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EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 22, 1999, by and
among Onstead Interests, Ltd., a Texas limited partnership ("Shareholder"),
Safeway Inc., a Delaware corporation ("Parent"), and SI Merger Sub, Inc., a
Texas corporation and a wholly owned subsidiary of Parent ("Merger Sub").
WHEREAS, Shareholder has beneficial ownership of the number of shares of
common stock, par value $0.25 per share, of Randall's Food Markets, Inc., a
Texas corporation (the "Company"), set forth opposite the name of Shareholder on
the signature page hereof (such class of stock sometimes referred to herein as
the "Company Common Stock," and the shares of Company Common Stock, including
such shares that are acquired after the date hereof, including without
limitation, as a result of a stock dividend, stock split, recapitalization,
combination, reclassification, exchange, or change of such shares, or upon
exercise or conversion of any securities, that are, from time to time,
beneficially owned by Shareholder sometimes referred to herein as the "Shares");
WHEREAS, simultaneously with the execution and delivery hereof, Parent,
Merger Sub and the Company have entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated as of the date hereof, which Merger Agreement
has been approved by the Board of Directors of the Company, and has been
approved by the Board of Directors of Parent and Merger Sub. The directors of
the Company unanimously voted in favor of the adoption of the Merger Agreement
and the recommendation that shareholders of the Company approve the merger of
the Company with and into Merger Sub (the "Merger") as contemplated by the
Merger Agreement; and
WHEREAS, as a condition to entering into the Merger Agreement, Parent
and Merger Sub have required that Shareholder agree, and in order to induce
Parent and Merger Sub to enter into the Merger Agreement, Shareholder has agreed
to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereby agree as follows:
Section 1. Capitalized Terms. For purposes of this Agreement:
"Acquisition Proposal" shall have the meaning set forth in the Merger
Agreement.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"Governmental Entity" shall mean any governmental or regulatory
authority, agency, court, commission, body or other governmental entity.
"Lien" shall mean any security interest, claim, pledge, charge,
restriction on transfer, option, proxy, consent, voting trust, voting agreement
or other encumbrance of any nature whatsoever.
Section 2. Representations and Warranties of Shareholder. Shareholder
represents and warrants to Parent and Merger Sub as follows:
(a) Shareholder is a limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction under which it
is organized.
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(b) Shareholder has all necessary power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by Shareholder, and no other proceedings on the part of
Shareholder are necessary to authorize this Agreement or to consummate the
transactions so contemplated.
(d) This Agreement has been duly and validly executed and delivered
by Shareholder and, assuming this Agreement constitutes a valid and binding
obligation of each of Parent and Merger Sub, constitutes a legal, valid and
binding agreement of Shareholder enforceable against Shareholder in accordance
with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(e) The execution, delivery and performance by Shareholder of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) contravene or conflict with its organizational documents, (ii)
assuming that all consents, authorizations and approvals contemplated by
subsection (f) below have been obtained and all filings described therein have
been made, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Shareholder or any of its properties; or (iii) conflict
with, or result in the breach or termination of or constitute a default (with or
without the giving of notice or the lapse of time or both) under, or give rise
to any right of termination, cancellation, or loss of any benefit to which
Shareholder is entitled under any provision of any agreement, contract, license
or other instrument binding upon Shareholder or any of its properties, or allow
the acceleration of the performance of any obligation of Shareholder under any
indenture, mortgage, deed of trust, lease, license, contract, instrument or
other agreement to which Shareholder is a party or by which Shareholder, its
assets or properties is subject or bound, other than such contraventions,
conflicts, violations, breaches, defaults or other occurrences that would not
reasonably be expected to prevent, delay or impair Shareholder's ability to
consummate the transactions contemplated by this Agreement.
