with an interest and
each of the Stockholders, Parent and Merger Sub will take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy and hereby revokes any proxy previously granted by any Stockholder
with respect to any of the Subject Shares.
(c) Transfer Restrictions. Each Stockholder agrees not to (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of or hypothecate
(including by gift or by contribution or distribution to any trust or similar
instrument or to any beneficiaries of such Stockholder (collectively,
"Transfer")), or enter into any contract, option or other arrangement or
understanding (including any profit sharing arrangement) with respect to the
Transfer of, any of the Subject Shares other than pursuant to the terms hereof
and the Merger Agreement, (ii) enter into any voting arrangement or
understanding with respect to the Subject Shares, whether by proxy, voting
agreement or otherwise, or (iii) take any action that would reasonably be
expected to make any of its representations or warranties contained herein
untrue or incorrect or could have the effect of preventing or disabling such
Stockholder from performing any of its obligations hereunder. Notwithstanding
the foregoing, each Stockholder may transfer its Subject Shares to another
direct or indirect wholly owned subsidiary of Onex Corporation on condition that
the transferee executes and delivers to Parent and Merger Sub an instrument in
writing, in form and substance reasonably satisfactory to Parent and Merger Sub,
assuming all of such Stockholder's obligations under this Agreement.
(d) Appraisal Rights. Each Stockholder hereby irrevocably waives any
and all rights which it may have as to appraisal, dissent or any similar or
related matter with respect to the Merger.
(e) No Solicitation. None of the Stockholders nor any of their
affiliates shall (whether directly or indirectly through any officer, director,
member, advisor, agent, representatives or other intermediary), nor shall the
Stockholders or any of their affiliates authorize or permit any of their
officers, directors, members, advisors, agents, representatives or other
intermediaries to, (i) solicit, initiate, encourage or take any action intended
to or reasonably likely to facilitate any submission of inquiries, proposals or
offers from any person relating to any acquisition or purchase of all or a
material amount of assets of, or any equity interest in, the Company (or any
subsidiary or division thereof) or any merger, consolidation, tender offer
(including a self tender offer), exchange offer, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company (or any subsidiary or division thereof), other than the transactions
contemplated by this Agreement or the Merger Agreement, or any other transaction
the consummation of which would reasonably be expected to impede, interfere
with, prevent or materially delay the Merger or which would reasonably be
expected to materially dilute the benefits to Parent or Merger Sub of the
transactions contemplated by the Merger Agreement (collectively, "Transaction
Proposals") or agree to or endorse any Transaction Proposal, other than the
transactions contemplated by the Merger Agreement, or (ii) enter into or
participate in any discussions or negotiations regarding any of the foregoing,
or furnish to any other person any information with respect to the Company's
business, properties or assets or any of the foregoing, or otherwise cooperate
in any way with, or assist or participate in, facilitate or encourage, any
effort to attempt by any other person to do or seek any of the foregoing.
Notwithstanding any-
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thing in this Agreement to the contrary, from and after the date hereof, the
Stockholders shall promptly advise Parent and Merger Sub orally and in writing
of the receipt by any of them (or any of the other entities or persons referred
to above) of any Transaction Proposal or any inquiry which is likely to lead to
any Transaction Proposal, the material terms and conditions of such Transaction
Proposal or inquiry, and the identity of the person making any such Transaction
Proposal or inquiry. The Stockholders will keep Parent and Merger Sub fully
informed of the status and details of any such Transaction Proposal or inquiry.
Nothing in this Section shall restrict the activities of any individual (whether
or not an affiliate of any Stockholder) in his or her capacity as a director,
officer, employee or agent of the Company or any of its subsidiaries.
(f) Merger Agreement. Each Stockholder accepts the terms and
conditions of the Merger Agreement as they apply to the holders of Shares.
4. Option.
(a) The Stockholders hereby grant to Merger Sub (or its designee), an
irrevocable option to purchase the Subject Shares, on the terms and subject to
the conditions set forth herein (the "Option").
(b) The Option may be exercised by Merger Sub, as a whole and not in
part, at any time during the period commencing upon the occurrence of any of the
following events and ending on the date which is the 30th calendar day following
the first to occur of such events:
(i) the Merger Agreement shall have been terminated pursuant to
Section 10.1(b) thereof;
(ii) the Merger Agreement shall have been terminated pursuant to
Section 10.1(c) thereof (other than a termination by the Company following
a failure to consummate the Merger as a result of an actual material breach
by Parent or Merger Sub of their respective obligations under the Merger
Agreement);
(iii) the Merger Agreement shall have been terminated pursuant to
Section 10.1(d) thereof;
(iv) the Merger Agreement shall have been terminated pursuant to
Section 10.1(e) thereof; or
(v) the Merger Agreement shall have been terminated for any other
reason (other than a termination as a result of an actual material breach
by Parent or Merger Sub of their respective obligations under the Merger
Agreement).
