SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): June 26, 1995
Richfood Holdings, Inc.
(Exact name of registrant as specified in its charter)
Virginia 1-16900 54-1438602
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
8258 Richfood Road, Mechanicsville, Virginia 23111
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (804) 746-6000
Item 5. Other Events
On June 26, 1995, Richfood Holdings, Inc. ("Richfood") and
Super Rite Corporation ("Super Rite") entered into an
Agreement and Plan of Reorganization (the "Agreement") pursuant
to which Richfood will acquire Super Rite through a tax-free
merger (the "Merger"). The following summary of the transaction
is qualified in its entirety by reference to the Agreement, a
copy of which is filed herewith and incorporated herein by
reference.
Under the terms of the Agreement, Richfood will issue 1.0205
shares (the "Exchange Ratio") of its common stock, without par
value ("Richfood Common Stock"), for each share of Super
Rite common stock, no par value, stated value $.01 per share
("Super Rite Common Stock"), representing a value of $22.00
per Super Rite share, based upon Richfood's average stock price
for the 30 trading days prior to June 26, 1995. Approximately
9.6 million shares of Super Rite Common Stock were outstanding
at March 4, 1995. When the Merger is complete, former Super Rite
shareholders will hold approximately 31% of the total outstanding
Richfood Common Stock. The transaction will be accounted for as a
pooling ofinterests and is currently expected to be completed
before the end of calendar 1995.
The transaction has been approved by the boards of directors
of both companies, but remains subject to regulatory approvals,
approval by the shareholders of both Richfood and Super Rite and
other customary closing conditions, including the receipt of
opinions from investment bankers for each party (which opinions
shall be dated as of a date no earlier than three business days
prior to the date of the joint proxy statement/prospectus to be
mailed to the shareholders of Richfood and Super Rite
in connection with their consideration of the transaction) that
the Exchange Ratio is fair, from a financial point of view, to
their respective shareholders. Prior to their approval of the
transaction, the boards of directors of Richfood and Super Rite
received opinions from their respective investment bankers,
subject to customary assumptions, to the effect that the Exchange
Ratio was fair, from a financial point of view, to the
shareholders of the respective companies as of the date of the
Agreement. The Merger is further subject to the condition that
the last sale price of Richfood Common Stock as reported on The
Nasdaq National Market for the last full trading day prior to the
effective time of the Merger is not less than $18.33.
Either party may terminate the Agreement under certain
circumstances, including if the Merger has not been consummated
on or before December 31, 1995. In addition, Super Rite may
terminate the Agreement if it receives from a third party a bona
fide proposal with respect to the acquisition of all of the
outstanding Super Rite Common Stock, or all or substantially all
of Super Rite's assets, that the Super Rite board of directors
believes is more favorable than the Merger and Richfood does not
match that proposal (a "Superior Proposal"). In the event of a
termination by Super Rite to pursue a Superior Proposal, or if
Richfood terminates the Agreement in certain other limited
circumstances, Super Rite would be required to pay to Richfood a
termination fee of $7.5 million.
Super Rite has postponed indefinitely its 1995 annual
meeting of shareholders, which previously had been scheduled for
July 12, 1995, and instead will hold a special meeting to
consider the Merger. That special meeting is expected to be held
in September 1995 on a date to be scheduled. Richfood's
shareholders will have the opportunity to approve the
transactions contemplated in the Agreement at the Company's
1995 annual meeting, which will be held on the same day as the
Super Rite special meeting.
Richfood has received the agreement of persons owning
approximately 51% of the outstanding shares of Super Rite Common
Stock to vote all shares of Super Rite Common Stock over which
they exercise voting control for approval of the Agreement
and the Merger, unless the board of directors of Super Rite
recommends a Superior Proposal or otherwise, in the exercise of
its fiduciary duties upon the advice of counsel, withdraws,
amends or modifies in any manner adverse to Richfood its
favorable recommendation of the Merger. Such vote would be
sufficient to approve the Agreement and the Merger without any
action by any other shareholder of Super Rite.
After the Merger is completed, Super Rite will operate as a
separate, wholly owned subsidiary of Richfood. The combined
company is expected to have annual net sales in excess of $3.0
billion, based on the most recent fiscal year results for
Richfood and Super Rite. The combined company will serve over
1,700 retail grocery stores throughout the Mid-Atlantic market
area.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits
Exhibit 2.1 Agreement and Plan of
Reorganization, dated as of June
26, 1995, by and between Richfood
Holdings, Inc. and Super Rite
Corporation.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
RICHFOOD HOLDINGS, INC.
(Registrant)
Date: July 12, 1995 By: /s/ John E. Stokely
John E. Stokely
President and Chief Operating
Officer
EXHIBIT INDEX
Exhibit Number and Description
2.1 Agreement and Plan of Reorganization, dated as of
June 26, 1995, by and between Richfood Holdings,
Inc. and Super Rite Corporation.
Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
RICHFOOD HOLDINGS, INC.
AND
SUPER RITE CORPORATION
Dated as of June 26, 1995
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1. Agreement . . . . . . . . . . . . . . . . . . 2
Section 1.2. Certificates. . . . . . . . . . . . . . . . . 2
Section 1.3. Closing; Closing Date . . . . . . . . . . . . 2
Section 1.4. Code. . . . . . . . . . . . . . . . . . . . . 2
Section 1.5. Confidentiality Agreement . . . . . . . . . . 3
Section 1.6. Contracts . . . . . . . . . . . . . . . . . . 3
Section 1.7. DGCL. . . . . . . . . . . . . . . . . . . . . 3
Section 1.8. DLJ . . . . . . . . . . . . . . . . . . . . . 3
Section 1.9. Effective Time. . . . . . . . . . . . . . . . 3
Section 1.10. ERISA . . . . . . . . . . . . . . . . . . . . 3
Section 1.11. Exchange Act. . . . . . . . . . . . . . . . . 3
Section 1.12. Exchange Agent. . . . . . . . . . . . . . . . 3
Section 1.13. GAAP. . . . . . . . . . . . . . . . . . . . . 4
Section 1.14. Governmental Authority. . . . . . . . . . . . 4
Section 1.15. HSR Act . . . . . . . . . . . . . . . . . . . 4
Section 1.16. IRS . . . . . . . . . . . . . . . . . . . . . 4
Section 1.17. Joint Proxy Statement/Prospectus. . . . . . . 4
Section 1.18. Knowledge of Richfood . . . . . . . . . . . . 4
Section 1.19. Knowledge of Super Rite . . . . . . . . . . . 5
Section 1.20. Law . . . . . . . . . . . . . . . . . . . . . 5
Section 1.21. Material Adverse Effect . . . . . . . . . . . 5
Section 1.22. Merger. . . . . . . . . . . . . . . . . . . . 6
Section 1.23. Merger Subsidiary . . . . . . . . . . . . . . 6
Section 1.24. Nasdaq. . . . . . . . . . . . . . . . . . . . 6
Section 1.25. NYSE. . . . . . . . . . . . . . . . . . . . . 6
Section 1.26. Partnership; Partnerships . . . . . . . . . . 6
Section 1.27. Permits . . . . . . . . . . . . . . . . . . . 7
Section 1.28. Plan of Merger. . . . . . . . . . . . . . . . 7
Section 1.29. Registration Statement. . . . . . . . . . . . 7
Section 1.30. Richfood. . . . . . . . . . . . . . . . . . . 7
Section 1.31. Richfood Common Stock . . . . . . . . . . . . 7
Section 1.32. Richfood Companies. . . . . . . . . . . . . . 7
Section 1.33. Richfood Fiscal 1995 Financial Statements . . 8
Section 1.34. Richfood SEC Reports. . . . . . . . . . . . . 8
Section 1.35. SEC . . . . . . . . . . . . . . . . . . . . . 8
Section 1.36. Securities Act. . . . . . . . . . . . . . . . 8
Section 1.37. Special Meetings. . . . . . . . . . . . . . . 8
Section 1.38. Subsidiary; Subsidiaries. . . . . . . . . . . 9
Section 1.39. Super Rite. . . . . . . . . . . . . . . . . . 9
Section 1.40. Super Rite Common Stock . . . . . . . . . . . 9
Section 1.41. Super Rite Companies. . . . . . . . . . . . . 9
Section 1.42. Super Rite Indenture. . . . . . . . . . . . . 10
Section 1.43. Super Rite Notes. . . . . . . . . . . . . . . 10
Section 1.44. Super Rite SEC Reports. . . . . . . . . . . . 10
Section 1.45. Taxes . . . . . . . . . . . . . . . . . . . . 10
Section 1.46. Tax Returns . . . . . . . . . . . . . . . . . 11
Section 1.47. Wheat . . . . . . . . . . . . . . . . . . . . 11
ARTICLE II
THE MERGER
Section 2.1. The Merger. . . . . . . . . . . . . . . . . . 12
Section 2.2. Exchange of Certificates. . . . . . . . . . . 13
ARTICLE III
SHAREHOLDER APPROVAL; CLOSING
Section 3.1. Shareholder Approval. . . . . . . . . . . . . 17
Section 3.2. Time and Place of Closing . . . . . . . . . . 18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RICHFOOD
Section 4.1. Organization and Authority of the Richfood
Companies . . . . . . . . . . . . . . . . . . 19
Section 4.2. Capitalization. . . . . . . . . . . . . . . . 20
Section 4.3. Authority Relative to this Agreement. . . . . 21
Section 4.4. Consents and Approvals; No Violations . . . . 22
Section 4.5. Reports . . . . . . . . . . . . . . . . . . . 24
Section 4.6. Absence of Certain Events . . . . . . . . . . 25
Section 4.7. Joint Proxy Statement/Prospectus. . . . . . . 26
Section 4.8. Litigation. . . . . . . . . . . . . . . . . . 26
Section 4.9. Employee Benefit Plans. . . . . . . . . . . . 27
Section 4.10. Tax Matters . . . . . . . . . . . . . . . . . 29
Section 4.11. Compliance with Law . . . . . . . . . . . . . 31
Section 4.12. Fees and Expenses of Brokers and Others . . . 31
Section 4.13. Accuracy of Information . . . . . . . . . . . 31
Section 4.14. Absence of Undisclosed Liabilities. . . . . . 32
Section 4.15. Opinion of Financial Advisor. . . . . . . . . 32
Section 4.16. Accounting Matters. . . . . . . . . . . . . . 33
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF SUPER RITE
Section 5.1. Organization and Authority of the Super Rite
Companies . . . . . . . . . . . . . . . . . . 33
Section 5.2. Capitalization. . . . . . . . . . . . . . . . 34
Section 5.3. Authority Relative to this Agreement. . . . . 35
Section 5.4. Consents and Approvals; No Violations . . . . 36
Section 5.5. Reports . . . . . . . . . . . . . . . . . . . 38
Section 5.6. Absence of Certain Events . . . . . . . . . . 39
Section 5.7. Joint Proxy Statement/Prospectus. . . . . . . 40
Section 5.8. Litigation. . . . . . . . . . . . . . . . . . 41
Section 5.9. Title to and Sufficiency of Assets. . . . . . 42
Section 5.10. Contracts . . . . . . . . . . . . . . . . . . 42
Section 5.11. Labor Matters . . . . . . . . . . . . . . . . 44
Section 5.12. Employee Benefit Plans. . . . . . . . . . . . 45
Section 5.13. Tax Matters . . . . . . . . . . . . . . . . . 47
Section 5.14. Compliance with Law . . . . . . . . . . . . . 51
Section 5.15. Transactions With Affiliates. . . . . . . . . 52
Section 5.16. Fees and Expenses of Brokers and Others . . . 53
Section 5.17. Accuracy of Information . . . . . . . . . . . 53
Section 5.18. Absence of Undisclosed Liabilities. . . . . . 54
Section 5.19. Opinion of Financial Advisor. . . . . . . . . 54
Section 5.20. Accounting Matters. . . . . . . . . . . . . . 55
ARTICLE VI
COVENANTS
Section 6.1. Conduct of the Businesses of Richfood and
Super Rite. . . . . . . . . . . . . . . . . . 55
Section 6.2. No Solicitation . . . . . . . . . . . . . . . 62
Section 6.3. The Registration Statement; Listing . . . . . 63
Section 6.4. Access to Information; Confidentiality
Agreement . . . . . . . . . . . . . . . . . . 66
Section 6.5. Best Efforts. . . . . . . . . . . . . . . . . 67
Section 6.6. Consents. . . . . . . . . . . . . . . . . . . 67
Section 6.7. Public Announcements. . . . . . . . . . . . . 68
Section 6.8. Certain Leases. . . . . . . . . . . . . . . . 68
Section 6.9. Affiliates. . . . . . . . . . . . . . . . . . 69
Section 6.10. Stock Options . . . . . . . . . . . . . . . . 70
Section 6.11. Letter of Super Rite's Accountants. . . . . . 72
Section 6.12. Letter of Richfood's Accountants. . . . . . . 72
Section 6.13. Opinions of Financial Advisors. . . . . . . . 73
Section 6.14. Registration Rights . . . . . . . . . . . . . 73
Section 6.15. Indemnification; Insurance. . . . . . . . . . 84
ARTICLE VII
CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER
Section 7.1. Conditions Precedent to Each Party's
Obligation to Effect the Merger . . . . . . . 85
Section 7.2. Conditions Precedent to Obligations of Super
Rite. . . . . . . . . . . . . . . . . . . . . 88
Section 7.3. Conditions Precedent to Obligations of
Richfood. . . . . . . . . . . . . . . . . . 90
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
Section 8.1. Termination . . . . . . . . . . . . . . . . . 92
Section 8.2. Effect of Termination . . . . . . . . . . . . 95
Section 8.3. Termination Fee . . . . . . . . . . . . . . . 95
Section 8.4. Amendment . . . . . . . . . . . . . . . . . . 97
Section 8.5. Extension; Waiver . . . . . . . . . . . . . . 98
ARTICLE IX
MISCELLANEOUS
Section 9.1. Survival of Representations and Warranties. . 98
Section 9.2. Brokerage Fees and Commissions. . . . . . . . 98
Section 9.3. Entire Agreement; Assignment. . . . . . . . . 99
Section 9.4. Notices . . . . . . . . . . . . . . . . . . . 99
Section 9.5. Governing Law . . . . . . . . . . . . . . . .101
Section 9.6. Descriptive Headings. . . . . . . . . . . . .101
Section 9.7. Parties in Interest . . . . . . . . . . . . .101
Section 9.8. Counterparts. . . . . . . . . . . . . . . . .102
Section 9.9. Specific Performance. . . . . . . . . . . . .102
Section 9.10. Fees and Expenses . . . . . . . . . . . . . .102
Section 9.11. Severability. . . . . . . . . . . . . . . . .102
EXHIBITS
Exhibit 1.18 Knowledge of Richfood
Exhibit 1.19 Knowledge of Super Rite
Exhibit 1.26A Partnerships of Richfood
Exhibit 1.26B Partnerships of Super Rite
Exhibit 1.28 Plan of Merger
Exhibit 1.38A Subsidiaries of Richfood
Exhibit 1.38B Subsidiaries of Super Rite
Exhibit 3.1A Certain Shareholders of Super Rite
Exhibit 3.1B Form of Super Rite Shareholder Letter
Exhibit 4.2 Richfood Options, Warrants, Subscriptions or
Other Rights
Exhibit 4.4 Richfood Required Consents
Exhibit 4.10 Tax Matters Concerning Richfood
Exhibit 5.2 Super Rite Outstanding Options, Warrants,
Subscriptions or Other Rights
Exhibit 5.4 Super Rite Required Consents
Exhibit 5.6 Adverse Changes Affecting Super Rite
Exhibit 5.8 Super Rite Litigation
Exhibit 5.9 Certain Permitted Liens
Exhibit 5.11 Super Rite Labor Matters
Exhibit 5.12 Super Rite Benefit Plans
Exhibit 5.13 Tax Matters Concerning Super Rite
Exhibit 5.15 Transactions With Affiliates by Super Rite
Exhibit 6.8 Amendments to Certain Leases to be Effected
Prior to Closing
Exhibit 6.9 Form of Super Rite Affiliate Letter
Exhibit 6.14 Certain Super Rite Shareholders
Exhibit 7.3 Forms of Consulting and Non-competition
Agreements
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of June 26,
1995, by and between RICHFOOD HOLDINGS, INC., a Virginia
corporation ("Richfood"), and SUPER RITE CORPORATION, a Delaware
corporation ("Super Rite").