(f) The execution, delivery and performance by Shareholder of this
Agreement and the consummation of the transactions contemplated hereby by
Shareholder require no filings, notices, declarations, consents or other actions
to be made by Shareholder with, nor are any approvals or other confirmations or
consents required to be obtained by Shareholder from any Governmental Entity
(except those the failure of which to make, give or obtain, individually or in
the aggregate, would not reasonably be expected to prevent, delay or impair,
Shareholder's ability to consummate the transactions contemplated by this
Agreement), other than filings, notices, approvals, confirmations, consents,
declarations or decisions required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
(g) As of the date hereof, there is no action, suit, claim,
investigation or proceeding pending, or to the knowledge of Shareholder,
threatened against Shareholder or its properties before any court or arbitrator
or any Governmental Entity which challenges or seeks to prevent, enjoin, alter
or delay the Merger or any of the other transactions contemplated hereby or by
the Merger Agreement. As of the date hereof, Shareholder is not, and none of its
properties is, subject to any order, writ, judgment,
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injunction, decree, determination or award which would prevent, delay or impair
the consummation of the transactions contemplated hereby.
(h) Shareholder is, and at the Effective Time will be, the sole
record and beneficial owner of and has, and at the Effective Time Shareholder
will have, good and valid title to the Shares, free and clear of any Liens,
except for any Liens arising hereunder. Shareholder has, and at the Effective
Time will have, the power to vote, dispose of and otherwise transfer the Shares
without the approval, consent or other action of any person (other than a
general partner acting in such capacity).
(i) Except as set forth on Schedule 2(i) hereto, there are no
options or rights to acquire, or understandings or arrangements to which
Shareholder is a party relating to the Shares, other than this Agreement.
(j) The Shares represent all of the shares of Company Common Stock
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by
Shareholder.
(k) Shareholder understands and acknowledges that Parent is entering
into, and causing Merger Sub to enter into, the Merger Agreement in reliance
upon Shareholder's execution and delivery of this Agreement.
Section 3. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub represent and warrant to Shareholder as follows:
(a) Each of Parent and Merger Sub is duly organized, validly
existing and in good standing under the laws of the jurisdiction under which it
is organized.
(b) Each of Parent and Merger Sub has all necessary power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
(c) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by each of Parent and Merger Sub, and no other proceedings on
the part of Parent or Merger Sub are necessary to authorize this Agreement or to
consummate the transactions so contemplated.
(d) The execution, delivery and performance by each of Parent and
Merger Sub of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) contravene or conflict with Parent's
Certificate of Incorporation or Bylaws, (ii) assuming that all consents,
authorizations and approvals contemplated by subsection (e) below have been
obtained and all filings described therein have been made, contravene or
conflict with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to Parent or
any of its properties; or (iii) conflict with, or result in the breach or
termination of or constitute a default (with or without the giving of notice or
the lapse of time or both) under, or give rise to any right of termination,
cancellation, or loss of any benefit to which Parent is entitled under any
provision of any agreement, contract, license or other instrument binding upon
Parent or any of its properties, or allow the acceleration of the performance of
any obligation of Parent under any indenture, mortgage, deed of trust, lease,
license, contract, instrument or other agreement to which Parent is a party or
by which Parent, its assets or properties is subject or bound, other than such
contraventions, conflicts, violations, breaches,
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defaults or other occurrences that would not reasonably be expected to prevent,
delay or impair Parent's ability to consummate the transactions contemplated by
this Agreement.
(e) The execution, delivery and performance by each of Parent and
Merger Sub of this Agreement and the consummation of the transactions
contemplated hereby by each of Parent and Merger Sub require no filings,
notices, declarations, consents or other actions to be made by Parent or Merger
Sub with, nor are any approvals or other confirmations or consents required to
be obtained by Parent or Merger Sub from any Governmental Entity (except those
the failure of which to make, give or obtain, individually or in the aggregate,
would not reasonably be expected to prevent, delay or impair, Parent's or Merger
Sub's ability to consummate the transactions contemplated by this Agreement),
other than filings, notices, approvals, confirmations, consents, declarations or
decisions as set forth in Section 3.2(d) of the Merger Agreement and Section
3.2(d) of the Parent Disclosure Schedule (as defined in the Merger Agreement).
