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STOCKHOLDERS AGREEMENT dated as of December 3, 1997 (this
"Agreement") among Guest Supply, Inc., a New Jersey corporation (the
"Corporation"), Xxxxx Xxxxxxxx (the "13D Stockholder") and the other
stockholders of the Corporation signing this Agreement (together with the
13D Stockholder, the "Stockholders").
W I T N E S E T H:
WHEREAS, each of the Stockholders is the beneficial owner of the
number of shares of common stock, without par value ("Common Stock"), of
the Corporation set forth opposite such Stockholder's name on the signature
page hereto; and
WHEREAS, the 13D Stockholder is a member of a group which has
filed a statement in respect of its holdings of the Corporation's equity
securities on Schedule 13D under the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx").
NOW, THEREFORE, in consideration of the mutual benefits to be
derived and the conditions and promises herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows:
1. Voting Agreement. Each of the Stockholders, for the benefit of
the Corporation and as an inducement to the Corporation to enter into this
Agreement, agrees to vote or cause to be voted all of the shares of Common
Stock which such person has the right to vote and of which such person has
the right to direct the vote (a) in favor of persons nominated as directors
by a majority of the current directors of the Corporation (the "Continuing
Director Nominees") (i) for election at the 1998 annual meeting (the "1998
Meeting") of the Corporation's stockholders and (ii) unless the 13D
Stockholder shall have notified the Corporation and the Stockholders in
writing within five days after the public release of the Corporation's
financial results for fiscal 1998 that, based upon the 13D Stockholder's
participation in meetings of the Board of Directors of the Corporation, the
13D Stockholder has concluded that the Corporation's management is not
effectively addressing the business issues facing the Corporation (any such
notice, a "Dissent Notice"), for election at the 1999 annual meeting (the
"1999 Meeting") of the Corporation's stockholders and (b) against any and
all stockholder proposals relating to the Corporation made at the 1998
Meeting which are opposed by a majority of the
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current members of the Board of Directors of the Corporation (each, a
"Stockholder Proposal").
2. Directors. (a) Provided that (i) none of the Stockholders shall
have breached any agreement hereunder, (ii) both Continuing Director
Nominees are elected as directors of the Corporation at the 1998 Meeting
and (iii) no Stockholder Proposal is approved by the stockholders of the
Corporation at the 1998 Meeting, then the Corporation shall use its best
efforts to cause the Board of Directors of the Corporation (1) to increase
by one the number of Class B directors of the Corporation, to elect the 13D
Stockholder as a Class B director of the Corporation as the first order of
business at the meeting of the Board of Directors to be held immediately
following the adjournment of the 1998 Meeting and to invite the 13D
Stockholder to attend such meeting and (2) to nominate the 13D Stockholder
for election as a Class B director of the Corporation at the 1999 Meeting.
(b) Provided that (i) none of the Stockholders shall have
breached any agreement hereunder, (ii) both Continuing Director Nominees
are elected as directors of the Corporation at the 1998 Meeting, (iii) no
Stockholder Proposal is approved by the stockholders of the Corporation at
the 1998 Meeting, (iv) no Dissent Notice shall have been delivered to the
Corporation or any Stockholder and (v) after the date hereof there shall
not have been any Solicitation (as hereinafter defined) relating to the
Corporation, which Solicitation is not publicly endorsed and recommended by
a resolution of a majority of the current members of the Board of Directors
of the Corporation, then the Corporation shall use its best efforts, prior
to the 1999 Meeting, to cause the Board of Directors of the Corporation to
nominate an individual (the "13D Director") mutually agreed upon by the 13D
Stockholder, the President of the Corporation and a majority of the other
members of the Board of Directors of the Corporation for election as a
Class A director or a Class B director of the Corporation at the 1999
Meeting.
(c) In no event shall any of the Stockholders nominate or vote
for (by proxy or otherwise) any individual who is not a Continuing Director
Nominee for election as a director of the Corporation at a meeting of
stockholders of the Corporation (or by written consent) if the election of
such individuals as a director of the Corporation, together with the
election of all other individuals nominated for election at such meeting
(or by written consent), would result in less than a majority of the
directors of the Corporation being Continuing Director Nominees.
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(d) Attached hereto as Annex A is a form of the agreement of the
current directors of the Corporation concerning this Section 2; such form
of agreement, executed by at least a majority of the current directors of
the Corporation, is being delivered to the 13D Stockholder
contemporaneously herewith.
