Exhibit (5)
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (this "Agreement"), dated as May 10, 1999, among
ShopKo Stores, Inc., a Wisconsin corporation ("Parent"), ShopKo Merger Corp., a
Delaware corporation and a wholly owned subsidiary of Parent ("Purchaser"), and
the undersigned stockholder (the "Stockholder") of Pamida Holdings Corporation,
a Delaware corporation (the "Company").
WHEREAS, Parent, Purchaser and the Company, propose to enter into an
Agreement and Plan of Merger dated as of even date herewith (as the same may be
amended or supplemented, the "Merger Agreement") to provide for the making of a
cash tender offer (as such offer may be amended from time to time, the "Offer")
by Purchaser for any and all shares of Common Stock, par value $0.01 per share,
of the Company (the "Shares") at the Offer Price (as defined in the Merger
Agreement) and the merger of the Company and Purchaser (the "Merger");
WHEREAS, the Stockholder legally and/or beneficially owns that number
of Shares appearing on the signature page hereof (such shares, as they may be
adjusted by any stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company (each, an "Adjustment Event") being referred to
herein as the "Subject Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have requested that the Stockholder enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and Purchaser as follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation
of the Stockholder enforceable in accordance with its terms. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will
not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Stockholder or to the Stockholder's property
or assets.
Except for informational filings with the SEC, no consent, approval, order
or authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental authority
or instrumentality, domestic, foreign or supranational, is required by or
with respect to the Stockholder in connection with the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby.
(b) The Shares. The Stockholder has good and marketable title to the
Subject Shares, free and clear of any claims, liens, encumbrances and
security interests whatsoever. The Stockholder owns no Shares other than
the Subject Shares and owns no shares of Nonvoting Common Stock, par value
$0.01 per share, of the Company.
2. Representations and Warranties of Parent and Purchaser.
(a) Authority. Parent and Purchaser hereby represent and warrant to
the Stockholder that each of Parent and Purchaser has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Parent and Purchaser, and the consummation of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of Parent and Purchaser. This
Agreement has been duly executed and delivered by Parent and Purchaser and
constitutes a valid and binding obligation of Parent and Purchaser
enforceable in accordance with its terms.
3. Covenants of the Stockholder. The Stockholder agrees as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the approval of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company or any other Takeover Proposal or (ii) any amendment of the
Company's certificate of incorporation or by-laws or other proposal or
transaction involving the Company or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate,
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prevent or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of, or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
sale, transfer, pledge, assignment or other disposition of, the Subject
Shares to any person other than Purchaser or Purchaser's designee or (ii)
enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, in connection, directly or indirectly, with any Takeover
Proposal.
(d) The Stockholder shall not, nor shall the Stockholder permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or encourage
the submission of, any Takeover Proposal or (ii) directly or indirectly
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Takeover Proposal, or (iii)
enter into any agreement with respect to or approve or recommend any
Takeover Proposal.
(e) So long as the Merger Agreement has not been terminated, the
Stockholder shall tender pursuant to the Offer, and not withdraw, all of
the Subject Shares at the request of Purchaser if the Stockholder's tender
is required to enable Purchaser to (i) satisfy the Minimum Condition under
the Merger Agreement or (ii) acquire 90 percent of the outstanding Shares.
4. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Purchaser
may assign any or all of its rights, interests and obligations hereunder, in its
sole discretion, to Parent or, with the consent of the Stockholder, which
consent shall not be unreasonably withheld or delayed, to any direct or indirect
wholly owned subsidiary of Parent. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns and, in the case of the
Stockholder, the heirs, executors and administrators of the Stockholder.
5. Termination. This Agreement shall terminate upon the earliest of
the following events (each a "Termination Event"):
(a) the Effective Time;
(b) the termination of the Merger Agreement pursuant to Section 8.01
thereof, other than:
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(i) a termination under Section 8.01(d) thereof because of the
withdrawal, modification or change in the recommendation by the Board
(as defined in the Merger Agreement) of the Offer, the Merger and the
Merger Agreement, as provided in paragraph f(i) of Annex A to the
Merger Agreement, or because the Board has adopted a resolution to
effect any of the foregoing, as provided in paragraph f(iii) of Annex
A to the Merger Agreement, if prior to the time of such withdrawal,
modification or change or the adoption of such resolution, a Takeover
Proposal (as defined in the Merger Agreement) shall have been made
(other than a Takeover Proposal made prior to the date hereof); or
(ii) a termination of the Merger Agreement if the Merger
Agreement is terminated under Section 8.01(d) thereof because of the
Board's recommendation of a Takeover Proposal, as provided in
paragraph f(ii) of Annex A to the Merger Agreement, or because the
Board has adopted a resolution to effect such recommendation, as
provided in paragraph f(iii) of Annex A to the Merger Agreement; or
(iii) a termination of the Merger Agreement under Section 8.01(e)
thereof (the termination described in clauses (i), (ii) and (iii)
being referred to herein as the "Termination Trigger Events");
(c) 60 days following any termination of the Merger Agreement that
constitutes a Termination Trigger Event or the occurrence of an event
described in paragraph (g) of Annex A to the Merger Agreement; or
(d) the amendment of the Merger Agreement in a manner adverse to the
Stockholder without the Stockholder's consent, which consent shall not be
unreasonably withheld or delayed.