Section 4. Agreement to Vote; Proxy.
(a) Shareholder agrees with, and covenants to, Parent and Merger Sub
as follows:
(i) At any meeting of shareholders of the Company called to
vote upon the Merger, the Merger Agreement or the other transactions
contemplated by the Merger Agreement or at which a vote, consent or other
approval with respect to the Merger, the Merger Agreement or the other
transactions contemplated by the Merger Agreement is sought, Shareholder shall
vote (or cause to be voted) or shall consent, execute a consent or cause to be
executed a consent in respect of the Shares 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 transactions contemplated by the
Merger Agreement.
(ii) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote, consent
or other approval is sought, Shareholder shall vote (or cause to be voted) the
Shares against (x) any Acquisition Proposal or (y) any amendment of the
Company's Articles of Incorporation or By-laws which amendment would in any
manner prevent or materially impede, interfere with or delay the Merger, the
Merger Agreement or any of the other transactions contemplated by the Merger
Agreement.
(b) Shareholder hereby grants to, and appoints, Steve Burd and
Michael Ross and any other individual who is designated by Parent, until the
termination of this Agreement pursuant to Section 15, an irrevocable proxy,
coupled with an interest, and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Shareholder, with respect
to the Shares, to vote the Shares, or grant or execute a consent or approval, in
the complete discretion of Parent or Merger Sub, as the case may be, at any
meeting of shareholders of the Company or at any adjournment thereof or in any
other circumstances upon which their vote, consent or other approval is sought
in accordance with paragraph (a) of this Section 4. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of the
Texas Business Corporation Act. Shareholder agrees that this Agreement,
including the provisions of this Section 4 will be recorded in the books and
records of the Company.
Section 5. Additional Covenants.
(a) Disposition of Shares. Except pursuant to this Agreement,
Shareholder shall not, without the prior written consent of Parent, directly or
indirectly, during the term of this Agreement (i)
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grant or enter into any Lien, power of attorney or other agreement or
arrangement with respect to the voting of the Shares, (ii) sell, assign,
transfer, encumber or otherwise dispose of, or enter into any contract, option
or other arrangement or understanding with respect to the direct or indirect
sale, assignment, transfer, encumbrance or other disposition of any of the
Shares (except for a sale, assignment or transfer to an affiliate of Shareholder
who or which agrees to be bound by all of the provisions of this Agreement with
respect to such transferred Shares) or (iii) take any other action that would in
any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby. Shareholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that Shareholder may have.
(b) Shareholder Profit
(i) In the event that the Merger Agreement shall have been
terminated at any time pursuant to Section 7.1(d), (e), or (f) thereof
(provided, with respect to a termination pursuant to Section 7.1(d), a
termination fee could become payable to Parent pursuant to Section 7.2 of the
Merger Agreement), Shareholder shall pay to Parent an amount equal to 50% of the
profit (determined in accordance with this Section 5(b)) of Shareholder (i) from
the sale or other disposition of any Shares within 12 months of the termination
of this Agreement pursuant to an Acquisition Proposal, (ii) from the sale or
other disposition of any Shares (including a distribution to Shareholder's
partners, unless such distributee agrees to be bound by the terms of this
Agreement) within 12 months of the termination of this Agreement which is not
pursuant to a bona fide public offering of shares of Company Common Stock which
sale or disposition is made at such time as an Acquisition Proposal is pending
or (iii) from the sale of other disposition of any Shares pursuant to a Superior
Proposal (as defined in the Merger Agreement) at any time so long as the
agreement with respect to such Superior Proposal is entered into within 12
months of the termination of this Agreement. Payment shall be made promptly upon
the receipt of the proceeds from such sale or other disposition.