(c) If Merger Sub wishes to exercise the Option, Merger Sub shall send
a written notice to the Stockholders of its intention to exercise the Option,
specifying the place, and, if then known, the time and the date (the "Option
Closing Date") of the closing (the "Option Closing") of the purchase. The Option
Closing Date shall occur on the fifth business day (or such later date as shall
be no later than five business days following the first time that the Option
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Closing shall be permitted by applicable law or regulation) after the later of
(i) the date on which such notice is delivered, and (ii) the satisfaction of the
conditions set forth in Section 4(f).
(d) At the Option Closing, the Stockholders shall deliver to Merger
Sub (or its designee) all of the Subject Shares by delivery of a certificate or
certificates evidencing the Subject Shares duly endorsed to Merger Sub or
accompanied by powers duly executed in favor of Merger Sub, with all necessary
stock transfer stamps affixed.
(e) At the Option Closing, Merger Sub shall, and Parent shall cause
Merger Sub to, pay to the Stockholders pursuant to the exercise of the Option,
by wire transfer, cash in immediately available funds to the accounts of the
Stockholders (such accounts to be specified in writing at least two days prior
to the Option Closing), an amount equal to the product of $15.00 and the number
of Subject Shares (the "Subject Shares Purchase Price").
(f) The Option Closing shall be subject to the satisfaction of each of
the following conditions:
(i) no court, arbitrator or governmental body, agency or official
shall have issued any order, decree or ruling and there shall not be any
statute, rule or regulation, restraining, enjoining or prohibiting the
consummation of the purchase and sale of the Subject Shares pursuant to the
exercise of the Option;
(ii) any waiting period applicable to the consummation of the purchase
and sale of the Subject Shares pursuant to the exercise of the Option under
the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, and any filing with, any
governmental body, agency, official, or authority required to permit the
consummation of the purchase and sale of the Subject Shares pursuant to the
exercise of the Option shall have been obtained or made and shall be in
full force and effect, except such actions and filings which, if not made
or obtained, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5. Further Agreements of Parent and Merger Sub.
(a) Parent and Merger Sub hereby agree that, in the event that Merger
Sub purchases the Subject Shares pursuant to the Option, as promptly as
practicable thereafter, Merger Sub will, and Parent will cause Merger Sub to,
make a tender offer for the remaining Shares to the stockholders of the Company
(the consummation of which shall be subject only to the condition that no court,
arbitrator or governmental body, agency or official shall have issued any order,
decree or ruling and there shall not be any statute, rule or regulation,
restraining, enjoining or prohibiting the consummation of such tender offer)
pursuant to which the stockholders of the Company (other than the Company, any
direct or indirect subsidiary of the Company or Parent or Merger Sub) will
receive an amount of cash consideration per Share equal to $15.00, and will take
such actions as may be necessary or appropriate in order to effectuate such
tender offer at the earliest practicable time.
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(b) Subject to the last sentence of this Section 5(b), if, after
purchasing the Subject Shares pursuant to the Option, Merger Sub or any of its
affiliates has not acquired the remaining Shares, Merger Sub or any of its
affiliates receives any cash or non-cash consideration in respect of the Subject
Shares in connection with a Third Party Business Combination (as defined below)
during the period commencing on the date of the Option Closing and ending on the
first anniversary thereof, Merger Sub shall promptly pay over to the
Stockholders, as an addition to the Subject Shares Purchase Price, (x) one-half
of the excess, if any, of such consideration over the aggregate Subject Shares
Purchase Price paid for the Subject Shares which are sold by Merger Sub
hereunder less (y) the sum of (I) the amount of taxes payable or to be payable
by Merger Sub (as estimated by Merger Sub in good faith) in connection with such
Third Party Business Combination (it being intended and understood that Merger
Sub retain one-half of the after-tax profit from such sale taking into account
any adjustment to basis resulting from the payment required by this section),
and (II) the amount of expenses of Merger Sub in connection herewith and the
Merger Agreement and in connection with such Third Party Business Combination,
and (II) the pro rata portion (based on share holdings) of all capital
contributions to and retained earnings of the Company from the date of date of
the Option Closing through the date of the Third Party Business Combination;
provided that, (i) if the consideration received by Merger Sub or such
affiliates shall be securities listed on a national securities exchange or
traded on the Nasdaq National Market, the per share value of such consideration
shall be equal to the closing price per share of such securities listed on such
national securities exchange or the Nasdaq National Market on the date such
transaction is consummated, and (ii) if the consideration received by Merger Sub
or such affiliates shall be in a form other than securities, the per share value
shall be determined in good faith as of the date such transaction is consummated
by Merger Sub and the Stockholders, or, if Merger Sub and the Stockholders
cannot reach agreement, by a nationally recognized investment banking firm
reasonably acceptable to the parties. The term "Third Party Business
Combination" means the occurrence of any of the following events: (A) the
Company, or more than 50% of the outstanding shares of the Company's capital
stock, is acquired by merger or otherwise by any Third Party; or (B) a Third
Party acquires all or substantially all of the total assets of the Company and
its subsidiaries, taken as a whole; provided, however, that in no event will any
transaction in which shares of the Company's capital stock or any of its assets
are sold or transferred directly or indirectly in connection with or as a part
of a sale or other transaction involving sale, merger or other similar
transaction of Parent or any of its material assets or business constitute a
Third Party Business Combination, and in no event will a sale of any division,
line of business or similar unit of the Company and its subsidiaries constitute
a Third Party Business Combination.
6. Stop Transfer Order. The Stockholders hereby authorize and request
the Company's counsel to notify the Company's transfer agent that there is a
stop transfer order with respect to all of the Subject Shares (and that this
Agreement places limits on the voting of the Subject Shares).
7. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder, except as expressly provided herein with respect to
Parent's and Merger Sub's rights under the Option, shall be assigned by any of
the parties without the prior written consent of the other parties, except that
each of Parent or Merger Sub may assign, in its sole discretion,
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any or all of its rights, interests and obligations hereunder to any direct or
indirect wholly owned subsidiary of Parent. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their permitted assigns and their respective successors
(including the Company as successor to Merger Sub pursuant to the Merger),
heirs, agents, representatives, trust beneficiaries, attorneys, affiliates and
associates and all of their respective predecessors, successors, permitted
assigns, heirs, executors and administrators.
8. Termination. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become null
and void and have no further effect immediately following the earliest to occur
of (x) the Effective Time, (y) the 30th day following the termination of the
Merger Agreement pursuant to Section 10.1(b), 10.1(c), 10.1(d) or 10.1(e)
thereof, or (z) the termination of the Merger Agreement pursuant to Section
10.1(a) thereof. Notwithstanding the foregoing, in the event the Option shall
have been exercised in accordance with Section 4, but the Option Closing shall
not have occurred, this Agreement shall not terminate, except that this
Agreement may be terminated by the Stockholders if Merger Sub defaults on its
obligation to purchase the Subject Shares at the Option Closing. Nothing in this
Section shall relieve any party of liability for breach of this Agreement.
9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged therewith.
(b) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or sent by overnight
courier (providing proof of delivery) to Parent and Merger Sub in accordance
with Section 11.1 of the Merger Agreement and to the Stockholders c/o Kaye,
Scholer, Fierman, Hays & Handler, LLP, 425 Park Avenue New York, New York 10022,
Telecopy: (212) 836-8689, Attention: Joel I. Greenberg, Esq. (or at such other
address for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
each party need not sign the same counterpart.
(e) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
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10. Enforcement. The parties agree that irreparable damage would occur
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 the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court of the United
States located in the Southern District of the State of New York or in a New
York state court located in Manhattan, 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) consents to submit such party to the personal jurisdiction of
any Federal court located in the Southern District of the State of New York or
any New York state court located in Manhattan in the event 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 personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such party will not bring any action relating to this Agreement or
the transactions contemplated hereby in any court other than a Federal court
sitting in the Southern District of the State of New York or a New York state
court located in Manhattan, and (iv) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this Agreement
or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholders have each
caused this Agreement to be signed by its signatory thereunto duly authorized,
each as of the date first written above.
AMERISERVE FOOD DISTRIBUTION, INC.
By:/s/ John V. Holten
Name: John V. Holten
Title: Chairman and Chief Executive
Officer
STEAMBOAT ACQUISITION CORP.
By:/s/ John V. Holten
Name: John V. Holten
Title: Chairman of the Board and
President
ONEX DHC LLC
(479,498 Class A Shares and
4,458,696 Class B Shares)
By:/s/ Anthony R. Melman
Name: Anthony R. Melman
Title: Attorney-in-fact
ONEX OMI LLC
(285,714 Class B Shares)
By:/s/ Anthony R. Melman
Name: Anthony R. Melman
Title: Attorney-in-fact
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PROSOURCE EXECUTIVE INVESTCO LLC
(17,085 Class A Shares and
94,420 Class B Shares)
By:/s/ Anthony R. Melman
Name: Anthony R. Melman
Title: Attorney-in-fact
ONEX OHIO LLC
(379,242 Class B Shares)
By:/s/ Anthony R. Melman
Name: Anthony R. Melman
Title: Attorney-in-fact
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