RECITALS
WHEREAS, the respective Boards of Directors of Richfood and
Super Rite have determined that it is in the best interests of
their respective shareholders that the businesses and operations
of Richfood and Super Rite be combined; and
WHEREAS, the parties have determined that the most practical
manner to give effect to such combination is through the merger
of SR Acquisition, Inc., a Delaware corporation and wholly-owned
subsidiary of Richfood ("Merger Subsidiary"), with and into Super
Rite (the "Merger"), with Super Rite to be the surviving
corporation of such Merger; and
WHEREAS, pursuant to the Merger, each outstanding share of
Super Rite Common Stock (as hereinafter defined) will be
converted into 1.0205 shares of Richfood Common Stock (as
hereinafter defined); and
WHEREAS, for Federal income tax purposes, it is intended
that the transactions contemplated by this Agreement shall
constitute a reorganization within the meaning of section 368 of
the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
NOW, THEREFORE, in consideration of the premises, which are
incorporated into and made part of this Agreement, and of the
mutual representations, warranties, covenants, agreements and
conditions set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Agreement. "Agreement" shall mean this
Agreement and Plan of Reorganization, together with the Plan of
Merger and other Exhibits attached hereto, as amended from time
to time in accordance with the terms hereof.
Section 1.2. Certificates. "Certificates" shall have the
meaning given in Section 2.2 hereof.
Section 1.3. Closing; Closing Date. "Closing" shall mean
the closing conference held pursuant to Section 3.2 hereof, and
"Closing Date" shall mean the date on which the Closing occurs.
Section 1.4. Code. "Code" shall mean, as appropriate, the
Internal Revenue Code of 1954 or of 1986, each as amended.
Section 1.5. Confidentiality Agreement. "Confidentiality
Agreement" shall mean the letter agreement, dated June 15, 1995,
between Super Rite and Richfood.
Section 1.6. Contracts. "Contracts" shall mean contracts,
agreements, leases, licenses, arrangements, understandings,
relationships and commitments, written or oral.
Section 1.7. DGCL. "DGCL" shall mean the Delaware General
Corporation Law, as amended.
Section 1.8. DLJ. "DLJ" shall mean Donaldson, Lufkin &
Jenrette, financial advisors to Super Rite.
Section 1.9. Effective Time. "Effective Time" shall have
the meaning given in Section 3.1 hereof.
Section 1.10. ERISA. "ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as amended.
Section 1.11. Exchange Act. "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended.
Section 1.12. Exchange Agent. "Exchange Agent" shall mean
First Union National Bank of North Carolina.
Section 1.13. GAAP. "GAAP" shall mean generally accepted
accounting principles as in effect in the United States of
America at the time of the preparation of the subject financial
statement.
Section 1.14. Governmental Authority. "Governmental
Authority" shall mean any federal, state, provincial, municipal
or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case whether of
the United States, any of its possessions or territories, or of
any foreign nation.
Section 1.15. HSR Act. "HSR Act" shall mean the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Section 1.16. IRS. "IRS" shall mean the Internal Revenue
Service.
Section 1.17. Joint Proxy Statement/Prospectus. "Joint
Proxy Statement/Prospectus" shall mean the Proxy State-
ment/Prospectus of Richfood and Super Rite included in the
Registration Statement and distributed to the shareholders of
each company in connection with the Special Meetings.
Section 1.18. Knowledge of Richfood. "Knowledge of
Richfood" shall mean the actual knowledge, after due inquiry, of
those officers of Richfood identified on Exhibit 1.18 attached
hereto.
Section 1.19. Knowledge of Super Rite. "Knowledge of Super
Rite" shall mean the actual knowledge, after due inquiry, of
those officers of Super Rite identified on Exhibit 1.19 attached
hereto.
Section 1.20. Law. "Law" shall mean any federal, state,
provincial, local or other law or governmental requirement of any
kind, and the rules, regulations and orders promulgated
thereunder.
Section 1.21. Material Adverse Effect. "Material Adverse
Effect" shall mean, with respect to any entity or group of
entities, a material adverse effect (or any development which,
insofar as reasonably can be foreseen, is reasonably likely to
have a material adverse effect), on the business, assets,
financial or other condition, results of operations or prospects
of such entity or group of entities taken as a whole; provided,
however, that in the case of the Super Rite Companies, the term
"Material Adverse Effect" shall exclude any such matter
attributable to any failure to extend the existing supply
agreement between Super Rite Foods, Inc. and Shoppers Food
Warehouse Corp. and certain of its affiliates, and any change in
beneficial ownership of a majority of the outstanding capital
stock of Shoppers Food Warehouse Corp.
Section 1.22. Merger. "Merger" shall have the meaning
given in Section 2.1 hereof.
Section 1.23. Merger Subsidiary. "Merger Subsidiary" shall
mean SR Acquisition, Inc., a Delaware corporation and wholly-
owned subsidiary of Richfood.
Section 1.24. Nasdaq. "Nasdaq" shall mean The Nasdaq
National Market.
Section 1.25. NYSE. "NYSE" shall mean The New York Stock
Exchange, Inc.
Section 1.26. Partnership; Partnerships. "Partnership"
shall mean any limited or general partnership, joint venture or
other business association, other than a Subsidiary, in which any
party has a direct or indirect interest (collectively,
"Partnerships"), all of such Partnerships of Richfood being
listed on Exhibit 1.26A attached hereto and all of such
Partnerships of Super Rite being listed on Exhibit 1.26B attached
hereto.
Section 1.27. Permits. "Permits" shall mean permits,
licenses and governmental authorizations, registrations and
approvals.
Section 1.28. Plan of Merger. "Plan of Merger" shall mean
the plan of merger of Merger Subsidiary with and into Super Rite,
in substantially the form attached hereto as Exhibit 1.28.
Section 1.29. Registration Statement. "Registration
Statement" shall mean the Registration Statement on Form S-4,
including the Joint Proxy Statement/Prospectus contained therein,
to be filed by Richfood with the SEC with respect to the Richfood
Common Stock to be offered to the holders of Super Rite Common
Stock in the Merger.
Section 1.30. Richfood. "Richfood" shall mean Richfood
Holdings, Inc., a Virginia corporation.
Section 1.31. Richfood Common Stock. "Richfood Common
Stock" shall mean the common stock, without par value, of
Richfood.
Section 1.32. Richfood Companies. "Richfood Companies"
shall mean Richfood, its Subsidiaries and the Partnerships in
which it has an interest.
Section 1.33. Richfood Fiscal 1995 Financial Statements.
"Richfood Fiscal 1995 Financial Statements" shall mean the
audited consolidated balance sheet of Richfood as of April 29,
1995, and the audited consolidated statements of earnings,
stockholders' equity and cash flows for the fiscal year then
ended, together with the notes thereto, a true and correct copy
of which has been provided by Richfood to Super Rite.
Section 1.34. Richfood SEC Reports. "Richfood SEC Reports"
shall mean (a) Richfood's Annual Reports on Form 10-K for the
fiscal years ended April 30, 1994, and May 1, 1993, and (b) all
documents filed by Richfood with the SEC pursuant to Sections
13(a) and 13(c) of the Exchange Act, any definitive proxy
statements filed pursuant to Section 14 of the Exchange Act and
any report filed pursuant to Section 15(d) of the Exchange Act
following the filing of Richfood's Annual Report on Form 10-K for
the fiscal year ended April 30, 1994.
Section 1.35. SEC. "SEC" shall mean the Securities and
Exchange Commission.
Section 1.36. Securities Act. "Securities Act" shall mean
the Securities Act of 1933, as amended.
Section 1.37. Special Meetings. "Special Meetings" shall
mean, collectively, the special or annual meeting of shareholders
of Richfood and the special meeting of shareholders of Super Rite
called pursuant to Section 3.1 hereof to consider and approve the
transactions contemplated herein, and any adjournments thereof.
Section 1.38. Subsidiary; Subsidiaries. "Subsidiary" shall
mean (i) each corporate entity with respect to which a party has
the right to vote (directly or indirectly through one or more
other entities or otherwise) shares representing 50% or more of
the votes eligible to be cast in the election of directors of
such entity, and (ii) each other corporate entity which
constitutes a "significant subsidiary," as defined in Rule 1-02
of Regulation S-X adopted under the Exchange Act (collectively,
"Subsidiaries"), all of the Subsidiaries of Richfood being listed
on Exhibit 1.38A attached hereto and all of the Subsidiaries of
Super Rite being listed on Exhibit 1.38B attached hereto.
Section 1.39. Super Rite. "Super Rite" shall mean Super
Rite Corporation, a Delaware corporation.
Section 1.40. Super Rite Common Stock. "Super Rite Common
Stock" shall mean the Common Stock, no par value, $.01 stated
value per share, of Super Rite.
Section 1.41. Super Rite Companies. "Super Rite Companies"
shall mean Super Rite, its Subsidiaries and the Partnerships in
which it has an interest.
Section 1.42. Super Rite Indenture. "Super Rite Indenture"
shall mean the Indenture, dated as of April 1, 1992, by and among
Super Rite Foods, Inc., certain guarantors named therein and
Dauphin Deposit Bank and Trust Company, as trustee, pursuant to
which the Super Rite Notes were issued.
Section 1.43. Super Rite Notes. "Super Rite Notes" shall
mean the 10 5/8% Senior Subordinated Notes due 2002 issued by
Super Rite Foods, Inc., a Delaware corporation and wholly-owned
subsidiary of Super Rite.
Section 1.44. Super Rite SEC Reports. "Super Rite SEC
Reports" shall mean (a) Super Rite's Annual Reports on Form 10-K
for the fiscal years ended March 4, 1995, February 26, 1994, and
February 27, 1993, and (b) all documents filed by Super Rite with
the SEC pursuant to Sections 13(a) and 13(c) of the Exchange Act,
any definitive proxy statements filed pursuant to Section 14 of
the Exchange Act and any report filed pursuant to Section 15(d)
of the Exchange Act following the filing of Super Rite's Annual
Report on Form 10-K for the fiscal year ended March 4, 1995.
Section 1.45. Taxes. "Taxes" shall mean any and all taxes,
levies, imposts, duties, assessments, charges and withholdings
imposed or required to be collected by or paid over to any
federal, state, local or foreign Governmental Authority or any
political subdivision thereof, including without limitation
income, gross receipts, ad valorem, value added, minimum tax,
franchise, sales, use, excise, license, real or personal
property, unemployment, disability, stock transfer, mortgage
recording, estimated, withholding or other tax, governmental fee
or other like assessment or charge of any kind whatsoever, and
including any interest, penalties, fines, assessments or
additions to tax imposed in respect of the foregoing, or in
respect of any failure to comply with any requirement regarding
Tax Returns.
Section 1.46. Tax Returns. "Tax Returns" shall mean any
report, return, information statement, payee statement or other
information required to be provided to any federal, state, local
or foreign Governmental Authority, or otherwise retained, with
respect to Taxes, the Richfood Benefit Plans (as defined in
Section 4.9 hereof) or the Super Rite Benefit Plans (as defined
in Section 5.12 hereof).
Section 1.47. Wheat. "Wheat" shall mean Wheat, First
Securities, Inc., d/b/a Wheat First Butcher Singer, financial
advisors to Richfood.
ARTICLE II
THE MERGER
Section 2.1. The Merger. (a) Richfood has formed Merger
Subsidiary as a wholly-owned subsidiary under the laws of the
State of Delaware. Subject to the terms and conditions of this
Agreement, Richfood will cause Merger Subsidiary to execute and
deliver the Plan of Merger, and Richfood, as the sole shareholder
of Merger Subsidiary, will approve the execution, delivery and
performance of the Plan of Merger by Merger Subsidiary.
(b) Subject to the terms and conditions of this Agreement
and the Plan of Merger, at the Effective Time, Merger Subsidiary
shall be merged with and into Super Rite in accordance with the
provisions of, and with the effects provided in, Subchapter IX of
the DGCL (the "Merger"). Super Rite shall be the surviving
corporation resulting from the Merger and as a result shall
become a wholly-owned subsidiary of Richfood and shall continue
to be governed by the laws of the State of Delaware. The Plan of
Merger provides for the terms and conditions of the Merger, which
terms and conditions are incorporated herein and made a part of
this Agreement by reference.
(c) Pursuant to the Merger, each share of Super Rite Common
Stock outstanding immediately prior to the Effective Time (other
than shares of Super Rite Common Stock held by Richfood, if any,
which shares shall be cancelled in the Merger) shall be converted
into and become 1.0205 shares of Richfood Common Stock.
(d) No fraction of a share of Richfood Common Stock shall
be issued in connection with the conversion of Super Rite Common
Stock in the Merger and the distribution of Richfood Common Stock
in respect thereof, but in lieu of such fraction, the Exchange
Agent shall make a cash payment (without interest) equal to the
same fraction of the market value of a full share of Richfood
Common Stock, computed on the basis of the mean of the high and
low sales prices of Richfood Common Stock as reported on Nasdaq
on the first full day on which the Richfood Common Stock is
traded on Nasdaq after the Effective Time.
(e) Richfood and Super Rite agree to use their best efforts
to cause the Merger to be consummated in accordance with the
terms of the Plan of Merger.
Section 2.2. Exchange of Certificates.
(a) Prior to the Effective Time, Richfood shall appoint the
Exchange Agent to act as the exchange agent in connection with
the Merger. From and after the Effective Time, each holder of a
certificate which immediately prior to the Effective Time
represented outstanding shares of Super Rite Common Stock (the
"Certificates") shall be entitled to receive in exchange
therefor, upon surrender thereof to the Exchange Agent, a
certificate or certificates representing the number of whole
shares of Richfood Common Stock into which such holder's shares
were converted in the Merger (together with cash in lieu of
fractional shares). Immediately prior to the Effective Time,
Richfood will deliver to the Exchange Agent, in trust for the
benefit of the holders of Super Rite Common Stock, shares of
Richfood Common Stock (together with cash in immediately
available funds in an amount sufficient to pay cash in lieu of
fractional shares, as provided in Section 2.1 hereof) necessary
to make the exchanges contemplated by Section 2.1 hereof on a
timely basis.