(ii) For purposes of this Section 5(b), the profit of
Shareholder shall equal (A) the aggregate consideration received by Shareholder
for the Shares that were sold or disposed of, valuing any non-cash consideration
(including any residual interest in the Company) at its fair market value on the
date of such consummation, less (B) $41.75 per Share multiplied by the number of
Shares sold or disposed of less (C) all out-of-pocket transaction costs incurred
by Shareholder directly in connection with such sale or disposition. With
respect to a distribution of Shares to partners at such time as an Acquisition
Proposal is pending with respect to which payment is required under Section
5(b)(i) above, the aggregate consideration shall be deemed to be the amount
proposed to be paid pursuant to the Acquisition Proposal.
(iii) For purposes of this Section 5(b), the fair market value
of any non-cash consideration consisting of:
(A) securities listed on a national securities
exchange or traded or quoted on the Nasdaq shall
be equal to the average closing price per share
of such security as reported on the composite
trading system of such exchange or by Nasdaq for
the five trading days ending on the trading day
immediately prior to the date of the value
determination; and
(B) consideration which is other than cash or
securities of the form specified in clause (A)
of this Section 5(b)(iii) shall be determined by
a nationally recognized independent investment
banking firm mutually agreed upon by the
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parties within 10 business days of the event
requiring selection of such banking firm;
provided, however, that if the parties are
unable to agree within two business days after
the date of such event as to the investment
banking firm, then the parties shall each select
one firm, and those firms shall select a third
investment banking firm, which third firm shall
make such determination; provided further, that
the fees and expenses of such investment banking
firm shall be borne equally by Parent and
Shareholder. The determination of the
investment-banking firm shall be binding upon
the parties.
(iv) Any payment of profit under this Section 5(b) shall be
paid in the same proportion of cash and non-cash consideration as the aggregate
consideration received by Shareholder in the Acquisition Proposal or other
disposition.
(v) Shareholder shall not engage in any transaction with
respect to the Shares with the primary purpose of depriving Parent of the
intended benefits of this Agreement.
(c) Governmental Filings. Shareholder shall promptly make any and
all filings that Shareholder is required to make with any Governmental Entity
with respect to the transactions contemplated by this Agreement or the Merger
Agreement. Shareholder further agrees to use its reasonable best efforts to
obtain all approvals required by any Governmental Entity to consummate the
transactions contemplated hereby.
Section 6. No Solicitations. Shareholder and its affiliates (other than
the Company and its subsidiaries) will immediately cease any existing
discussions or negotiations with any third parties conducted on or prior to the
date hereof with respect to any Acquisition Proposal. Shareholder agrees that it
will not, and will use its best efforts to cause such affiliates not to,
directly or indirectly, solicit, initiate, encourage or take any other action to
facilitate any inquiries or proposals with respect to, or that could reasonably
be expected to lead to, an Acquisition Proposal or engage in negotiations or
discussions concerning, or provide any confidential information relating to, any
Acquisition Proposal or agree to approve or recommend or participate in any
Acquisition Proposal. Shareholder agrees that it and any of such affiliates will
promptly advise Parent of, and communicate to Parent the terms of, any such
inquiry or proposal it or any of such affiliates may receive, and will promptly
advise Parent if it or any of such affiliates provides any such information to
any such person.
Section 7. Actions by Board. No action taken by the Board of Directors
of the Company shall modify, alter, change or otherwise affect the obligations
of Shareholder hereunder.
Section 8. Governing Law. This Agreement shall be governed by the
internal laws of the State of Texas without regard to the principles of
conflicts of law.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
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OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF
SUCH WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH
WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 8.
Section 9. Notices. Notices under this Agreement shall be deemed to be
duly given when delivered in person, by cable, telegram, telex or facsimile, by
overnight courier or by registered or certified mail (postage prepaid, return
receipt requested) in writing as follows:
If to Parent or Merger Sub, to:
Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588
Telecopy No.: (925) 467-3231
Attention: Michael C. Ross, General Counsel
With a copy to:
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111-2562
Telecopy No.: (415) 395-8095
Attention: Scott R. Haber
If to Shareholder, to:
Onstead Interests, Ltd.
c/o Robert R. Onstead
Randall's Food Markets, Inc.