(e) The terms "Solicitation" and "Solicit" shall mean (i) any
solicitation (within the meaning of the Exchange Act) of a proxy (as
defined in the Exchange Act), (ii) any request for a proxy, whether or not
accompanied, preceded or followed by a proxy or included in a form of
proxy, (iii) any request or recommendation to execute or not to execute, or
to revoke or not to revoke, a proxy, (iv) the furnishing of a form of proxy
or other communication to security holders under circumstances reasonably
calculated to result in the procurement, withholding or revocation of a
proxy or (v) any public statement, favorable or unfavorable, regarding any
proposal, nominee or other matter in any proxy.
(f) Notwithstanding the foregoing, if the Stockholders shall at
any time, in the aggregate, beneficially own (within the meaning of Rule
13d-3 under the Exchange Act) in the aggregate less than 2% of the shares
of Common Stock outstanding, then the Stockholders shall have no further
rights under this Section 2 and the 13D Stockholder and the 13D Director
shall promptly resign as directors of the Corporation if requested to do so
by a majority of the current directors of the Corporation.
3. Additional Representations, Warranties and Agreements of the 13D
Stockholder. (a) The 13D Stockholder represents and warrants to the
Corporation and its directors that he will take office as a director of the
Corporation pursuant to Section 2 with the intention and expectation that
he will support the current management of the Corporation.
(b) The 13D Stockholder hereby withdraws the Stockholder
Proposal made by him for inclusion in the Corporation's proxy statement for
the 1998 Meeting and shall use his best efforts to cause to be withdrawn
any and all other Stockholder Proposals as soon as possible, and in any
event at or prior to the 1998 Meeting and, in any case, from and after the
date of mailing of the Corporation's proxy statement for the 1998 Meeting
he shall actively solicit proxies and votes against all Stockholder
Proposals for the 1998 Meeting.
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(c) The 13D Stockholder shall use his best efforts to have the
holders of at least 1,000,000 shares of Common Stock, in addition to
himself, execute and deliver this Agreement prior to December 31, 1997.
4. No Solicitation.
(a) From the date hereof through the earlier of date of the 1999
Meeting and the date a Dissent Notice is received by the Corporation and
such Stockholder, no Stockholder and none of the affiliates or associates
of such Stockholder shall become, provide information to or assist a
Participant (as hereinafter defined) in any Solicitation relating to the
Corporation which Solicitation is not publicly endorsed and recommended by
a resolution of a majority of the current members of the Board of Directors
of the Corporation. The term "Participant" shall mean (i) any committee or
group which Solicits proxies, any member of such committee or group, and
any person whether or not named as a member who, acting alone or with one
or more other persons, directly or indirectly takes the initiative, or
engages, in organizing, directing or arranging for the financing of any
such committee or group; (ii) any person who finances or joins with another
to finance the Solicitation of proxies; (iii) any person who lends money or
furnishes credit or enters into any other arrangements, pursuant to any
contract or understanding with a Participant, for the purpose of financing
or otherwise inducing the purchase, sale, holding or voting of securities
of the Corporation by any Participant or other persons, in support of or in
opposition to a Participant; and (iv) any person who Solicits proxies. The
terms "affiliate" and "associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Exchange Act, as in effect
on the date hereof.
(b) This Section 4 shall not be deemed to amend or modify in any way
that certain Rights Agreement dated as of July 15, 1988, as amended,
between the Corporation and the rights agent thereunder.
5. Public Announcements. Subject to Section 4(a), each of the
Stockholders will consult with the Corporation before issuing any press
release or making any public statement with respect to this Agreement or
any of the transactions contemplated hereby.
6. Notices. Any notice or other communication under this Agreement
shall be in writing and sufficient if delivered personally, by telecopy or
sent by registered or certified mail, postage prepaid, addressed as
follows:
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If to the Corporation:
0000 X.X. Xxxxxxx Xxx
Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Cost, Esq.
If to any Stockholder:
To the address as set forth opposite such Stockholder's name
on the signature pages hereof.
All such notices and communications shall be deemed to have been duly given
at the time delivered by hand, if personally delivered, upon confirmation
of receipt, if sent by telecopy, or five (5) business days after being
deposited in the mail, if sent by registered or certified mail. Any party
may, upon written notice to the other parties hereto, change the address to
which notices or other communications to such party are to be delivered or
mailed.
7. Counterparts. This Agreement may be executed in any number
of counterparts (including by telecopy), each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
8. Entire Agreement. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter
hereof. All of the parties hereto agree that this Agreement may be amended
or modified or any provision hereof may be waived by a written agreement
between the 13D Stockholder and the Corporation. This Agreement supersedes
all prior understandings, negotiations and agreements relating to the
subject matter hereof.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey applicable
to agreements made and to be performed entirely within such State, without
regard to any conflict of laws
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principles of such State which would apply the laws of any other
jurisdiction.