(b) Promptly after the Effective Time, the Exchange Agent
shall mail to each record holder of Super Rite Common Stock as of
the Effective Time, a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to
Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of Certificates in exchange for shares of
Richfood Common Stock (together with cash in lieu of fractional
shares). Upon surrender to the Exchange Agent of a Certificate,
together with such letter of transmittal duly executed, and any
other required documents, the holder of such Certificate shall be
entitled to receive in exchange therefor shares of Richfood
Common Stock as set forth in the Plan of Merger (together with
cash in lieu of fractional shares), and such Certificate shall
forthwith be cancelled. No holder of a Certificate or
Certificates shall be entitled to receive any dividend or other
distribution from Richfood until the surrender of such holder's
Certificate for a certificate or certificates representing shares
of Richfood Common Stock. Upon such surrender, there shall be
paid to the holder the amount of any dividends or other
distributions (without interest) which theretofore became
payable, but which were not paid by reason of the foregoing, with
respect to the number of whole shares of Richfood Common Stock
represented by the certificates issued upon surrender. If
delivery of Richfood Common Stock is to be made to a person other
than the person in whose name the Certificate surrendered is
registered or if any certificate for shares of Richfood Common
Stock is to be issued in a name other than that in which the
Certificate surrendered therefor is registered, it shall be a
condition of such delivery or issuance that the Certificate so
surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting such delivery or
issuance shall pay any transfer or other taxes required by reason
of such delivery or issuance to a person other than the
registered holder of the Certificate surrendered or establish to
the satisfaction of Richfood that such tax has been paid or is
not applicable. Until surrendered in accordance with the
provisions of this Section 2.2, each Certificate shall represent
for all purposes only the right to receive shares of Richfood
Common Stock (and cash in lieu of fractional shares) as provided
in Section 2.1 hereto, without any interest thereon.
(c) After the Effective Time, there shall be no transfers
on the stock transfer books of Super Rite of the shares of Super
Rite Common Stock that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are
presented to Richfood or Super Rite for transfer, they shall be
cancelled and exchanged for shares of Richfood Common Stock (and
cash in lieu of fractional shares) as provided in Section 2.1
hereof, in accordance with the procedures set forth in this
Section 2.2.
(d) Any shares of Richfood Common Stock (and any accrued
dividends and distributions thereon), and any cash delivered to
the Exchange Agent for payment in lieu of fractional shares, that
remain unclaimed by the former shareholders of Super Rite on the
first anniversary of the Effective Time shall be delivered by the
Exchange Agent to Richfood. Any former shareholders of Super
Rite who have not theretofore complied with this Section 2.2
shall thereafter look only to Richfood for satisfaction of their
claim for the consideration set forth in the Plan of Merger,
without any interest thereon. Notwithstanding the foregoing,
neither Richfood nor Super Rite shall be liable to any holder of
shares of Super Rite Common Stock for any shares of Richfood
Common Stock (or dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
ARTICLE III
SHAREHOLDER APPROVAL; CLOSING
Section 3.1. Shareholder Approval. (a) This Agreement
shall be submitted for consideration and approval to the holders
of shares of Richfood Common Stock at a special or annual meeting
of shareholders duly held for such purpose by Richfood.
(b) This Agreement and the Plan of Merger shall be
submitted for consideration and approval to the holders of shares
of Super Rite Common Stock at a special meeting of shareholders
duly held for such purpose by Super Rite. Each of the
shareholders of Super Rite identified in Exhibit 3.1A hereto,
being the holders of a majority of the outstanding shares of
Super Rite Common Stock, has duly executed and delivered to
Richfood a letter agreement in the form of Exhibit 3.1B hereto
with respect to, among other things, such shareholder's agreement
to vote all shares of Super Rite Common Stock over which such
shareholder exercises voting control for approval of this
Agreement and the Plan of Merger at the Super Rite Special
Meeting.
(c) Richfood and Super Rite shall coordinate and cooperate
with respect to the timing of the Special Meetings and shall
endeavor to hold such meetings on the same day and as soon as
practicable after the date hereof. The respective Boards of
Directors of Richfood and Super Rite shall recommend that their
respective shareholders approve this Agreement and the Plan of
Merger and the transactions contemplated hereby and thereby, and
such recommendation shall be contained in the Joint Proxy
Statement/Prospectus. On the first business day on or by which
(i) this Agreement and the Plan of Merger have been duly approved
by the requisite vote of the holders of shares of Richfood Common
Stock and Super Rite Common Stock, and (ii) the Closing of the
transactions contemplated by this Agreement and the Plan of
Merger shall have occurred, or such later date as shall be agreed
upon by Richfood and Super Rite, a certificate of merger shall be
filed in accordance with the DGCL, and the Merger shall become
effective in accordance with the terms of the Plan of Merger at
the time and date contemplated therein (such time and date being
referred to herein as the "Effective Time").
Section 3.2. Time and Place of Closing. The Closing of
the transactions contemplated by this Agreement and the Plan of
Merger will take place at 11:00 A.M. on a date mutually agreed
upon by the parties hereto, which shall be no later than the
third business day following the date on which all of the
conditions to the obligations of the parties hereunder set forth
in Article VII hereof have been satisfied or waived. The place
of Closing shall be at such place as may be mutually agreed upon
by the parties hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RICHFOOD
Richfood represents and warrants to Super Rite as follows:
Section 4.1. Organization and Authority of the Richfood
Companies. Each of the Richfood Companies is duly organized,
validly existing and in good standing under the laws of its
respective jurisdiction of organization. Each of the Richfood
Companies has full corporate or partnership power to carry on its
respective business as it is now being conducted and to own,
operate and hold under lease its assets and properties as, and in
the places where, such properties and assets now are owned,
operated or held. Each of the Richfood Companies is duly
qualified as a foreign entity to do business, and is in good
standing, in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect on the Richfood
Companies. Exhibit 1.38A constitutes a true and complete list of
all of the Subsidiaries of Richfood, and Exhibit 1.26A
constitutes a true and complete list of all of the Partnerships
in which Richfood has an interest. The copies of the Amended and
Restated Articles of Incorporation and Bylaws of Richfood which
have been delivered to Super Rite are complete and correct and in
full force and effect on the date hereof.
Section 4.2. Capitalization. (a) Richfood's authorized
equity capitalization consists of 60,000,000 shares of Richfood
Common Stock and 5,000,000 shares of preferred stock, without par
value per share. As of the close of business on June 20, 1995,
21,424,459 shares of Richfood Common Stock and no shares of
Richfood preferred stock were issued and outstanding. Such
shares of Richfood Common Stock constituted all of the issued and
outstanding shares of capital stock of Richfood as of such date.
All issued and outstanding shares of Richfood Common Stock have
been duly authorized and validly issued and are fully paid and
nonassessable, are not subject to and have not been issued in
violation of any preemptive rights and have not been issued in
violation of any federal or state securities laws. All of the
outstanding shares of capital stock of Richfood's Subsidiaries
are validly issued, fully paid and nonassessable and are, except
as disclosed in Exhibit 1.38A hereto, owned by Richfood, directly
or indirectly, free and clear of all liens, claims, charges or
encumbrances. Except for the declaration and payment of
dividends in the ordinary course of business, Richfood has not,
subsequent to April 29, 1995, declared or paid any dividend on,
or declared or made any distribution with respect to, or
authorized or effected any split-up or any other recapitalization
of, any of the Richfood Common Stock, or directly or indirectly
redeemed, purchased or otherwise acquired any of its outstanding
capital stock or agreed to take any such action and will not take
any such action during the period between the date of this
Agreement and the Effective Time. Except as set forth on Exhibit
4.2 attached hereto, there are no outstanding options, warrants,
subscriptions or other rights to purchase or acquire any capital
stock of any of the Richfood Companies, and there are no
Contracts pursuant to which any of the Richfood Companies is
bound to sell or issue any shares of its capital stock. All
outstanding shares of Richfood Common Stock are duly included for
trading on Nasdaq.
(b) All of the shares of Richfood Common Stock to be issued
to holders of Super Rite Common Stock in the Merger have been
duly authorized for issuance and, when issued in accordance with
the Plan of Merger, will be validly issued, fully paid and
nonassessable, and will not be subject to and will not be issued
in violation of any preemptive rights.
Section 4.3. Authority Relative to this Agreement. The
execution, delivery and performance of this Agreement and of all
of the other documents and instruments required hereby by
Richfood are within the corporate power of Richfood. The
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
the Board of Directors of Richfood and no other corporate
proceedings on the part of Richfood are necessary to authorize
this Agreement or to consummate the transactions contemplated
herein (other than the approval of the transactions contemplated
in this Agreement by a majority of the total votes cast by
holders of Richfood Common Stock at the Richfood Special Meeting
in accordance with Section 5(i) of Schedule D, Part III of the
By-Laws of the National Association of Securities Dealers, Inc.).
This Agreement and all of the other documents and instruments
required hereby have been or will be duly and validly executed
and delivered by Richfood and (assuming the due authorization,
execution and delivery hereof and thereof by Super Rite)
constitute or will constitute valid and binding agreements of
Richfood, enforceable against Richfood in accordance with their
respective terms.
Section 4.4. Consents and Approvals; No Violations.
Except for (i) any applicable requirements of the Securities Act,
the Exchange Act, the HSR Act and any applicable filings under
state securities, "Blue Sky" or takeover laws, (ii) the filing
and recordation of a certificate of merger as required by the
DGCL and (iii) those required filings, registrations, consents
and approvals listed on Exhibit 4.4 attached hereto, no filing or
registration with, and no permit, authorization, consent or
approval of, any public body or authority is necessary or
required in connection with the execution and delivery of this
Agreement by Richfood or for the consummation by Richfood of the
transactions contemplated by this Agreement. Assuming that all
filings, registrations, permits, authorizations, consents and
approvals contemplated by the immediately preceding sentence have
been duly made or obtained, neither the execution, delivery and
performance of this Agreement nor the consummation of the
transactions contemplated hereby by Richfood will (i) conflict
with or result in any breach of any provision of the Articles of
Incorporation, bylaws, partnership or joint venture agreements or
other organizational documents of any of the Richfood Companies,
(ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give
rise to any right of termination, cancellation or acceleration)
under, or otherwise result in any diminution of any of the rights
of the Richfood Companies with respect to, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, Contract or other instrument or obligation to which any
of the Richfood Companies is a party or by which it or any of
them or any of their properties or assets may be bound or (iii)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to any of the Richfood Companies or any of
their properties or assets except, in the case of subsections
(ii) or (iii) above, for violations, breaches or defaults that
would not have a Material Adverse Effect on the Richfood
Companies and that will not prevent or delay the consummation of
the transactions contemplated hereby.
Section 4.5. Reports. The Richfood SEC Reports complied,
as of their respective dates of filing, in all material respects
with all applicable requirements of the Securities Act, the
Exchange Act and the rules and regulations of the SEC. As of
their respective dates, none of such forms, reports or documents,
including without limitation any financial statements or
schedules included therein, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which
they were made. Each of the balance sheets (including the
related notes and schedules) included in the Richfood SEC Reports
and in the Richfood Fiscal 1995 Financial Statements fairly
presented the consolidated financial position of the Richfood
Companies as of the respective dates thereof, and the other
related financial statements (including the related notes and
schedules) included therein fairly presented the results of
operations and cash flows of the Richfood Companies for the
respective fiscal periods or as of the respective dates set forth
therein. Each of the financial statements (including the related
notes and schedules) included in the Richfood SEC Reports
complied as to form with the applicable accounting requirements
and rules and regulations of the SEC. Each of the financial
statements (including the related notes and schedules) included
in the Richfood SEC Reports and in the Richfood Fiscal 1995
Financial Statements was prepared in accordance with GAAP
consistently applied during the periods presented, except as
otherwise noted therein and subject to normal year-end and audit
adjustments in the case of any unaudited interim financial
statements. Except for Richfood, none of the Richfood Companies
is required to file any forms, reports or other documents with
the SEC, Nasdaq, the NYSE or any other foreign or domestic
securities exchange or Governmental Authority with jurisdiction
over securities laws. Since May 1, 1994, Richfood has timely
filed all reports, registration statements and other filings to
be filed by it with the SEC.
Section 4.6. Absence of Certain Events. Except as set
forth in the Richfood SEC Reports filed prior to the date of this
Agreement or in the Richfood Fiscal 1995 Financial Statements,
since April 29, 1995, none of the Richfood Companies has suffered
any change in its business, financial condition or results of
operations that has had or will have a Material Adverse Effect
upon the Richfood Companies. Except as disclosed in the Richfood
SEC Reports or in the Richfood Fiscal 1995 Financial Statements,
or as otherwise specifically contemplated by this Agreement,
there has not been since April 29, 1995: (i) any labor dispute
that has had or is expected to have a Material Adverse Effect
upon the Richfood Companies; (ii) any change in the accounting
policies or practices of Richfood; or (iii) any damage,
destruction or loss, whether covered by insurance or not, which
had or will have a Material Adverse Effect upon the Richfood
Companies.
Section 4.7. Joint Proxy Statement/Prospectus. None of
the information with respect to the Richfood Companies to be
included in the Joint Proxy Statement/Prospectus or the
Registration Statement will, in the case of the Joint Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, at the time of the mailing of the Joint Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, and at the time of the Richfood Special Meeting, or, in
the case of the Registration Statement, at the time it becomes
effective and at the Effective Time, contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading. The Joint Proxy Statement/Prospectus will comply
as to form in all material respects with the provisions of the
Securities Act and the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by
Richfood with respect to information supplied by Super Rite or
any affiliate of Super Rite for inclusion in the Joint Proxy
Statement/Prospectus.
Section 4.8. Litigation. There is no action, suit,
proceeding or, to the Knowledge of Richfood, investigation
pending or, to the Knowledge of Richfood, threatened against or
relating to any of the Richfood Companies at law or in equity, or
before any federal, state, provincial, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, whether in the United States or otherwise, that
is expected, in the reasonable judgment of Richfood, to have a
Material Adverse Effect upon the Richfood Companies or that seeks
restraint, prohibition, damages or other relief in connection
with this Agreement or the consummation of the transactions
contemplated hereby.
Section 4.9. Employee Benefit Plans.
(a) For purposes of this Section, the term "Richfood
Benefit Plans" shall mean all pension, retirement, profit-
sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus or other incentive
plans, and all other employee programs, arrangements or
agreements, whether arrived at through collective bargaining or
otherwise, all medical, vision, dental and other health plans,
all life insurance plans, and all other employee benefit plans or
fringe benefit plans, including, without limitation, any
"employee benefit plan," as that term is defined in Section 3(3)
of ERISA, currently adopted, maintained by, sponsored in whole or
in part by, or contributed to by any of the Richfood Companies or
affiliates thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other
beneficiaries and under which employees, retirees, dependents,
spouses, directors, independent contractors or other
beneficiaries are eligible to participate. Any of the Richfood
Benefit Plans that is an "employee pension benefit plan," as that
term is defined in Section 3(2) of ERISA, is referred to herein
as a "Richfood ERISA Plan."
(b) No Richfood Benefit Plan is a multiemployer plan within
the meaning of Section 3(37) of ERISA. All Richfood Benefit
Plans are in compliance with the applicable provisions
(including, without limitation, any funding requirements or
limitations) of ERISA, the Code and any other applicable Laws,
the breach or violation of which could have a Material Adverse
Effect on the Richfood Companies. Except as reflected in the
notes to the Richfood Fiscal 1995 Financial Statements, no
Richfood ERISA Plan which is a defined benefit pension plan has
any "unfunded current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value
of the assets of any such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of
ERISA, when determined under actuarial factors that would apply
if the plan terminated in accordance with all applicable legal
requirements.
Section 4.10. Tax Matters. Except as set forth on Exhibit
4.10:
(a) Richfood and each of its Subsidiaries that is
incorporated under the laws of the United States or of any of the
United States are members of the affiliated group, within the
meaning of Section 1504(a) of the Code, of which Richfood is the
common parent, and such affiliated group files a consolidated
federal income tax return;
(b) each of the Richfood Companies has timely filed or
caused to be filed all Tax Returns required to have been filed by
or for it, and all information set forth in such Tax Returns is
accurate and complete in all material respects;
(c) each of the Richfood Companies has paid or made
adequate provision on its books and records in accordance with
GAAP for all Taxes covered by such Tax Returns;
(d) there is not a material amount of unpaid Taxes due and
payable by any of the Richfood Companies or by any other person
that is or could become a lien on any asset of, or otherwise have
a Material Adverse Effect on, the Richfood Companies;
(e) each of the Richfood Companies has collected or
withheld all Taxes required to be collected or withheld by it,
and all such Taxes have been paid to the appropriate Governmental
Authority or set aside in appropriate accounts for future payment
when due;
(f) none of the Richfood Companies has granted (or is
subject to) any waiver, which is currently in effect, of the
period of limitations for the assessment of any Tax; no unpaid
Tax deficiency has been assessed or asserted against or with
respect to any of the Richfood Companies by any Governmental
Authority; there are no currently pending administrative or
judicial proceedings, or any deficiency or refund litigation,
with respect to Taxes of any of the Richfood Companies, the
adverse outcome of which would have a Material Adverse Effect on
the Richfood Companies; and any such assertion, assessment,
proceeding or litigation disclosed on Exhibit 4.10 hereto is
being contested in good faith through appropriate measures, and
its status is described in Exhibit 4.10 hereto; and
(g) the audited consolidated balance sheet included in the
Richfood Fiscal 1995 Financial Statements fully and properly
reflects, as of the date thereof, the liabilities of Richfood and
its Subsidiaries for all accrued Taxes and deferred liability for
Taxes and, for periods ending after such date, the books and
records of each such corporation fully and properly reflect its
liability for all accrued Taxes.
Section 4.11. Compliance with Law. The conduct of the
businesses of the Richfood Companies and their use of their
assets does not violate or conflict, and has not violated or
conflicted, with any Law, which violation or conflict could have
a Material Adverse Effect on the Richfood Companies.
Section 4.12. Fees and Expenses of Brokers and Others.
None of the Richfood Companies (a) has had any dealings, nego-
tiations or communications with any broker or other intermediary
in connection with the transactions contemplated by this Agree-
ment, (b) is committed to any liability for any brokers' or
finders' fees or any similar fees in connection with the
transactions contemplated by this Agreement or (c) has retained
any broker or other intermediary to act on its behalf in
connection with the transactions contemplated by this Agreement,
except that Richfood has engaged Wheat to represent it in
connection with such transactions and shall pay all of Wheat's
fees and expenses in connection with such engagement.
Section 4.13. Accuracy of Information. Neither this
Agreement nor any other document provided by the Richfood
Companies or their employees or agents to Super Rite in
connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein not
misleading.
Section 4.14. Absence of Undisclosed Liabilities. None of
the Richfood Companies have, as of the date hereof, or will have,
as of the Effective Time, any liabilities or obligations of any
kind, whether absolute, accrued, asserted or unasserted,
contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of Richfood prepared as of such
date in accordance with GAAP, except liabilities, obligations or
contingencies that were (a) reflected on or accrued or reserved
against in the consolidated balance sheet of Richfood as of April
29, 1995, that is included in the Richfood Fiscal 1995 Financial
Statements, or reflected in the notes thereto, or (b) incurred
after the date of such balance sheet in the ordinary course of
business and consistent with past practices and which,
individually or in the aggregate, will not have a Material
Adverse Effect on the Richfood Companies. None of the Richfood
Companies is a party to any Contract, or subject to any charter
or other corporate or partnership restriction, or subject to any
judgment, order, writ, injunction, decree, rule or regulation,
which will have a Material Adverse Effect on the Richfood
Companies.
Section 4.15. Opinion of Financial Advisor. Richfood has
received the opinion of Wheat to the effect that, as of June 26,
1995, the exchange ratio contemplated in the Plan of Merger is
fair to the holders of shares of Richfood Common Stock from a
financial point of view.
Section 4.16. Accounting Matters. To the Knowledge of
Richfood, neither Richfood nor any of its "affiliates" or
"associates" (as such terms are defined in Rule 12b-2 adopted
under the Exchange Act) has taken or agreed to take any action
that (without giving effect to any action taken or agreed to be
taken by Super Rite or any of its affiliates or associates) would
prevent Richfood from accounting for the business combination to
be effected in accordance herewith as a pooling of interests.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF SUPER RITE
Super Rite represents and warrants to Richfood as follows:
Section 5.1. Organization and Authority of the Super Rite
Companies. Each of the Super Rite Companies is duly organized,
validly existing and in good standing under the laws of its
respective jurisdiction of organization. Each of the Super Rite
Companies has full corporate or partnership power to carry on its
respective business as it is now being conducted and to own,
operate and hold under lease its assets and properties as, and in
the places where, such properties and assets now are owned,
operated or held. Each of the Super Rite Companies is duly
qualified as a foreign entity to do business, and is in good
standing, in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect on the Super Rite
Companies. Exhibit 1.38B constitutes a true and complete list of
all of the Subsidiaries of Super Rite, and Exhibit 1.26B
constitutes a true and complete list of all of the Partnerships
in which Super Rite has an interest. The copies of the Restated
Certificate of Incorporation and By-laws of Super Rite which have
been delivered to Richfood are complete and correct and in full
force and effect on the date hereof.
Section 5.2. Capitalization. Super Rite's authorized
equity capitalization consists of 30,000,000 shares of Super Rite
Common Stock, no par value, $.01 stated value per share, and
15,000,000 shares of preferred stock, $,01 par value per share.
As of the close of business on June 20, 1995, 9,572,510 shares of
Super Rite Common Stock and no shares of Super Rite preferred
stock were issued and outstanding. Such shares of Super Rite
Common Stock constituted all of the issued and outstanding shares
of capital stock of Super Rite as of such date. All issued and
outstanding shares of Super Rite Common Stock have been duly
authorized and validly issued and are fully paid and
nonassessable, are not subject to and have not been issued in
violation of any preemptive rights and have not been issued in
violation of any federal or state securities laws. All of the
outstanding shares of capital stock of Super Rite's Subsidiaries
are validly issued, fully paid and nonassessable and are, except
as disclosed on Exhibit 1.38B hereto, owned by Super Rite,
directly or indirectly, free and clear of all liens, claims,
charges or encumbrances. Except for the declaration and payment
of dividends in the ordinary course of business, Super Rite has
not, subsequent to March 4, 1995, declared or paid any dividend
on, or declared or made any distribution with respect to, or
authorized or effected any split-up or any other recapitalization
of, any of the Super Rite Common Stock, or directly or indirectly
redeemed, purchased or otherwise acquired any of its outstanding
capital stock or agreed to take any such action and will not take
any such action during the period between the date of this
Agreement and the Effective Time. Except as set forth on Exhibit
5.2 attached hereto, there are no outstanding options, warrants,
subscriptions or other rights to purchase or acquire any capital
stock of any of the Super Rite Companies, and there are no
Contracts pursuant to which any of the Super Rite Companies is
bound to sell or issue any shares of its capital stock. All
outstanding shares of Super Rite Common Stock are duly included
for trading on Nasdaq.
Section 5.3. Authority Relative to this Agreement. The
execution, delivery and performance of this Agreement and of all
of the other documents and instruments required hereby by Super
Rite are within the corporate power of Super Rite. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the
Board of Directors of Super Rite and no other corporate
proceedings on the part of Super Rite are necessary to authorize
this Agreement or to consummate the transactions contemplated
herein (other than, with respect to the Merger, the approval of
the Plan of Merger by a majority of the outstanding shares of
Super Rite Common Stock at the Super Rite Special Meeting). This
Agreement and all of the other documents and instruments required
hereby have been or will be duly and validly executed and
delivered by Super Rite and (assuming the due authorization,
execution and delivery hereof and thereof by Richfood) constitute
or will constitute valid and binding agreements of Super Rite,
enforceable against Super Rite in accordance with their
respective terms.
Section 5.4. Consents and Approvals; No Violations.
Except for (i) any applicable requirements of the Securities Act,
the Exchange Act, the HSR Act, and any applicable filings under
state securities, "Blue Sky" or takeover laws, (ii) the filing
and recordation of a certificate of merger as required by the
DGCL and (iii) those required filings, registrations, consents
and approvals listed on Exhibit 5.4 attached hereto, no filing or
registration with, and no permit, authorization, consent or
approval of, any public body or authority is necessary or
required in connection with the execution and delivery of this
Agreement by Super Rite or for the consummation by Super Rite of
the transactions contemplated by this Agreement. Assuming that
all filings, registrations, permits, authorizations, consents and
approvals contemplated by the immediately preceding sentence have
been duly made or obtained, neither the execution, delivery and
performance of this Agreement nor the consummation of the
transactions contemplated hereby by Super Rite will (i) conflict
with or result in any breach of any provision of the Certificates
of Incorporation, by-laws, partnership or joint venture
agreements or other organizational documents of any of the Super
Rite Companies, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation
or acceleration) under, or otherwise result in any diminution of
any of the rights of the Super Rite Companies with respect to,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, Contract or other instrument or
obligation to which any of the Super Rite Companies is a party or
by which it or any of them or any of their properties or assets
may be bound or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the
Super Rite Companies or any of their properties or assets except,
in the case of subsections (ii) or (iii) above, for violations,
breaches or defaults that would not have a Material Adverse
Effect on the Super Rite Companies and that will not prevent or
delay the consummation of the transactions contemplated hereby.
Section 5.5. Reports. The Super Rite SEC Reports
complied, as of their respective dates of filing, in all material
respects with all applicable requirements of the Securities Act,
the Exchange Act and the rules and regulations of the SEC. As of
their respective dates, none of such forms, reports or documents,
including without limitation any financial statements or
schedules included therein, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which
they were made. Each of the balance sheets (including the
related notes and schedules) included in the Super Rite SEC
Reports fairly presented the consolidated financial position of
the Super Rite Companies as of the respective dates thereof, and
the other related financial statements (including the related
notes and schedules) included therein fairly presented the
results of operations and cash flows of the Super Rite Companies
for the respective fiscal periods or as of the respective dates
set forth therein. Each of the financial statements (including
the related notes and schedules) included in the Super Rite SEC
Reports (i) complied as to form with the applicable accounting
requirements and rules and regulations of the SEC, and (ii) was
prepared in accordance with GAAP consistently applied during the
periods presented, except as otherwise noted therein and subject
to normal year-end and audit adjustments in the case of any
unaudited interim financial statements. Except for Super Rite,
none of the Super Rite Companies is required to file any forms,
reports or other documents with the SEC, Nasdaq, the NYSE or any
other foreign or domestic securities exchange or Governmental
Authority with jurisdiction over securities laws. Since May 1,
1994, Super Rite has timely filed all reports, registration
statements and other filings to be filed by it with the SEC.
Section 5.6. Absence of Certain Events. Except as set
forth in the Super Rite SEC Reports filed prior to the date of
this Agreement or as otherwise specifically disclosed in Exhibit
5.6 attached hereto, since March 4, 1995, none of the Super Rite
Companies has suffered any change in its business, financial
condition or results of operations that has had or will have a
Material Adverse Effect upon the Super Rite Companies. Except as
disclosed in the Super Rite SEC Reports or in Exhibit 5.6 hereto,
or as otherwise specifically contemplated by this Agreement,
there has not been since March 4, 1995: (i) any entry into any
agreement or understanding or any amendment of any agreement or
understanding between any of the Super Rite Companies on the one
hand, and any of their respective directors, officers or
employees on the other hand, providing for employment of any such
director, officer or employee or any general or material increase
in the compensation, severance or termination benefits payable or
to become payable by any of the Super Rite Companies to any of
their respective directors, officers or employees (except for
normal increases in the ordinary course of business that are
consistent with past practices and that, in the aggregate, do not
result in a material increase in benefits or compensation
expense), or any adoption of or increase in any bonus, insurance,
pension or other employee benefit plan, payment or arrangement
(including, without limitation, the granting of stock options or
stock appreciation rights or the award of restricted stock) made
to, for or with any such director, officer or employee; (ii) any
labor dispute that has had or is expected to have a Material
Adverse Effect upon the Super Rite Companies; (iii) any entry by
any of the Super Rite Companies into any material commitment,
agreement, license or transaction (including, without limitation,
any borrowing, capital expenditure, sale of assets or any
mortgage, pledge, lien or encumbrances made on any of the
properties or assets of any of the Super Rite Companies) other
than in the ordinary and usual course of business; (iv) any
change in the accounting policies or practices of Super Rite; (v)
any damage, destruction or loss, whether covered by insurance or
not, which has had or will have a Material Adverse Effect upon
the Super Rite Companies; or (vi) any agreement to do any of the
foregoing.
Section 5.7. Joint Proxy Statement/Prospectus. None of
the information with respect to the Super Rite Companies to be
included in the Joint Proxy Statement/Prospectus or the
Registration Statement will, in the case of the Joint Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, at the time of the mailing of the Joint Proxy
Statement/Prospectus or any amendments thereof or supplements
thereto, and at the time of the Super Rite Special Meeting, or,
in the case of the Registration Statement, at the time it becomes
effective and at the Effective Time, contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading. The Joint Proxy Statement/Prospectus will comply
as to form in all material respects with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by
Super Rite with respect to information supplied by Richfood or
any affiliate of Richfood for inclusion in the Joint Proxy
Statement/Prospectus.
Section 5.8. Litigation. Except as set forth in Exhibit
5.8 attached hereto, there is no action, suit, proceeding or, to
the Knowledge of Super Rite, investigation pending or, to the
Knowledge of Super Rite, threatened against or relating to any of
the Super Rite Companies at law or in equity, or before any
federal, state, provincial, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
whether in the United States or otherwise, that is expected, in
the reasonable judgment of Super Rite, to have a Material Adverse
Effect upon the Super Rite Companies or that seeks restraint,
prohibition, damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated
hereby.
Section 5.9. Title to and Sufficiency of Assets. As of
the date hereof the Super Rite Companies own, and as of the
Effective Time the Super Rite Companies will own, good and
marketable title to all of their assets (excluding, for purposes
of this sentence, assets held under leases), free and clear of
any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions, except
as disclosed on Exhibit 5.9 attached hereto. Such assets,
together with all assets held by the Super Rite Companies under
leases, include all tangible and intangible assets, Contracts and
rights necessary or required for the operation of the businesses
of the Super Rite Companies in accordance with past practice.