3663 Briarpark
Houston, Texas 77042
Telecopy No.: (713) 917-1095
Section 10. Entire Agreement; Amendments. This Agreement constitutes the
entire understanding of the parties with respect to the subject matter hereof.
There are no restrictions, agreements, promises, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter and is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder. This Agreement may be amended only by a
written instrument duly executed by Parent, Merger Sub and Shareholder.
Section 11. Assignment. Notwithstanding any other provision of this
Agreement, this Agreement shall not be assignable by any party hereto except by
Parent or Merger Sub to any direct or indirect wholly owned subsidiary of
Parent; provided, however, that no such assignment shall relieve either Parent
or Merger Sub from its obligations hereunder. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
against, (i) as to Shareholder, Shareholder and Shareholder's beneficiaries and
representatives, and (ii) Parent and Merger Sub and
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their successors and permitted assigns. Shareholder agrees that this Agreement
and the obligations of Shareholder hereunder shall attach to such Shareholder'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 Shareholder's heirs, guardians, administrators or
successors.
Section 12. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity and enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any person or
entity or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid and
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
Section 13. Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith Shareholder shall and hereby does authorize Parent and
Merger Sub to notify the Company's transfer agent that there is a stop transfer
order with respect to all of the Shares subject to the terms of this Agreement
(and that this Agreement places limits on the voting and transfer of the
Shares). Shareholder further agrees to cause the Company not to register the
transfer of any certificate representing any of Shareholder's Shares unless such
transfer is made in accordance with the terms of this Agreement.
Section 14. Further Action. From time to time, at the request of Parent
or Merger Sub and without further consideration, Shareholder shall execute and
deliver to Parent and Merger Sub such documents and take such action as Parent
or Merger Sub may reasonably request in order to consummate the transactions
contemplated hereby.
Section 15. Termination. Except for Section 5(b), this Agreement shall
terminate and be of no further force and effect upon the earliest to occur of
(a) the Effective Time and (b) sixty (60) days after the termination of the
Merger Agreement pursuant to its terms; provided, however, that nothing herein
shall relieve any party for liability for any breach hereof. Section 5(b) shall
terminate in accordance with its terms.
Section 16. Survival. None of the representations, warranties, covenants
and other agreements in this Agreement or in any instrument delivered pursuant
to this Agreement, including any rights arising out of any breach of such
representations and warranties, covenants and other agreements, shall survive
the termination of this Agreement pursuant to Section 15, except for this
Section 16 and Sections 8, 9, 11, 18, 19 and 20.
Section 17. 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
all parties need not sign the same counterpart.
Section 18. Specific Performance. Shareholder, Parent and Merger Sub
acknowledge that this Agreement and the Shares are unique and that no party will
have an adequate remedy at law if any other party breaches any covenant herein
or fails to perform its obligations hereunder. Accordingly, Shareholder, Parent
and Merger Sub agree that the others shall have the right, in
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addition to any other rights which it may have, to specific performance and
equitable injunctive relief if any party shall fail or threaten to fail to
perform any of its obligations under this Agreement.
Section 19. Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expense.
Section 20. Shareholder Capacity. Shareholder signs solely in its
capacity as the record holder and beneficial owner of the Shares and nothing
herein shall limit or affect any actions taken or to be taken by any officer,
director or financial advisor of the Company or its subsidiaries in his, her or
its capacity as an officer, director or financial advisor of the Company,
subject to the Merger Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representatives thereunto duly authorized, all as
of the day and year first above written.
SAFEWAY INC.
By: /s/ MICHAEL C. ROSS
-----------------------------------
Title: Senior Vice President and
Secretary
SI MERGER SUB, INC.
By: /s/ MICHAEL C. ROSS
-----------------------------------
Title: Vice President and
Secretary
ONSTEAD INTERESTS, LTD.
By: ONSTEAD SERVICES LLC
By: /s/ ROBERT R. ONSTEAD
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Title: Managing Member
Shareholder Holds:
6,009,470 Shares of Common Stock
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