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EXHIBIT 2.4
VOTING AGREEMENT
This Voting Agreement (the "Agreement") dated as of October
26, 2000 between Flowers Industries, Inc., a Georgia corporation ("TULIP"), and
Xxxxxxx Company, a Delaware corporation ("Parent").
WHEREAS, Keebler Foods Company, a Delaware corporation
("Elf"), Parent and FK Acquisition Corp., a Delaware corporation ("Merger
Subsidiary") are concurrently with the execution and delivery of this Agreement
entering into an Agreement and Plan of Merger (the "Elf Merger Agreement")
pursuant to which Merger Subsidiary will merge with and into Elf (the "Elf
Merger") on the terms and conditions set forth therein;
WHEREAS, TULIP is concurrently with the execution and delivery
of the Elf Merger Agreement hereby agreeing to approve and adopt the Elf Merger
Agreement and the Elf Merger as the owner of the Shares (as defined below) by
Written Consent (as defined below); and
WHEREAS, in order to induce Parent to enter into the Elf
Merger Agreement, Parent has requested TULIP, and TULIP has agreed, to enter
into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used and not defined
herein shall have the meaning assigned to such terms in the Elf Merger
Agreement.
SECTION 2. Agreement to Vote. TULIP irrevocably agrees to vote
all Shares pursuant to an action by written consent (the "Written Consent"), to
be taken as promptly as permissible under applicable Law (which shall be the
21st day after that date on which the Elf Information Statement is mailed to the
Elf stockholders in accordance with Section 6.02 of the Elf Merger Agreement),
(a) in favor of the adoption of the Elf Merger Agreement and each of the
transactions contemplated thereby, including the Elf Merger and (b) against (i)
any proposal made in opposition to or in competition with the Elf Merger and the
Elf Merger Agreement and the transactions contemplated by the Elf Merger
Agreement, (ii) any merger, reorganization, consolidation, share exchange,
business combination, sale of assets, recapitalization, liquidation, winding up,
extraordinary dividend or distribution, significant share repurchase or other
similar transaction with or involving Elf and any party other than Parent, or
(iii) any other action the consummation of which would reasonably be expected to
impede, frustrate, interfere with, impair, delay or prevent consummation of the
transactions contemplated by the Elf Merger Agreement. The obligation of TULIP
specified in this Section 2 shall apply whether or not the Board of Directors of
Elf makes an Adverse Recommendation Change. In furtherance of this Section 2 and
as security for the agreements set forth herein, TULIP has granted a proxy to
Parent pursuant to Section 3.
SECTION 3. Irrevocable Proxy.
(a) In furtherance of the agreements contained in Section
2 hereof and as security for such agreements, TULIP hereby irrevocable grants
to, and appoints, Xxxxxx X.
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Xxxxxxxxx, Chairman and Chief Executive Officer of Parent, and Xxxxx X. Xxxxx,
Executive Vice President - Corporate Development, General Counsel and Secretary
(Xx. Xxxxxxxxx and Xx. Xxxxx, the "Grantees") in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, TULIP's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of TULIP, to vote all Shares Beneficially Owned by TULIP, or grant a
consent or approval in respect of such Shares, or execute and deliver a proxy to
vote such Shares, (i) in favor of the adoption of the Elf Merger and the Elf
Merger Agreement and approval of the terms thereof and each of the other
transactions contemplated by the Elf Merger Agreement; provided that the
Grantees shall not have authority to grant any such consent prior to 21 calendar
days after the Elf Information Statement is distributed to Elf's stockholders,
(ii) against any Takeover Proposal or any other matter referred to in Section
2(b) hereof, except as otherwise specified in Section 2 hereof and (iii) in the
discretion of the Grantees, with respect to any proposed postponements or
adjournments of any annual or special meeting of the stockholders of Elf.
(b) TULIP represents and warrants to Parent that any
proxies heretofore given in respect of any or all of its Shares are not
irrevocable, and that any such proxies are hereby revoked, except for the
Written Consent.
(c) TULIP hereby affirms that the irrevocable proxy set
forth in this Section 3 is given in connection with, and in consideration of,
the execution of the Elf Merger Agreement by Parent, and that such irrevocable
proxy is given to secure the performance of the duties of TULIP under this
Agreement. TULIP hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances by revoked. TULIP hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. The irrevocable proxy contained herein is intended
to be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware Law.