10. Jurisdiction; Waiver of Trial by Jury. THE PARTIES HERETO
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE OR
UNITED STATES FEDERAL COURT SITTING IN THE CITY OF NEW YORK, NEW YORK, OVER
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK, NEW YORK, STATE OR
FEDERAL COURT. THE PARTIES AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. THE PARTIES FURTHER WAIVE TRIAL BY JURY, ANY OBJECTION TO VENUE IN
SUCH STATE AND ANY OBJECTION TO ANY ACTION OR PROCEEDING IN SUCH STATE ON
THE BASIS OF FORUM NON CONVENIENS. THE PARTIES FURTHER AGREE THAT ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
BROUGHT ONLY IN A NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN
NEW YORK, NEW YORK.
11. Severability. If any provision herein contained shall be
held to be illegal or unenforceable, such holding shall not affect the
validity or enforceability of the other provisions of this Agreement.
12. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Corporation and its successors and assigns and
the Stockholders who have signed this Agreement and their respective
successors, assigns, executors, administrators, legal representatives and
heirs, as applicable.
13. Specific Enforcement. Each of the parties hereto hereby
consents and agrees that, in the event of a breach or threatened breach by
any party of any provision this Agreement, the Corporation, in the case of
a breach or threatened breach by any Stockholder, or the 13D Stockholder,
in the case of a breach or threatened breach by the Corporation, shall be
entitled to an injunction or similar equitable relief restraining the party
breaching or threatening a breach from committing or continuing any such
breach or threatened breach or granting specific performance of any act
required to be performed under this Agreement by the party breaching or
threatening a breach, without the necessity of showing any actual damage or
that money damages would not afford an adequate remedy and without the
necessity of posting any bond or other security.
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14. Construction. The parties hereto agree that this Agreement
is the product of negotiations among sophisticated parties, each of whom
were represented by counsel, and each of whom had an opportunity to
participate in, and did participate in, the drafting of each provision
hereof.
15. Effectiveness. The parties hereto agree that this Agreement
shall automatically become effective and be of full force and effect upon
the mailing by the Corporation of a Proxy Statement for use at the 1998
Meeting, which Proxy Statement shall be substantially in the form of the
Proxy Statement attached hereto as Annex B.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Stockholders Agreement on the date first above written.
GUEST SUPPLY, INC.
By:___________________________
Name:
Title:
_________ Address: 2480 Colts Neck Road ______________________________
Shares Xxxxxxxxx, Xxxx 00000 Xxxxx Xxxxxxxx
Telephone:(000) 000-0000
Telecopy: (000) 000-0000
_________ Address: _____________________________
Shares Name:
_________ Address: ______________________________
Shares Name:
_________ Address: ______________________________
Shares Name:
_________ Address: ______________________________
Shares Name:
_________ Address: ______________________________
Shares Name:
_________ Address: ______________________________
Shares Name:
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Annex A to Stockholders Agreement
As of December 3, 1997
FORM OF DIRECTORS' AGREEMENT
Reference is hereby made to that certain Stockholders Agreement
dated as of December 3, 1997 (the "Stockholders Agreement") among Guest
Supply, Inc., a New Jersey corporation (the "Corporation"), and the
stockholders of the Corporation who are a party thereto (the
"Stockholders"). All capitalized terms used herein and not otherwise
defined herein shall have the same respective meanings as in the
Stockholders Agreement. Provided that each of the conditions set forth in
clauses (i), (ii) and (iii) of Section 2(a) of the Stockholders Agreement
shall have been satisfied, then each of the undersigned hereby agrees, in
his or her capacity as a director of the Corporation, (1) to increase by
one the number of Class B directors of the Corporation, to elect Xxxxx
Xxxxxxxx as a Class B director of the Corporation as the first order of
business at the meeting of the Board of Directors to be held immediately
following the adjournment of the 1998 Meeting and to invite Xx. Xxxxxxxx to
attend such meeting and (2) to nominate Xx. Xxxxxxxx for election as a
Class B director of the Corporation at the 1999 Meeting. Provided that
each of the conditions set forth in clauses (i), (ii), (iii), (iv) and (v)
of Section 2(b) of the Stockholders Agreement shall have been satisfied,
then each of the undersigned hereby agrees, in his or her capacity as a
director of the Corporation, to nominate the 13D Director, if any, for
election as a Class A director or a Class B director of the Corporation at
the 1999 Meeting.
* * *
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This Directors' Agreement may be executed in any number of
counterparts (including by telecopy), each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
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Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxx Xxxxxx X. Xxxxxxxx