6. General Provisions.
(a) Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
(b) Specific Performance. The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate
and irreparable harm or injury would be caused for which money damages
would not be an adequate remedy. Accordingly, each party agrees that, in
addition to other remedies, the other party shall be entitled to an
injunction restraining any violation or threatened violation of the
provisions of this Agreement. In the event that any action should be
brought in equity to enforce the provisions of the Agreement, neither party
will allege, and each party hereby waives the
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defense, that there is an adequate remedy at law. Each party hereby
irrevocably submits to the exclusive jurisdiction of the Delaware Chancery
Court in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such courts (and waives any objection based on forum non
conveniens or any other objection to venue therein). Each party hereto
waives any right to a trial by jury in connection with any such action,
suit or proceeding.
(c) Notice. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, by
recognized national delivery service or sent by certified or registered
mail, postage prepaid, and shall be deemed to be given upon receipt at the
following address, or to such other address or addresses as such person may
subsequently designate by notice given hereunder:
(a) if to Parent, to:
ShopKo Stores, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy (which shall
not constitute notice) to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(b) if to Purchaser, to:
ShopKo Merger Corp.
c/o ShopKo Stores, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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with a copy (which shall
not constitute notice) to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(c) if to Stockholder, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Pamida Holdings Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy (which shall
not constitute notice) to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(d) Parties in Interest. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective
successors and assigns. Nothing in this Agreement, expressed or implied, is
intended to confer upon any Person other than Parent, Purchaser or the
Stockholder, or their permitted successors or assigns, any rights or
remedies under or by reason of this Agreement.
(e) Entire Agreement; Amendments; Waiver. This Agreement constitutes
the entire agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to the
subject matter hereof. This Agreement may be amended by the parties hereto
and the terms and conditions hereof may be waived only by an instrument in
writing signed on behalf of each of the parties hereto, or, in the case of
a waiver, by an instrument signed on behalf of the party waiving
compliance.
(f) 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.
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(g) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same instrument.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state.
(i) Capitalized Terms. Capitalized terms not otherwise defined in
this Agreement shall have the meanings set forth in the Merger Agreement.
(j) Severability. Each party agrees that, should any court or other
competent authority hold any provision of this Agreement or part hereof to
be null, void or unenforceable, or order any party to take any action
inconsistent herewith or not to take an action consistent herewith or
required hereby, the validity, legality and enforceability of the remaining
provisions and obligations contained or set forth herein shall not in any
way be affected or impaired thereby, unless the foregoing inconsistent
action or the failure to take an action constitutes a material breach of
this Agreement or makes the Agreement impossible to perform in which case
this Agreement shall terminate. Except as otherwise contemplated by this
Agreement, to the extent that a party hereto took an action inconsistent
herewith or failed to take action consistent herewith or required hereby
pursuant to an order or judgment of a court or other competent authority,
such party shall incur no liability or obligation unless such party did not
in good faith seek to resist or object to the imposition or entering of
such order or judgment.
7. No Limitations on Actions of the Stockholder as a Director, Officer or
Employee. Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement is intended or shall be construed to require the Stockholder to
take or in any way limit any action that the Stockholder may take to discharge
the Stockholder's duties as a director, officer or employee of the Company,
including fiduciary duties.
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IN WITNESS WHEREOF, each of Parent, Purchaser and the Stockholder has
caused this Agreement to be signed by its officer thereunto duly authorized and
the Stockholder has signed this Agreement, all as of the date first written
above.
SHOPKO STORES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
SHOPKO MERGER CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
STOCKHOLDER
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Number of Shares owned by the Stockholder on the date
hereof:
65,798
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Number of Shares that can be acquired by the
Stockholder upon exercise of options held by the
Stockholder on the date hereof:
82,124
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