SECTION 4. Representations and Warranties of TULIP. TULIP
hereby represents and warrants to Parent that:
(a) Ownership of Shares. TULIP is the sole Beneficial
Owner, and sole owner of record, of 46,197,466 shares (the "Shares") of common
stock, $0.01 par value per share, of Elf. TULIP has good and marketable title to
the Shares, free and clear of any Lien and free of any other limitation or
restriction (including any restriction on the right to vote or otherwise dispose
of the Shares). TULIP has, and will have at any time from the date hereof until
the date that Section 2 is no longer in effect, sole voting power, sole power of
disposition and sole power to issue instructions with respect to the matters set
forth in Section 2 hereof with no limitations, qualifications or restrictions on
such rights. Without limiting the foregoing, none of the Shares is subject to
any voting trust or other agreement, proxy (except for the Written Consent and
as provided in Section 3 hereof) or other arrangement with respect to the voting
of such Shares. From and after the date hereof, TULIP will not commit or omit to
take any action if such action or omission could restrict or otherwise affect
TULIP's legal power, authority and right to vote all the Shares as provided in
Section 2 hereof or (ii) affect the validity or effectiveness of the Written
Consent. Without limiting the foregoing, from and after the date hereof, TULIP
will not enter into any voting agreement with any Person with respect to any of
the Shares, grant any Person any proxy (revocable or irrevocable) or
power-of-attorney with respect
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to any of the Shares, deposit any of the Shares in a voting trust or otherwise
enter into any agreement or arrangement limiting or affecting TULIP's legal
power, authority or right to vote the Shares as provided in Section 2 hereof.
Except for the Shares, TULIP does not Beneficially Own any (x) shares of capital
stock or voting securities of Elf, (y) securities of Elf convertible into or
exchangeable for shares of capital stock or voting securities of Elf or (z)
options or other rights to acquire from Elf any capital stock, voting securities
or securities convertible into or exchangeable for capital stock or voting
securities of Elf. "Beneficially Owned" or "Beneficial Ownership" with respect
to any securities means having beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 under the 1934 Act, disregarding the phrase
"within 60 days" in paragraph (d)(1)(i) thereof), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom such Person would
constitute a "Group" within the meaning of Section 13(d) of the 1934 Act and the
rules promulgated thereunder. "Beneficial Owner" with respect to any securities
means a Person that has Beneficial Ownership of such securities.
(b) Corporate Authorization. The execution, delivery and
performance by TULIP of this Agreement and the consummation by TULIP of the
transactions contemplated hereby are within TULIP's corporate powers and have
been duly authorized by all necessary corporate action on the part of TULIP.
This Agreement has been duly executed and delivered by TULIP and constitutes a
valid and binding Agreement of TULIP, enforceable against it in accordance with
its terms.
(c) Non-Contravention. The action to be taken in the
Written Consent and the execution, delivery and performance by TULIP of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) contravene, conflict with, or result in any violation or breach
of any provision of the articles of incorporation or bylaws of TULIP or Elf,
(ii) contravene, conflict with, or result in any violation or breach of any
applicable law, rule, regulation, judgment, injunction, order or decree, (iii)
require any consent by any Person under, constitute (with or without notice or
lapse of time or both) a default under, or cause or permit the termination,
cancellation or acceleration or other change of any right or obligation or the
loss of any benefit to which TULIP is entitled under any provision of any
agreement or other instrument binding on TULIP.
(d) Opinion of Financial Advisors. TULIP has received an
opinion of each of UBS Warburg LLC and Xxxxxx Xxxxxxx & Co. Incorporated, each
dated as of the date of this Agreement and each to the effect that, as of the
date of such opinion, the Merger Consideration to be received by TULIP's
shareholders under the Agreement and Plan of Restructuring and Merger dated as
of October 26, 2000 among TULIP, Parent and Merger Subsidiary (the "TULIP Merger
Agreement) is fair from a financial point of view to Tulip's stockholders.
Complete and correct signed copies of such opinions will be delivered to Parent
as soon as practicable after the date of this Agreement.
(e) Parent's Reliance. TULIP understands and acknowledges
that Parent is entering into the TULIP Merger Agreement and the Elf Merger
Agreement in reliance upon TULIP's execution, delivery and performance of this
Agreement. TULIP acknowledges that the
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Written Consent to be delivered and the proxy granted in Section 3 hereof is
granted in consideration of the execution and delivery of the TULIP Merger
Agreement and the Elf Merger Agreement by Parent.