Section 5.10. Contracts. (a) Prior to the date hereof,
Super Rite has provided Richfood with access to true and correct
copies of all of the Contracts to which any Super Rite Company is
a party that constitute: (i) a lease of any interest in any real
property; (ii) a lease of any personal property with aggregate
annual rental payments in excess of $100,000; (iii) an option to
acquire or lease any interest in real property or a right of
first refusal with respect thereto; (iv) an agreement to purchase
or sell a capital asset or an interest in any business entity for
a price in excess of $100,000 or a right of first refusal with
respect thereto; (v) an agreement relating to the borrowing or
lending of money or the purchase or sale of securities; (vi) a
guaranty, contribution agreement or other agreement that includes
any indemnification, contribution or support obligation; (vii) an
agreement limiting in any respect the ability of any Super Rite
Company to compete in any line of business or with any person;
(viii) a customer supply or requirements agreement or an
agreement with a vendor to which any of the Super Rite Companies
is a party or by which any of the Super Rite Companies is bound;
(ix) an employment or consulting agreement to which any of the
Super Rite Companies is a party or by which any of the Super Rite
Companies is bound; and (ix) any other agreement involving an
amount over its term in excess of $100,000. The Super Rite
Companies have performed and, to the Knowledge of Super Rite,
every other party has performed, each material term, covenant and
condition of each of the Contracts to which any Super Rite
Company is a party that is to be performed by any of them at or
before the date hereof. No event has occurred that would, with
the passage of time or compliance with any applicable notice
requirements or both, constitute a default by any Super Rite
Company or, to the Knowledge of Super Rite, any other party under
any of the Contracts to which any Super Rite Company is a party,
and, to the Knowledge of Super Rite, no party to any of the
Contracts to which any Super Rite Company is a party intends to
cancel, terminate or exercise any option under any of such
Contracts.
(b) With respect to each customer supply or requirements
agreement and vendor agreement to which any of the Super Rite
Companies is a party, the copy of such agreement that has been
provided by Super Rite to Richfood accurately discloses: (i) the
remaining term of such agreement; (ii) all incentive or other
payments paid or to be paid thereunder by any Super Rite Company
after March 4, 1995; (iii) all purchase commitments or minimum
purchase guarantees binding on any of the Super Rite Companies
for periods after March 4, 1995; and (iv) any deviation in the
economic terms thereof from and after March 4, 1995, from those
that were in effect under such agreements (or under any similar
predecessor agreements) over the course of Super Rite's entire
fiscal year ended March 4, 1995.
Section 5.11. Labor Matters. (a) Except as set forth in
Exhibit 5.11 attached hereto, with respect to employees of the
Super Rite Companies: (i) to the Knowledge of Super Rite, no
senior executive, key employee or group of employees has any
plans to terminate employment with any of the Super Rite
Companies; (ii) there is no unfair labor practice charge or
complaint against any Super Rite Company pending or, to the
Knowledge of Super Rite, threatened before the National Labor
Relations Board or any other comparable authority; (iii) no
grievance or any arbitration proceeding arising out of or under
collective bargaining agreements is pending and, to the Knowledge
of Super Rite, no claims therefor exist or have been threatened;
and (iv) there is no litigation, arbitration proceeding,
governmental investigation, administrative charge, citation or
action of any kind pending or, to the Knowledge of Super Rite,
proposed or threatened against any Super Rite Company relating to
employment, employment practices, terms and conditions of
employment or wages and hours.
(b) Except as described in Exhibit 5.11 attached hereto, no
Super Rite Company has any collective bargaining relationship or
duty to bargain with any Labor Organization (as such term is
defined in Section 2(5) of the National Labor Relations Act, as
amended), and no Super Rite Company has recognized any Labor
Organization as the collective bargaining representative of any
of its employees.
Section 5.12. Employee Benefit Plans.
(a) For purposes of this Section, the term "Super Rite
Benefit Plans" shall mean all pension, retirement, profit-
sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus or other incentive
plans, and all other employee programs, arrangements or
agreements, whether arrived at through collective bargaining or
otherwise, all medical, vision, dental and other health plans,
all life insurance plans, and all other employee benefit plans or
fringe benefit plans, including, without limitation, any
"employee benefit plan," as that term is defined in Section 3(3)
of ERISA, currently adopted, maintained by, sponsored in whole or
in part by, or contributed to by any of the Super Rite Companies
or affiliates thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors or other
beneficiaries and under which employees, retirees, dependents,
spouses, directors, independent contractors, or other
beneficiaries are eligible to participate. Any of the Super Rite
Benefit Plans which is an "employee pension benefit plan," as
that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Super Rite ERISA Plan."
(b) Except as set forth on Exhibit 5.12 hereto, no Super
Rite Benefit Plan is or has been a multiemployer plan within the
meaning of Section 3(37) of ERISA. As to any multiemployer plan
set forth on Exhibit 5.12 hereto, prior to the date hereof Super
Rite has provided to Richfood a true and correct copy of any
estimate of the "withdrawal liability" that would arise if Super
Rite were to withdraw or cause a withdrawal from such plan that
is within the Knowledge of Super Rite. All Super Rite Benefit
Plans are in compliance with the applicable provisions
(including, without limitation, any funding requirements or
limitations) of ERISA, the Code and any other applicable Laws,
the breach or violation of which could have a Material Adverse
Effect on the Super Rite Companies. No Super Rite Benefit Plan
provides for post-retirement medical benefit obligations (without
regard to COBRA obligations). Except as set forth on Exhibit
5.12 hereto, no Super Rite ERISA Plan which is a defined benefit
pension plan has any "unfunded current liability," as that term
is defined in Section 302(d)(8)(A) of ERISA, and the present fair
market value of the assets of any such plan exceeds the plan's
"benefit liabilities," as that term is defined in Section
4001(a)(16) of ERISA, when determined under actuarial factors
that would apply if the plan terminated in accordance with all
applicable legal requirements.
(c) Exhibit 5.12 hereto is a true and correct list of all
Super Rite Benefit Plans. Super Rite has provided Richfood with
access to true and correct copies of each governing document for
each Super Rite Benefit Plan, together with the most recent
summary plan description, annual report and audited financial
statement for each such plan and the actuarial report for any
Super Rite Benefit Plan that is a defined benefit pension plan or
funded welfare benefit plan.
Section 5.13. Tax Matters.
(a) Except as set forth on Exhibit 5.13:
(1) Super Rite and each of its Subsidiaries that
is incorporated under the laws of the United States or of any of
the United States are members of the affiliated group, within the
meaning of Section 1504(a) of the Code, of which Super Rite is
the common parent, such affiliated group files a consolidated
federal income tax return and neither Super Rite nor any of its
Subsidiaries has ever filed a consolidated federal income tax
return with (or been included in a consolidated return of) a
different affiliated group;
(2) each of the Super Rite Companies has timely
filed or caused to be filed all Tax Returns required to have been
filed by or for it, and all information set forth in such Tax
returns is accurate and complete in all material respects;
(3) each of the Super Rite Companies has paid or
made adequate provision on its books and records in accordance
with GAAP for all Taxes covered by such Tax Returns;
(4) each of the Super Rite Companies is in
material compliance with, and its records contain all information
and documents (including, without limitation, properly completed
IRS Forms W-8 and Forms W-9) necessary to comply with, all
applicable information reporting and tax withholding requirements
under federal, state, local and foreign Laws, and such records
identify with specificity all accounts subject to withholding
under Section 1441, 1442 or 3406 of the Code or similar
provisions of state, local or foreign laws;
(5) there is not a material amount of unpaid
Taxes due and payable by any of the Super Rite Companies or by
any other person that is or could become a lien on any asset of,
or otherwise have a Material Adverse Effect on, the Super Rite
Companies;
(6) each of the Super Rite Companies has
collected or withheld all Taxes required to be collected or
withheld by it, and all such Taxes have been paid to the
appropriate Governmental Authority or set aside in appropriate
accounts for future payment when due;
(7) none of the Super Rite Companies has granted
(or is subject to) any waiver, which is currently in effect, of
the period of limitations for the assessment of any Tax; no
unpaid Tax deficiency has been assessed or asserted against or
with respect to any of the Super Rite Companies by any
Governmental Authority; no power of attorney relating to Taxes
that is currently in effect has been granted by or with respect
to any of the Super Rite Companies; there are no currently
pending administrative or judicial proceedings, or any deficiency
or refund litigation, with respect to Taxes of any of the Super
Rite Companies, the adverse outcome of which would have a
Material Adverse Effect on the Super Rite Companies; and any such
assertion, assessment, proceeding or litigation disclosed on
Exhibit 5.13 hereto is being contested in good faith through
appropriate measures, and its status is described in Exhibit 5.13
hereto;
(8) none of the Super Rite Companies has made or
entered into, or holds any asset subject to, a consent filed
pursuant to Section 341(f) of the Code and the regulations
thereunder or a "safe harbor lease" subject to former Section
168(f)(8) of the Code and the regulations thereunder;
(9) none of the Super Rite Companies is required
to include in income any amount from an adjustment pursuant to
Section 481 of the Code or the regulations thereunder or any
similar provision of state or local Law, and Super Rite has no
Knowledge that any Governmental Authority has proposed any such
adjustment;
(10) none of the Super Rite Companies is obligated
to make any payments, or is a party to any Contract that could
obligate it to make any payments, that would not be deductible by
reason of sections 162(m) or 280G of the Code;
(11) there are no excess loss accounts or deferred
intercompany gains with respect to any member of the affiliated
group of which Super Rite is the common parent which would have a
Material Adverse Effect on the Super Rite Companies if taken into
account; and
(12) the most recent audited consolidated balance
sheet included in the Super Rite SEC Reports fully and properly
reflects, as of the date thereof, the liabilities of Super Rite
and its Subsidiaries for all accrued Taxes and deferred liability
for Taxes and, for periods ending after such date, the books and
records of each such corporation fully and properly reflect its
liability for all accrued Taxes.
(b) Exhibit 5.13 describes all material and continuing Tax
elections, consents and agreements made by or affecting any of
the Super Rite Companies, lists all types of material Taxes paid
and Tax Returns filed by or on behalf of any of the Super Rite
Companies and expressly indicates each Tax with respect to which
any of the Super Rite Companies is or has been included in a
consolidated, unitary or combined return.
Section 5.14. Compliance with Law. The conduct of the
businesses of the Super Rite Companies and their use of their
assets does not violate or conflict, and has not violated or
conflicted, with any Law, which violation or conflict could have
a Material Adverse Effect on the Super Rite Companies.
Section 5.15. Transactions With Affiliates. For purposes
of this Section, the term "Affiliate" shall mean (a) any holder
of 5% or more of the voting securities of Super Rite, (b) any
director, officer or employee of the Super Rite Companies, (c)
any person, firm or corporation that directly or indirectly
controls, is controlled by or is under common control with any of
the Super Rite Companies or (d) any member of the immediate
family of any of such persons. Except as set forth in
Exhibit 5.15 attached hereto, since March 4, 1995, the Super Rite
Companies have not, in the ordinary course of business or
otherwise, (a) purchased, leased or otherwise acquired any
material property or assets or obtained any material services
from, (b) sold, leased or otherwise disposed of any material
property or assets or provided any material services to (except
with respect to remuneration for services rendered in the
ordinary course of business as a director, officer or employee of
one or more of the Super Rite Companies), (c) entered into or
modified in any manner any Contract with, or (d) borrowed any
money from, or made or forgiven any loan or other advance to, any
Affiliate. Except as set forth in Exhibit 5.15, (a) the
Contracts of the Super Rite Companies do not include any
obligation or commitment between any of the Super Rite Companies
and any Affiliate, (b) the assets of the Super Rite Companies do
not include any receivable or other obligation or commitment from
an Affiliate to any of the Super Rite Companies and (c) the
liabilities of the Super Rite Companies do not include any
payable or other obligation or commitment from any of the Super
Rite Companies to any Affiliate. To the Knowledge of Super Rite
and except as set forth in Exhibit 5.15 hereto, no Affiliate of
any of the Super Rite Companies is a party to any Contract with
any customer or supplier of Super Rite that affects in any manner
the business, financial condition or results of operation of any
of the Super Rite Companies.
Section 5.16. Fees and Expenses of Brokers and Others.
None of the Super Rite Companies (a) has had any dealings, nego-
tiations or communications with any broker or other intermediary
in connection with the transactions contemplated by this Agree-
ment, (b) is committed to any liability for any brokers' or
finders' fees or any similar fees in connection with the
transactions contemplated by this Agreement or (c) has retained
any broker or other intermediary to act on its behalf in
connection with the transactions contemplated by this Agreement,
except that Super Rite has engaged DLJ to represent it in
connection with such transactions, and shall pay all of DLJ's
fees and expenses in connection with such engagement.
Section 5.17. Accuracy of Information. Neither this
Agreement nor any other document provided by the Super Rite
Companies or their employees or agents to Richfood in connection
with the transactions contemplated herein contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not
misleading.
Section 5.18. Absence of Undisclosed Liabilities. None of
the Super Rite Companies have, as of the date hereof, or will
have, as of the Effective Time, any liabilities or obligations of
any kind, whether absolute, accrued, asserted or unasserted,
contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of Super Rite prepared as of such
date, in accordance with GAAP, except liabilities, obligations or
contingencies that were (a) reflected on or accrued or reserved
against in the consolidated balance sheet of Super Rite as of
March 4, 1995, included in the Super Rite SEC Reports or
reflected in the notes thereto, or (b) incurred after the date of
such balance sheet in the ordinary course of business and
consistent with past practices and which, individually or in the
aggregate, would not have a Material Adverse Effect on the Super
Rite Companies. None of the Super Rite Companies is a party to
any Contract, or subject to any charter or other corporate or
partnership restriction, or subject to any judgment, order, writ,
injunction, decree, rule or regulation, which will have a
Material Adverse Effect on the Super Rite Companies.
Section 5.19. Opinion of Financial Advisor. Super Rite has
received the opinion of DLJ to the effect that, as of June 26,
1995, the exchange ratio contemplated in the Plan of Merger is
fair to the holders of shares of Super Rite Common Stock from a
financial point of view.
Section 5.20. Accounting Matters. To the Knowledge of
Super Rite, neither Super Rite nor any of its "affiliates" or
"associates" (as such terms are defined in Rule 12b-2 adopted
under the Exchange Act) has taken or agreed to take any action
that (without giving effect to any action taken or agreed to be
taken by Richfood or any of its affiliates or associates) would
prevent Richfood from accounting for the business combination to
be effected in accordance herewith as a pooling of interests.
ARTICLE VI
COVENANTS
Section 6.1. Conduct of the Businesses of Richfood and
Super Rite.
(a) Except as otherwise expressly provided in this
Agreement, during the period from the date of this Agreement to
the Effective Time, the Super Rite Companies will conduct their
respective operations according to their ordinary and usual
course of business and consistent with past practice, and will
use their respective reasonable best efforts to preserve intact
their respective business organizations, to keep available the
services of their officers and employees and to maintain
satisfactory relationships with licensors, licensees, suppliers,
contractors, distributors, customers and others having material
business relationships with them. Without limiting the
generality of the foregoing, and except as otherwise expressly
provided in this Agreement, prior to the Effective Time, none of
the Super Rite Companies will, without the prior written consent
of Richfood:
(i) amend its Articles or Certificate of
Incorporation, bylaws, partnership or joint venture agreements or
other organizational documents;
(ii) authorize for issuance or issue, sell or deliver
(whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities or interests, except
as required by the terms of any Super Rite Benefit Plan existing
on the date hereof, or any options, warrants, rights or other
securities outstanding as of the date hereof and disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its
capital stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, or redeem
or otherwise acquire any of its securities or any securities of
their respective Subsidiaries and Partnerships, except that Super
Rite may declare and pay dividends in the ordinary course of
business consistent with its past practices;
(iv) except in the ordinary course of business (A)
incur or assume any Funded Debt (as defined below) not currently
outstanding, (B) assume, guarantee, endorse or otherwise become
liable or responsible for the obligations of any person, other
than a Subsidiary or Partnership, (C) make any loans, advances or
capital contributions to, or investments in, any other person
(other than customary loans or advances to employees and non-
affiliated retail grocery customers in accordance with past
practice), (D) enter into any Contract, or alter, amend, modify
or exercise any option under any existing Contract, other than in
the ordinary course of business or in connection with the
transactions contemplated by this Agreement or (E) authorize any
single capital expenditure which is in excess of $500,000 or
capital expenditures which are, in the aggregate, in excess of
$1.0 million, other than capital expenditures pursuant to
Contracts entered into prior to the date hereof or reflected in
Super Rite's fiscal 1996 capital budget previously furnished to
Richfood;
(v) adopt or amend (except as may be required by Law
or as provided in this Agreement) any bonus, profit sharing,
compensation, severance, termination, stock option, stock
appreciation right, restricted stock, pension, retirement,
deferred compensation, employment, severance or other employee
benefit agreements, trusts, plans, funds or other arrangements
for the benefit or welfare of any director, officer or employee,
or (except for normal increases in the ordinary course of
business that are consistent with past practices and that, in the
aggregate, do not result in a material increase in benefits or
compensation expense) increase in any manner the compensation or
fringe benefits of any director, officer or employee or pay any
benefit not required by any existing plan or arrangement
(including, without limitation, the granting of stock options,
stock appreciation rights, shares of restricted stock or
performance units) or enter into any Contract, agreement,
commitment or arrangement to do any of the foregoing;
(vi) acquire, sell, lease or dispose of any material
assets outside the ordinary course of business;
(vii) take any action other than in the ordinary
course of business and in a manner consistent with past practice
with respect to accounting policies or practices;
(viii) make any material Tax election or settle or
compromise any material federal, state, local or foreign income
Tax liability;
(ix) except for the payment of professional fees, pay,
discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction in
the ordinary course of business of liabilities reflected or
reserved against in Super Rite's fiscal 1995 financial statements
or incurred in the ordinary course of business since the date
thereof; or
(x) hold any meeting of its shareholders except to the
extent required by the request of the shareholders entitled to
call a meeting under Super Rite's bylaws or the DGCL;
(xi) take any action that would or is reasonably likely
to result in any of the conditions set forth in Article VII not
being satisfied as of the Closing Date; or
(xii) agree in writing or otherwise to take any of the
foregoing actions.
For purposes of this Section, "Funded Debt" shall mean,
without duplication, (i) all indebtedness for borrowed money or
which has been incurred in connection with the acquisition of
assets, in each case having a final maturity of one or more than
one year from the date of origin thereof (or which is renewable
or extendible at the option of the obligor for a period or
periods more than one year from the date of origin), but
excluding all payments in respect thereof that are required to be
made within one year from the date of any determination of Funded
Debt to the extent the obligation to make such payments shall
constitute a current liability of the obligor under GAAP, (ii)
all rentals payable under capitalized leases, and (iii) all
guaranties of Funded Debt of others.
(b) Except as otherwise expressly provided in this
Agreement, prior to the Effective Time, Richfood will not,
without the prior written consent of Super Rite:
(i) amend its Amended and Restated Articles of
Incorporation or Bylaws;
(ii) authorize for issuance or issue, sell or deliver
(whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities or interests, except
as required by the terms of any Richfood Benefit Plan existing on
the date hereof, or any options, warrants, rights or other
securities outstanding as of the date hereof and disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its
capital stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, except that
Richfood may declare and pay dividends in the ordinary course of
business consistent with its past practices;
(iv) take any action other than in the ordinary course
of business and in a manner consistent with past practice with
respect to accounting policies or practices;
(v) hold any meeting of its shareholders except to the
extent required by the request of the shareholders entitled to
call a meeting under Richfood's Bylaws or the Virginia Stock
Corporation Act;
(vi) take any action that would or is reasonably likely
to result in any of the conditions set forth in Article VII not
being satisfied as of the Closing Date; or
(vii) agree in writing or otherwise to take any of the
foregoing actions.
(c) Richfood and Super Rite agree that, during the period
from the date of this Agreement to the Effective Time: (i) they
will cause representatives of their respective companies to meet,
no less frequently than monthly, to discuss the operations and
business prospects of their companies; and (ii) Super Rite will
promptly advise Richfood of the occurrence of any Material
Adverse Effect with respect to the Super Rite Companies, and
Richfood will promptly advise Super Rite of the occurrence of any
Material Adverse Effect with respect to the Richfood Companies.
Section 6.2. No Solicitation. Super Rite agrees that it
shall not, after the date hereof and before the Effective Time,
directly or indirectly, through any officer, director, employee,
agent or otherwise, solicit, initiate or encourage submission of
proposals or offers from any person relating to any acquisition
or purchase of all or (other than in the ordinary course of
business) a substantial portion of the assets of, or any equity
interest in, any Super Rite Company or any business combination
involving any Super Rite Company or, except to the extent
required by fiduciary obligations under applicable Law as advised
by counsel, participate in any negotiations regarding, or furnish
to any other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other
person to do or seek any of the foregoing. Super Rite shall
promptly advise Richfood if any such proposal or offer, or any
inquiry or contact with any person with respect thereto, is made,
shall promptly inform Richfood of all the terms and conditions
thereof, and shall furnish to Richfood copies of any such written
proposal or offer and the contents of any communications in
response thereto. Super Rite shall not waive any provisions of
any "standstill" agreements between Super Rite and any party,
except to the extent that such waiver is, as advised by counsel,
required by fiduciary obligations under applicable Law.
Section 6.3. The Registration Statement; Listing.
(a) Super Rite and Richfood shall, as soon as practicable
following the execution of this Agreement, file with the SEC a
draft of the Joint Proxy Statement/Prospectus (in a form mutually
agreeable to Super Rite and Richfood) as preliminary proxy
materials under the Exchange Act, and shall seek confidential
treatment with respect thereto. Super Rite and Richfood shall
cooperate to respond promptly to any comments made by the SEC
with respect thereto.
(b) Upon resolution of any SEC comments with respect to the
draft Joint Proxy Statement/Prospectus, or at such other time as
may be mutually determined by the parties hereto, Richfood shall
file the Registration Statement (including the then-current draft
of the Joint Proxy Statement/Prospectus) with the SEC, and shall:
(i) after consultation with Super Rite, respond
promptly to any comments made by the SEC with respect thereto;
provided, however, that Richfood will not file any amendment or
supplement to the Registration Statement without first furnishing
to Super Rite a copy thereof for its review and will not file any
such proposed amendment or supplement to which Super Rite
reasonably and promptly objects;
(ii) use its best efforts to cause the Registration
Statement to become effective under the Securities Act as soon as
practicable, and Richfood and Super Rite shall cause the Joint
Proxy Statement/Prospectus to be mailed to their respective
shareholders at the earliest practicable time after effectiveness
of the Registration Statement;
(iii) cause the registration or qualification of the
Richfood Common Stock to be issued upon conversion of shares of
Super Rite Common Stock in accordance with the Plan of Merger
under the state securities or "Blue Sky" laws of each state of
residence of a record holder of Super Rite Common Stock as
reflected in its stock transfer ledger;
(iv) promptly advise Super Rite (A) when the
Registration Statement becomes effective, (B) when, prior to the
Effective Time, any amendment to the Registration Statement shall
be filed or become effective, (C) of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (D) of the receipt by Richfood of any
notification with respect to the suspension of the registration
or qualification of Richfood Common Stock for sale in any
jurisdiction or the institution or threatening of any proceeding
for that purpose;
(v) use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof; and
(vi) use its best efforts to cause the shares of
Richfood Common Stock to be issued upon conversion of shares of
Super Rite Common Stock in accordance with the Plan of Merger to
be approved for inclusion upon notice of issuance in Nasdaq.
If, at any time when the Joint Proxy Statement/Prospectus is
required to be delivered under the Securities Act or the Exchange
Act, any event occurs as a result of which the Joint Proxy
Statement/Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Joint Proxy
Statement/Prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder, Super Rite and
Richfood will cooperate to permit Richfood promptly to prepare
and file with the SEC, subject to clause (a) of this Section 6.3,
an amendment or supplement that will correct such statement or
omission or effect such compliance.
Section 6.4. Access to Information; Confidentiality
Agreement.
(a) Between the date of this Agreement and the Effective
Time, the parties hereto will give one another and their
authorized representatives reasonable access during normal
business hours to all plants, offices, warehouses and other
facilities and to all books and records of one another, will
permit one another to make such inspections as each may
reasonably request and will cause their officers and those of
their Subsidiaries and Partnerships to furnish such financial and
operating data and other information with respect to their
businesses and properties as may from time to time reasonably be
requested. Subject to Section 6.7 hereof, all such information
shall be kept confidential in accordance with the Confidentiality
Agreement.
(b) Notwithstanding the execution of this Agreement, the
Confidentiality Agreement shall remain in full force and effect
through the Effective Time, at which time the Confidentiality
Agreement shall terminate and be of no further force and effect.
Each party hereto hereby waives the provisions of the
Confidentiality Agreement as and to the extent necessary to
permit the solicitation of votes of the shareholders of Richfood
and Super Rite pursuant to the Joint Proxy Statement/Prospectus
and to permit consummation of the transactions contemplated
hereby. Each party further acknowledges that the Confidentiality
Agreement shall survive any termination of this Agreement
pursuant to Section 8.1 hereof.
Section 6.5. Best Efforts. Subject to the terms and
conditions herein provided and subject to fiduciary obligations
under applicable Law as advised by counsel, each of the parties
hereto agrees to use its best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things
necessary, proper and advisable under applicable Law, to
consummate and make effective the transactions contemplated by
this Agreement. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of
each party to this Agreement shall take all such necessary
action. Richfood and Super Rite will execute any additional
instruments necessary to consummate the transactions contemplated
hereby.
Section 6.6. Consents. Super Rite and Richfood each will
use its best efforts to obtain consents of all third parties and
governmental authorities necessary to the consummation of the
transactions contemplated by this Agreement.
Section 6.7. Public Announcements. The parties hereto
have agreed upon the text of a joint press release announcing,
among other things, the execution of this Agreement, which joint
press release shall be disseminated promptly following the
execution hereof. Super Rite and Richfood will consult with each
other before issuing any additional press release or otherwise
making any additional public statement with respect to this
Agreement, the Plan of Merger, the Merger or the transactions
contemplated herein and shall not issue any such press release or
make any such public statement prior to such consultation or as
to which the other party promptly and reasonably objects, except
as may be required by Law in the written opinion of such party's
counsel or by obligations pursuant to any listing agreement with
any national securities exchange or inter-dealer quotation
system, in which case the party proposing to issue such press
release or make such public announcement shall use its best
efforts to consult in good faith with the other party before
issuing any such press release or making any such public
announcements.
Section 6.8. Certain Leases. Super Rite hereby agrees
that, prior to the Effective Time, it shall enter into amendments
of certain leases identified on Exhibit 6.8 hereof in accordance
with the terms set forth on Exhibit 6.8 hereof, the form of which
amendments shall be reasonably acceptable to Richfood. Richfood
agrees that at the Closing it shall execute a guaranty with
respect to Super Rite's obligations under such leases, as so
amended, which guaranty shall be in a form mutually agreeable to
the parties hereto.
Section 6.9. Affiliates. Super Rite shall use its best
efforts to cause each principal executive officer, each director
and each other person who may be deemed to be an "affiliate," for
purposes of Rule 145 under the Securities Act, of Super Rite to
deliver to Richfood at or prior to the Effective Time a written
agreement (substantially in the form of Exhibit 6.9 attached
hereto) to the effect that such person will not offer to sell,
sell or otherwise dispose of any shares of Richfood Common Stock
issued in the Merger, except, in each case, pursuant to an
effective registration statement or in compliance with Rule 145,
as amended from time to time, or in a transaction which, in the
opinion of legal counsel satisfactory to Richfood, is exempt from
the registration requirements of the Securities Act and, in any
case, until after the results covering 30 days of post-Merger
combined operations of Super Rite and Richfood have been filed
with the SEC, sent to shareholders of Richfood or otherwise
publicly issued. Richfood hereby agrees that it shall file with
the SEC, send to its shareholders or otherwise publicly issue
capsule financial data covering 30 days of post-Merger combined
operations of Super Rite and Richfood as soon as practical after
the completion of such 30 day period.
Section 6.10. Stock Options. (a) Super Rite has advised
Richfood, and hereby confirms, that the applicable instruments
governing all outstanding options to purchase shares of Super
Rite Common Stock (each a "Super Rite Stock Option") provide for
both the acceleration of the exercisability of each such option
in connection with the transactions contemplated herein, and the
cancellation of each such option as of the Effective Time in
exchange for a cash payment calculated in accordance with the
applicable option agreement (the "Option Cash-out"). The parties
hereto have agreed that the Board of Directors of Super Rite
shall adopt, and, if necessary, shall recommend to its
shareholders for adoption, an amendment to all such governing
instruments to (i) confirm the acceleration of the exercisability
of each such option in connection with the transactions
contemplated herein, (ii) eliminate the Option Cash-out, and
instead provide that each such option (as so accelerated) shall
remain exercisable (on the terms provided below) subject to the
original expiration provisions thereof, and (iii) require
Richfood to assume all obligations of Super Rite under such
applicable governing instruments. In connection therewith, at
the Effective Time, to the extent permitted by the terms of the
relevant governing instruments, each Super Rite Stock Option,
whether vested or unvested, shall be assumed by Richfood. Unless
Super Rite and Richfood shall otherwise agree, each such Super
Rite Stock Option shall be deemed to constitute an option to
acquire, on the same terms and conditions as were applicable
under such Super Rite Stock Option, the same number of shares of
Richfood Common Stock as the holder of such Super Rite Stock
Option would have been entitled to receive pursuant to the Plan
of Merger had such holder exercised such option in full
immediately prior to the Effective Time (rounded up to the
nearest whole share in the case of Super Rite Stock Options that
are non-qualified stock options and rounded down to the nearest
whole share in the case of incentive stock options (as defined
below)), at a price per share equal to (i) the per share exercise
price for the shares of Super Rite Common Stock purchasable
pursuant to such Super Rite Stock Option, divided by (ii) 1.0205;
provided, however, that in the case of any option to which
section 421 of the Code applies by reason of its qualification
under any of section 422-424 of the Code ("incentive stock
options"), the option price, the number of shares purchasable
pursuant to such option and the terms and conditions of exercise
of such option shall be determined in order to comply with
section 424(a) of the Code, subject to the terms and conditions
of the relevant governing instruments.
(b) As soon as practicable after the Effective Time,
Richfood shall file a registration statement on Form S-3 or Form
S-8, as the case may be (or any successor or other appropriate
forms) with respect to the shares of Richfood Common Stock
subject to such options and shall use its best efforts to
maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the
prospectus or prospectuses contained therein) for so long as such
options remain outstanding. Richfood shall administer the option
plans assumed pursuant to this Section 6.10 in a manner that
complies with Rule 16b-3 promulgated under the Exchange Act to
extent the option plans complied with such rule prior to the
Merger.
Section 6.11. Letter of Super Rite's Accountants. Super
Rite shall use its best efforts to obtain a letter of Coopers &
Lybrand L.L.P., dated a date within two business days before the
date on which the Registration Statement shall become effective
and addressed to Super Rite, in form and substance reasonably
satisfactory to Richfood and Super Rite and customary in scope
and substance for agreed-upon procedures letters delivered by
independent public accountants in connection with registration
statements similar to the Registration Statement.
Section 6.12. Letter of Richfood's Accountants. Richfood
shall use its best efforts to obtain a letter of KPMG Peat
Marwick LLP, dated a date within two business days before the
date on which the Registration Statement shall become effective
and addressed to Richfood, in form and substance reasonably
satisfactory to Super Rite and Richfood and customary in scope
and substance for agreed-upon procedures letters delivered by
independent public accountants in connection with registration
statements similar to the Registration Statement.
Section 6.13. Opinions of Financial Advisors. Each of
Super Rite and Richfood shall use its best efforts to cause DLJ
and Wheat, respectively, to provide its opinion, as of a date no
earlier than three business days prior to the date that the Joint
Proxy Statement/Prospectus is mailed to shareholders of Super
Rite and Richfood, as to the fairness of the exchange ratio
contemplated in the Plan of Merger to the shareholders of Super
Rite and Richfood, respectively, from a financial point of view,
as contemplated by this Agreement, and shall include such updated
opinions in the Joint Proxy Statement/Prospectus.
Section 6.14. Registration Rights.
(a) Upon the receipt of a written notice within a period of
one (1) year after the Closing Date from any of those persons
identified on Exhibit 6.14 attached hereto or any trustee holding
shares for the benefit of such person (the "Super Rite Group")
requesting Richfood in writing to register under the Securities
Act shares of Richfood Common Stock held by such persons that
represent at least 25% of the shares of Richfood Common Stock
received by members of the Super Rite Group in the Merger,
Richfood shall promptly notify all other members of the Super
Rite Group in writing of the receipt of such request and any
member of the Super Rite Group may elect (by written notice sent
to Richfood within ten business days from the date of such
member's receipt of the aforementioned notice from Richfood) to
have any or all of his shares of Richfood Common Stock included
in such registration pursuant to this Section 6.14 (such
shareholders, together with any shareholders exercising
registration rights pursuant to Section 6.14(c) hereof, being
hereinafter referred to as "Selling Shareholders"); provided,
however, that the aggregate number of shares included in such
registration shall not exceed the aggregate number of shares
received by the members of the Super Rite Group in the Merger,
less the aggregate number of shares as to which members of the
Super Rite Group have previously exercised registration rights
pursuant to this Section.
(b) As expeditiously as possible, Richfood will use its
reasonable best efforts to cause the offering of all shares
designated in such request(s) (the "Shares") to be registered
under the Securities Act so as to permit the proposed sale;
provided, that (i) the Shares with respect to which such public
offering has been requested are reasonably anticipated to have an
aggregate price to the public in excess of $25 million, (ii)
Richfood and the Selling Shareholders are entitled to register
the Shares on Form S-3 (or a successor form) or would be eligible
to use such form but for the failure by Richfood to timely file
all reports required to be filed by it under the Exchange Act,
and (iii) Richfood has not commenced or completed within the
previous three months an underwritten public offering.
(c) For a period of one (1) year after the Closing Date, if
Richfood shall at any time propose to file on its own behalf
and/or the behalf of any other shareholders a registration
statement under the Securities Act for an offering of Richfood
Common Stock solely for cash on a form that would also permit
registration of shares of Richfood Common Stock held by members
of the Super Rite Group, Richfood shall give notice of such
proposed registration to each member of the Super Rite Group as
promptly as possible, but in any event, at least forty-five (45)
days before the initial filing with the SEC of such registration
statement, which notice shall set forth the intended method of
disposition of the shares proposed to be registered by Richfood.
The notice shall offer to include in such filing the aggregate
number of shares of Richfood Common Stock as the Selling
Shareholders may request (not to exceed the aggregate number of
shares received by members of the Super Rite Group in the Merger,
less the number of shares as to which members of the Super Rite
Group have previously exercised registration rights pursuant to
this Section), subject to this Section 6.14(c). Each member of
the Super Rite Group desiring to have Richfood Common Stock
registered under this Section 6.14(c) shall advise Richfood in
writing within ten business days after the date of notice of such
offer from Richfood, setting forth the amount of such Richfood
Common Stock for which registration is requested. Richfood shall
thereupon include in such filing the number of shares of Richfood
Common Stock for which registration is so requested, subject to
the provisions of Section 6.14(c)(i)-(iv), and shall use its best
efforts to effect registration under the Securities Act of such
shares. Notwithstanding the foregoing: (i) Richfood shall not be
required to give notice or to include shares in any such
registration if the proposed registration is primarily (A) a
registration of a dividend reinvestment, stock option, employee
benefit or compensation plan or of securities issued or issuable
pursuant to any such plan, or (B) a registration of securities
proposed to be issued in exchange for securities or assets of, or
in connection with a merger or consolidation with, another
entity; (ii) if Richfood is advised in writing by its
underwriters that the inclusion of all or any portion of such
shares would in their reasonable opinion jeopardize the success
of the proposed offering, Richfood may exclude all or such
portion of such shares from registration; (iii) the offering of
such shares by the Selling Shareholders shall be on the same
terms as the offering by Richfood; (iv) in the event other
parties have similar registration rights at the time of the
offering, the number of shares to be registered may be limited by
Richfood pursuant to clause (ii) of this Section 6.14(c) on a pro
rata basis according to the total amount of shares owned by such
parties or on such other basis as may be agreed upon by such
parties; provided, that no limitation shall apply to shares
offered by Richfood for its own account; (v) Richfood may,
without the consent of the Selling Shareholders, withdraw such
registration statement and abandon the proposed offering in which
such persons had requested to participate; and (vi) Richfood
shall be under no obligation to any Selling Shareholder pursuant
to this Section 6.14(c) unless such persons accept the terms of
underwriting agreed upon by Richfood and its underwriters.
(d) If Richfood is required by the provisions of this
Section 6.14 to use its best efforts to effect the registration
of any of its securities under the Securities Act, Richfood will,
as expeditiously as possible:
(i) prepare and file with the SEC a registration
statement with respect to the Shares and use its best efforts to
cause such registration statement to become and remain effective
for a period of time (not to exceed 180 days) required for the
disposition of the Shares by the Selling Shareholders;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the Securities Act with respect to the sale or
other disposition of all Shares covered by such registration
statement until the earlier of such time as all of such Shares
have been disposed of in a public offering or the expiration of
180 days;
(iii) furnish to the Selling Shareholders such number
of copies of a summary prospectus or other prospectus, including
a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents, as such Selling
Shareholders may reasonably request;
(iv) use its best efforts to register or qualify the
securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions within
the United States and Puerto Rico as each Selling Shareholder
shall request (provided, however, that Richfood shall not be
obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not then
qualified or to file any general consent to service of process),
and do such other reasonable acts and things as may be required
of it to enable such Selling Shareholder to consummate the
disposition in such jurisdiction of the Shares covered by such
registration statement;
(v) furnish, at the request of any Selling
Shareholder: (1) an opinion, dated the date of the closing, of
counsel representing Richfood for the purposes of such
registration, addressed to the underwriters and the Selling
Shareholders, or if the Shares are not being sold through
underwriters, then to the Selling Shareholders making such
request, in each case, customary for the type of offering and
including, without limitation, that the registration statement,
the related prospectus, and each amendment or supplement thereto,
comply as to form in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of
the SEC thereunder; and (2) a letter, dated the date of the
closing, from the independent certified public accountants of
Richfood, addressed to the underwriters, or if such Shares are
not being sold through underwriters, then to Richfood and, if
feasible, to the Selling Shareholders making such request,
substantially to the effect that they are independent certified
public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial
statements and other financial data of Richfood included in the
registration statement or the prospectus, or any amendment or
supplement thereto, comply as to form in all material respects
with the applicable accounting requirements of the Securities
Act. Such opinion of counsel shall additionally cover such other
legal matters with respect to the registration as the
underwriters and the Selling Shareholders may reasonably request.
Such letter from the independent certified public accountants
shall additionally cover such other financial matters (including
information as to the period ending not more than five (5)
business days prior to the date of such letter) with respect to
the registration in respect of which such letter is being given
as the underwriters and the Selling Shareholders may reasonably
request; and
(vi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available
to its shareholders, as soon as reasonably practicable, but not
later than 18 months after the effective date of the registration
statement, an earning statement covering the period of at least
12 months beginning with the first full month after the effective
date of such registration statement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities
Act.
(e) The obligations of Richfood under this Section 6.14 are
subject to the following terms and limitations:
(i) Richfood shall be entitled to postpone for up to
three months in any 12-month period the filing of any
registration statement otherwise required to be prepared and
filed by it pursuant to Section 6.14(a) hereof if, at the time it
receives a request for such registration, its Board of Directors
determines, in its reasonable good faith judgment, that such
registration and sale would materially interfere with any
financing, acquisition, corporate reorganization or other
material transaction involving Richfood then under consideration
or would otherwise be detrimental to Richfood and its
shareholders; provided, however, that the one year period
contemplated by Section 6.14(a) shall be tolled at any time when
Richfood has postponed a registration pursuant to this paragraph
or is excused from registering Shares pursuant to Section
6.14(b)(iii) hereof (unless, in the case of such Section
6.14(b)(iii), Richfood has notified the members of the Super Rite
Group in writing that Richfood will waive the application of such
Section with respect to the subject underwritten public
offering);
(ii) in the event of a request for registration under
Section 6.14(a) hereof, sales shall be made through a nationally
recognized investment banking firm selected by Richfood which
shall act as managing underwriter;
(iii) Richfood shall pay all fees and expenses
associated with the first registration and offering of shares for
the benefit of members of the Super Rite Group pursuant to
Section 6.14(a) (including, without limitation, all SEC and state
"Blue Sky" filing fees, all fees and expenses of Richfood's
counsel and accountants, all underwriting fees, commissions and
expenses, all printing and mailing fees, and the fees and
expenses of counsel for the underwriters, if applicable
(collectively, "Registration Expenses"), but excluding the fees
and expenses of any counsel or accountants retained by any member
of the Super Rite Group in connection with such registration and
offering); provided, however, that in the event of a registration
under Section 6.14(a) hereof, Richfood shall not be obligated to
pay the costs related to the preparation of any audited financial
statements included in any registration statement required to be
prepared and filed by it pursuant to Section 6.14(a) hereof as of
any date other than the Saturday nearest to April 30 (or the end
of its fiscal year, if other than the Saturday nearest to
April 30), or for any audited financial statements for any period
of less than 12 months or ending on any date other than the
Saturday nearest to April 30 (or the end of its fiscal year, if
other than the Saturday nearest to April 30). For all other
registrations and offerings of shares pursuant to this Section
6.14, the selling Super Rite Group shareholders shall pay, on a
pro rata basis, all Registration Expenses and other costs and
expenses associated with such registrations and offerings;
(iv) Richfood shall not be obligated to provide more
than a total of two registrations pursuant to Section 6.14(a) and
Section 6.14(c) hereof; provided, that in the event any shares
are excluded in an initial registration pursuant to Section
6.14(c) or in the event such registration is withdrawn or
abandoned by Richfood, the Super Rite Group shareholders shall
have additional registration rights pursuant to such subsection
until such time as the shares originally proposed to be
registered thereunder have been registered pursuant to this
Section;
(v) Richfood, the Selling Shareholders and any
underwriter of an offering pursuant to any registration statement
provided for in this Section shall have entered into an
underwriting agreement or other agreement containing provisions
with respect to the indemnification of the aforementioned parties
in connection with the preparation and use of such registration
statement in form and substance reasonably satisfactory to
Richfood and any such underwriter; and
(vi) it shall be a condition precedent to the
obligations of Richfood under this Section 6.14 that the Selling
Shareholders shall furnish to Richfood such information regarding
the Selling Shareholders, the shares proposed to be sold and the
intended method of disposition of such securities as Richfood
shall reasonably request.
(f) The registration rights provided herein may not be
assigned, by operation of law or otherwise, to any other person;
provided, however, that such registration rights may be assigned
to the transferee of any shares of Richfood Common Stock received
by a member of the Super Rite Group in the Merger (i) if such
transfer occurs by will or pursuant to the laws of descent and
distribution, or (ii) if the transferee is a member of the
immediate family of any member of the Super Rite Group or is a
trust for the benefit of any such persons.
Section 6.15. Indemnification; Insurance. (a) Except as
may be limited by applicable Law, from the Effective Time and for
a period of three (3) years thereafter, Richfood shall cause
Super Rite to maintain all rights of indemnification existing in
favor of the directors and officers of Super Rite on terms no
less favorable than those provided in the certificate of
incorporation and by-laws of Super Rite on the date of this
Agreement with respect to matters occurring prior to the
Effective Time.
(b) Richfood shall cause to be maintained in effect for
three (3) years from the Effective Time the current policies for
directors' and officers' liability insurance maintained by Super
Rite (provided that Richfood may substitute therefor policies of
at least the same coverage containing terms and conditions that
are not materially less advantageous) with respect to matters
occurring prior to the Effective Time, to the extent such
insurance is available to Richfood in the market.
ARTICLE VII
CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER
Section 7.1. Conditions Precedent to Each Party's
Obligation to Effect the Merger. The respective obligation of
each party to consummate the Merger is subject to the
satisfaction at or prior to the Effective Time of the following
conditions precedent:
(a) the transactions contemplated in this Agreement shall
have been approved by the affirmative vote of the shareholders of
Richfood by the requisite vote in accordance with Richfood's
Nasdaq listing agreement;
(b) the transactions contemplated in this Agreement shall
have been approved, and the Plan of Merger shall have been
adopted, by the affirmative vote of the shareholders of Super
Rite by the requisite vote in accordance with the DGCL;
(c) no order, decree or injunction shall have been enacted,
entered, promulgated or enforced by any United States court of
competent jurisdiction or any United States governmental
authority which prohibits the consummation of the Merger;
provided, however, that the parties hereto shall use their best
efforts to have any such order, decree or injunction vacated or
reversed;
(d) the Registration Statement shall have become effective
in accordance with the provisions of the Securities Act, and no
stop order suspending such effectiveness shall have been issued
and remain in effect;
(e) any waiting period applicable to the Merger under the
HSR Act shall have terminated or expired, all applicable
requirements of the Exchange Act shall have been satisfied and
any applicable filings under state securities, "Blue Sky" or
takeover laws shall have been made;
(f) the receipt by the parties hereto, based on customary
assumptions and on representations set forth in certificates of
officers of Richfood and Super Rite, of the opinion of Hunton &
Williams and the opinion of Neuberger, Quinn, Gielen, Rubin &
Gibber, P.A. (each dated the date of the Effective Time) to the
effect that, for United States federal income tax purposes,
(i) the Merger will constitute a "reorganization" under
Section 368(a) of the Code, (ii) no gain or loss will be
recognized by Richfood, Merger Subsidiary or Super Rite upon
consummation of the Merger, (iii) no gain or loss will be
recognized by shareholders of Super Rite upon the exchange of
shares of Super Rite Common Stock solely for shares of Richfood
Common Stock (including any fractional share interest) in the
Merger, (iv) the aggregate basis of shares of Richfood Common
Stock (including any fractional share interest) received by a
Super Rite shareholder in the Merger will be the same as the
aggregate basis of the shares of Super Rite Common Stock
exchanged therefor, (v) the holding period for shares of Richfood
Common Stock (including any fractional share interest) received
by a Super Rite shareholder in the Merger will include the
holding period for the shares of Super Rite Common Stock
exchanged thereof, if such shares of Super Rite Common Stock are
held as a capital asset at the Effective Time and (vi) cash
received in lieu of a fractional share of Richfood Common Stock
will be treated as having been received as full payment in
exchange for such fractional share;
(g) the shares of Richfood Common Stock required to be
issued hereunder shall have been approved for inclusion in Nasdaq
subject to official notice of issuance;
(h) Super Rite and Richfood shall have received a letter
from each of Coopers & Lybrand L.L.P. and KPMG Peat Marwick LLP,
dated the Effective Time, addressed to and in form and substance
reasonably satisfactory to Super Rite and Richfood, stating that
the Merger will qualify as a "pooling of interests" transaction
under GAAP;
(i) the receipt of all necessary and material governmental,
regulatory, shareholder and third party lender, customer or other
clearances, consents, licenses or approvals; and
(j) the last sale price for Richfood Common Stock, as
reported on Nasdaq for the last full day on which the Richfood
Common Stock is traded on Nasdaq prior to the Closing Date, shall
not be less than $18.33.
Section 7.2. Conditions Precedent to Obligations of Super
Rite. The obligations of Super Rite to consummate the Merger are
subject to the satisfaction or waiver at or prior to the
Effective Time of the following conditions precedent:
(a) there shall have occurred no material adverse change in
the business, financial condition or results of operations of the
Richfood Companies, taken as a whole, from the date hereof to the
Effective Time;
(b) the representations and warranties of Richfood
contained in Article IV shall be true and correct in all material
respects when made and at and as of the Effective Time with the
same force and effect as if those representations and warranties
had been made at and as of such time except (i) to the extent
such representations and warranties speak as of a specified
earlier date, and (ii) as otherwise contemplated or permitted by
this Agreement;
(c) Richfood shall, in all material respects, have
performed all obligations and complied with all covenants
necessary to be performed or complied with by it on or before the
Effective Time;
(d) Super Rite shall have received a certificate of the
Chairman, President or Executive Vice President of Richfood, in
form satisfactory to counsel for Super Rite, certifying
fulfillment of the matters referred to in paragraphs (a) through
(c) of this Section 7.2;
(e) Super Rite shall have received a satisfactory opinion
from DLJ as to the fairness of the exchange ratio contemplated in
the Plan of Merger, from a financial point of view, to the
shareholders of Super Rite;
(f) all proceedings, corporate or other, to be taken by
Richfood in connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to Super Rite and
Super Rite's counsel, and Richfood shall have made available to
Super Rite for examination the originals or true and correct
copies of all documents that Super Rite may reasonably request in
connection with the transactions contemplated by this Agreement;
and
(g) Super Rite shall have received the opinion of Hunton &
Williams, counsel for Richfood, dated the Effective Time, with
respect to such matters as Super Rite may reasonably request.
Section 7.3. Conditions Precedent to Obligations of
Richfood. The obligations of Richfood to consummate the Merger
are subject to the satisfaction or waiver at or prior to the
Effective Time of the following conditions precedent:
(a) there shall have occurred no material adverse change in
the business, financial condition or results of operations of the
Super Rite Companies, taken as a whole, from the date hereof to
the Effective Time;
(b) the representations and warranties of Super Rite
contained in Article V shall be true and correct in all material
respects when made and at and as of the Effective Time with the
same force and effect as if those representations and warranties
had been made at and as of such time except (i) to the extent
such representations and warranties speak as of a specified
earlier date, and (ii) as otherwise contemplated or permitted by
this Agreement;
(c) Super Rite shall, in all material respects, have
performed all obligations and complied with all covenants
necessary to be performed or complied with by it on or before the
Effective Time;
(d) Super Rite's consolidated Funded Debt (as defined in
Section 6.1(a) hereof) shall not exceed $109.0 million;
(e) Richfood shall have received a certificate of the
Chairman, President or Executive Vice President of Super Rite, in
form satisfactory to counsel for Richfood, certifying fulfillment
of the matters referred to in paragraphs (a) through (d) of this
Section 7.3;
(f) Richfood shall have received a satisfactory opinion
from Wheat as to the fairness of the exchange ratio contemplated
in the Plan of Merger, from a financial point of view, to the
shareholders of Richfood;
(g) Richfood shall receive consulting and non-competition
agreements in the form of Exhibit 7.3 hereto from those persons
specified therein;
(h) all proceedings, corporate or other, to be taken by
Super Rite in connection with the transactions contemplated by
this Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to Richfood and
Richfood's counsel, and Super Rite shall have made available to
Richfood for examination the originals or true and correct copies
of all documents that Richfood may reasonably request in
connection with the transactions contemplated by this Agreement;
(i) Richfood shall have received the opinion of Neuberger,
Quinn, Gielen, Rubin & Gibber, P.A., counsel for Super Rite,
dated the Effective Time, with respect to such matters as
Richfood may reasonably request; and
(j) Richfood shall have received from each person specified
in Section 6.9 hereof the written agreement referred to in such
Section 6.9.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
Section 8.1. Termination. This Agreement may be
terminated and the Merger contemplated hereby may be abandoned at
any time notwithstanding approval thereof by the respective
shareholders of Super Rite and Richfood, but prior to the
Effective Time:
(a) by mutual written consent of Super Rite and Richfood;
(b) by Super Rite or Richfood, if the Effective Time shall
not have occurred on or before December 31, 1995 (provided that
the right to terminate this Agreement under this Section 8.1(b)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or has
resulted in the failure of the Effective Time to occur on or
before such date);
(c) by Super Rite if (i) the transactions contemplated in
this Agreement shall have been voted on by holders of Richfood
Common Stock at a meeting duly convened therefor, and the votes
shall not have been sufficient to satisfy the condition set forth
in Section 7.1(a) hereof, (ii) there has been a material breach
by Richfood of any representation, warranty, covenant or
agreement set forth in this Agreement or the Plan of Merger,
which breach has not been cured within ten business days
following receipt by the breaching party of notice of such
breach; or (iii) the Board of Directors of Richfood should fail
to recommend to its shareholders approval of the transactions
contemplated by this Agreement or such recommendation shall have
been made and subsequently withdrawn;
(d) by Richfood if (i) the transactions contemplated in
this Agreement and the Plan of Merger shall have been voted on by
holders of Super Rite Common Stock at a meeting duly convened
therefor, and the votes shall not have been sufficient to satisfy
the condition set forth in Section 7.1(b) hereof, (ii) there has
been a material breach by Super Rite of any representation,
warranty, covenant or agreement set forth in this Agreement or
the Plan of Merger, which breach has not been cured within ten
business days following receipt by the breaching party of notice
of such breach; or (iii) the Board of Directors of Super Rite
should fail to recommend to its shareholders approval of the
transactions contemplated by this Agreement and the Plan of
Merger or such recommendation shall have been made and
subsequently withdrawn;
(e) by Super Rite if, prior to the Effective Time, a
corporation, partnership, person or other entity or group shall
have made a bona fide proposal with respect to the acquisition of
all of Super Rite's outstanding capital stock, or all or
substantially all of Super Rite's assets, that the Board of
Directors of Super Rite believes, in good faith after
consultation with its financial advisors, is more favorable, from
a financial point of view, to the shareholders of Super Rite than
the proposal set forth in this Agreement and the Plan of Merger
(a "Superior Proposal"); provided, that Richfood does not make,
within five business days of receiving notice of such third party
proposal, an offer that the Board of Directors of Super Rite
believes, in good faith after consultation with its financial
advisors, is at least as favorable, from a financial point of
view, to Super Rite's shareholders as such Superior Proposal; or
(f) by Super Rite or Richfood, if any court of competent
jurisdiction in the United States or other United States
Governmental Authority shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or
otherwise prohibiting the Mergers and such order, decree, ruling
or other action shall have become final and nonappealable.
Section 8.2. Effect of Termination. If this Agreement is
so terminated and the Merger is not consummated, this Agreement
shall forthwith become void and have no effect, without any
liability on the part of either party or its directors, officers
or shareholders, other than the provisions of Section 6.4(b),
this Section 8.2, Section 8.3 and Section 9.10.
Section 8.3. Termination Fee.
(a) If this Agreement is terminated (i) by Richfood
pursuant to Section 8.1(b) hereof, and the failure of the
Effective Time to occur has been caused by or is attributable to
any failure by Super Rite to fulfill any of its obligations under
this Agreement, (ii) by Richfood pursuant to Section 8.1(d)(i) or
(iii) hereof, (iii) by Richfood pursuant to Section 8.1(d)(ii)
hereof and the subject breach existed as of the date hereof, (iv)
by Richfood pursuant to Section 8.1(d)(ii) hereof and the subject
breach occurs after the date hereof, unless the facts and
circumstances giving rise to such breach are outside of the
reasonable control of the Super Rite Companies and their
Affiliates, or (v) by Super Rite pursuant to Section 8.1(e)
hereof, or if the condition contained in Section 7.3(j) hereof is
not satisfied prior to the Effective Time, and if Super Rite is
not entitled to terminate this Agreement by reason of Section
8.1(c) hereof, then Super Rite shall promptly (and in any event
within two days of receipt by Super Rite of written notice from
Richfood) pay to Richfood (by wire transfer of immediately
available funds to an account designated by Richfood) a
termination fee of $7.5 million.
(b) If this Agreement is terminated by Super Rite (i)
pursuant to Section 8.1(b) hereof, and the failure of the
Effective Time to occur has been caused by or is attributable to
any failure by Richfood to fulfill any of its obligations under
this Agreement, (ii) pursuant to Section 8.1(c)(i) or (iii)
hereof, (iii) pursuant to Section 8.1(c)(ii) hereof and the
subject breach existed as of the date hereof, or (iv) pursuant to
Section 8.1(c)(ii) hereof and the subject breach occurs after the
date hereof, unless the facts and circumstances giving rise to
such breach are outside of the reasonable control of the Richfood
Companies and their Affiliates, and if Richfood is not otherwise
entitled to terminate this Agreement, then Super Rite will be
entitled to pursue its remedies at law or in equity against
Richfood; provided, however, the parties hereto agree that Super
Rite shall only be entitled to recover in any such proceeding its
proven actual damages, not to exceed $7.5 million.
(c) If this Agreement is terminated by Richfood pursuant to
Section 8.1(d)(ii) hereof, or by Super Rite pursuant to Section
8.1(c)(ii) hereof, in either case as a result of a breach of any
representation, warranty, covenant or agreement by the other
party hereto, which breach was not willful or knowing in nature,
and if the breaching party is not otherwise entitled to terminate
this Agreement, then the breaching party shall promptly reimburse
the non-breaching party that has terminated this Agreement for
all out-of-pocket expenses (including all fees and expenses of
its counsel, advisors, accountants and consultants) incurred by
such non-breaching party or on its behalf in connection with the
transactions contemplated in this Agreement.
(d) This Section 8.3 shall be the sole remedy of the
parties hereto in the event of any termination of this Agreement.
Section 8.4. Amendment. This Agreement and the Plan of
Merger may be amended by action taken by both Richfood and Super
Rite at any time before or after approval of the transactions
contemplated herein by the respective shareholders of Richfood
and Super Rite but, after any such approval, no amendment shall
be made that would have any of the effects specified in DGCL
Section 251(d) without the approval of the shareholders affected
thereby. This Agreement may not be amended except by an
instrument in writing signed on behalf of both of the parties
hereto.
Section 8.5. Extension; Waiver. At any time prior to the
Effective Time, either party hereto may (i) extend the time for
the performance of any of the obligations or other acts of the
other party hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto by the
other party hereto or (iii) waive compliance with any of the
agreements or conditions contained herein by the other party
hereto. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Survival of Representations and Warranties.
The representations and warranties made herein shall not survive
beyond the Effective Time.
Section 9.2. Brokerage Fees and Commissions. No broker,
finder or investment banker (other than DLJ, whose fees shall be
paid by Super Rite) is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of Super Rite; and no broker, finder or investment
banker (other than Wheat, whose fees shall be paid by Richfood)
is entitled to any brokerage, finder's or other fee or commission
in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Richfood.
Section 9.3. Entire Agreement; Assignment. This Agreement
(a) constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes, except as
set forth in Section 6.4(b) hereof, all other prior agreements
and understandings, both written and oral, between the parties or
any of them with respect to the subject matter hereof, and (b)
shall not be assigned by operation of law or otherwise.
Section 9.4. Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given
upon receipt) by delivery in person, by cable, telecopy, telegram
or telex, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties as follows:
if to Richfood:
Richfood Holdings, Inc.
2000 Richfood Road
Mechanicsville, Virginia 23211
Attention: Donald D. Bennett
Chairman & Chief
Executive Officer
with a copy to:
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
Attention: Gary E. Thompson, Esq.
if to Super Rite:
Super Rite Corporation
P. O. Box 2261
Harrisburg, Pennsylvania 17105
Attention: Alex Grass
Chairman & Chief
Executive Officer
with copies to:
Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202
Attention: Isaac M. Neuberger, Esq.
or to such other address as the person to whom notice is given
may have previously furnished to the others in writing in the
manner set forth above.
Section 9.5. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Virginia regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws
thereof.
Section 9.6. Descriptive Headings. The descriptive
headings herein are inserted for convenience of reference only
and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section 9.7. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason
of this Agreement; provided, however, that each person who is a
party to a letter in the form of Exhibit 6.9 hereto shall be
entitled to rely upon, and shall be a third-party beneficiary of
Richfood's agreement set forth in, the final sentence of Section
6.9 hereof; and provided, further, that each member of the Super
Rite Group shall be entitled to rely upon, and shall be a third-
party beneficiary of Richfood's agreements set forth in, Section
6.14 hereof.
Section 9.8. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same
agreement.
Section 9.9. Specific Performance. The parties hereto
agree that irreparable damage would occur in the event any of the
provisions of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any
other remedy at law or equity.
Section 9.10. Fees and Expenses. All costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expenses, whether or not the Merger is consummated, except that
the expenses incurred in connection with printing and mailing the
Joint Proxy Statement/Prospectus and printing the Registration
Statement, and the filing fees related to the Registration
Statement, shall be shared equally by the parties hereto.
Section 9.11. Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any manner adverse to either party. Upon such determination
that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner, to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be duly executed on its behalf by its officers
thereunto duly authorized, all as of the day and year first above
written.
RICHFOOD HOLDINGS, INC.
By: /s/ Donald D. Bennett
Donald D. Bennett
Chairman & Chief
Executive Officer
SUPER RITE CORPORATION
By: /s/ Alex Grass
Alex Grass
Chairman & Chief
Executive Officer