SECTION 5. TULIP Covenant as to the Shares. TULIP shall not,
without the prior written consent of Parent, directly or indirectly (a) except
for the Written Consent, the agreement to vote pursuant to Section 2 hereof and
the proxy granted under Section 3 hereof, each of which are contemplated by the
Elf Merger Agreement and the TULIP Merger Agreement, grant any proxies or enter
into any voting trust or other agreement or arrangement with respect to the
voting of any Shares or (b) acquire, sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect acquisition or sale,
assignment, transfer, encumbrance or other disposition of, any Shares during the
term of this Agreement.
SECTION 6. No Solicitation. TULIP shall not, nor shall it
permit any of its Subsidiaries to, or authorize or permit any director, officer
or employee of TULIP or any of its Subsidiaries or any investment banker,
attorney, accountant or other advisor or representative of TULIP or any of its
Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate or
encourage, or take any other action knowingly to facilitate, any Takeover
Proposal or (ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or otherwise cooperate in any way with, any Takeover Proposal,
in each case other than a Takeover Proposal made by Parent, except as required
to comply with fiduciary duties under Delaware law. TULIP will immediately cease
all existing activities, discussions and negotiations with any parties conducted
heretofore with respect to any Takeover Proposal and request the return of all
confidential information regarding TULIP or Elf provided to any such parties
prior to the date hereof pursuant to the terms of any confidentiality agreements
or otherwise.
SECTION 7. Third Party Standstill Agreements; Rights
Agreement. (a) During the period from the date of this Agreement until the
termination of this Agreement, TULIP shall not terminate, amend, modify or waive
any provision of any confidentiality or standstill agreement relating to the
making of a Takeover Proposal to which it is a party (other than any involving
Parent or its Subsidiaries). During such period, TULIP agrees to use all
reasonable efforts to enforce, to the fullest extent permitted under applicable
law, the provisions of any such agreements, including seeking injunctions to
prevent any breaches of such agreements and to enforce specifically the terms
and provisions thereof in any court of the United States or any state thereof
having jurisdiction.
(b) Except as provided with respect to the transactions
contemplated by the TULIP Merger Agreement, the Board of Directors of TULIP
shall not, without the prior written consent of Parent (a) amend the Rights
Agreement (as defined in the TULIP Merger Agreement) or (b) take any action with
respect to, or make any determinations under, the Rights Agreement, including a
redemption of the Rights or any action to facilitate a Takeover Proposal.
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SECTION 8. Termination.
(a) Unless earlier terminated pursuant to this Section 8,
this Agreement will terminate on the earlier to occur of (i) the consummation of
the Elf Merger and (ii) the termination of the Elf Merger Agreement in
accordance with its terms.
(b) This Agreement may be terminated at any time prior to
the effectiveness of any approval of the Elf Merger Agreement by the
stockholders of Elf by mutual written agreement of Parent and TULIP.
(c) The provisions of Sections 9, 13, 14, 15 and 16 will
survive any termination of this Agreement pursuant to Section 8. The provisions
of Section 12 will survive termination of this Agreement pursuant to Section
8(a)(i).
SECTION 9. Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such cost or expense.
SECTION 10. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to Parent, to:
Xxxxxxx Company
Xxx Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Fax: (000) 000-0000
if to TULIP, to:
Flowers Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: G. Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
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with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Fax: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
SECTION 11. Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Agreement or, in the case of a
waiver, by each party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 12. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer, whether by operation or law or otherwise, any of
its rights or obligations under this Agreement without the consent of each other
party hereto.
SECTION 13. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the conflicts of laws rules of such state.
SECTION 14. Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in any federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding brought in any such court has been
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brought in an inconvenient forum. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 10 shall be
deemed effective service of process on such party.
SECTION 15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 16. Counterparts; Effectiveness; Benefit. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto. No provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations, or liabilities hereunder upon any Person other
than the parties hereto and their respective successors and assigns.
SECTION 17. Entire Agreement. This Agreement, the
Confidentiality Agreement, the Elf Merger Agreement, and the TULIP Merger
Agreement entered into by the parties concurrently with the execution and
delivery of this Agreement constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersede all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
SECTION 18. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 19. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties 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 in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
SECTION 20. Specific Performance. The parties hereto agree
that irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled, without posting a bond or similar indemnity, to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in any federal court located in
the State of Delaware or any Delaware state court, in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
Xxxxxxx Company
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name:
Title:
Flowers Industries, Inc.
By: /s/ G.A. Xxxxxxxx
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Name:
Title:
