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EXHIBIT 10.112
EXECUTION COPY
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this "Agreement") is entered into as of
October 27, 2005, by and among GF Goods
Inc., a Delaware corporation ("Parent"),
GF Acquisition Corp., a Tennessee
corporation ("Acquisition Corp."), and each of
the persons listed on Schedule A hereto
(each a "Principal Shareholder" and,
collectively, the "Principal
Shareholders"). Each capitalized term used but not
otherwise defined herein shall have the
meaning ascribed to such term in the
Acquisition Agreement and Plan of Merger,
dated as of the date hereof (as
amended, supplemented and otherwise
modified from time to time, the "Acquisition
Agreement"), by and among Parent,
Acquisition Corp. and Goody's Family Clothing,
Inc., a Tennessee corporation (the
"Company").
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Company, Parent and
Acquisition Corp. are entering into the
Acquisition Agreement which provides,
subject to the terms and conditions set
forth in the Acquisition Agreement, for (i)
the making of a tender offer (the
"Offer") to purchase all of the Company's
shares of common stock, no par value
per share ("Company Common Stock"), which
are issued and outstanding (the
"Outstanding Common Shares") and tendered
pursuant to the terms thereof, at a
price per Outstanding Common Share equal to
the Offer Price, and (ii) the merger
of Acquisition Corp. and the Company (the
"Merger"), whereby each Outstanding
Common Share not purchased pursuant to the
Offer (other than any Outstanding
Common Shares owned by Parent, Acquisition
Corp. or any other wholly owned
Subsidiary of Parent) will be converted
into the right to receive the Merger
Consideration in cash;
WHEREAS, the Board of Directors of the Company (the "Board") has,
at a
meeting duly called and held, unanimously
(i) approved the Acquisition
Agreement, each of the other Transaction
Agreements, as well as the Offer, the
Merger and the other Transactions, and (ii)
recommended that the holders of
Common Shares accept the Offer, tender
their Common Shares pursuant to the Offer
and approve and adopt this Agreement and
the Merger;
WHEREAS, each Principal Shareholder is the record and beneficial
owner
of the number of Outstanding Common Shares
and the Stock Rights (as defined
below) in each case set forth opposite such
Principal Shareholder's name on
Schedule A hereto (collectively, the
"Existing Equity Rights" of such Principal
Shareholder; and, together with all shares
of Company Common Stock and Stock
Rights acquired after the date hereof by
such Principal Shareholder, whether
upon the exercise, conversion or exchange
of any Existing Equity Rights, upon
the exercise, conversion or exchange of any
Stock Rights obtained hereafter by
such Principal Shareholder or otherwise
hereafter acquired by such Principal
Shareholder, in each case as such shares,
rights and other securities may be
adjusted from time to time for any stock
dividend, stock split,
recapitalization, combination, exchange,
merger, consolidation, reorganization
or other change or transaction involving
the Company, are referred to herein
collectively as the "Principal Shareholder
Shares" of such Principal
Shareholder). For purposes hereof, "Stock
Rights" means options and other rights
to acquire shares of Company Common Stock
or rights exercisable for or
convertible into shares of Company Common
Stock; and
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WHEREAS, as a condition to the willingness of Parent and
Acquisition
Corp. to enter into the Acquisition
Agreement, Parent and Acquisition Corp. have
requested that the Principal Shareholders
enter into this Agreement.
NOW, THEREFORE, to induce Parent and Acquisition Corp. to enter
into,
and in consideration of them entering into,
the Acquisition Agreement, and in
consideration of the foregoing premises and
the representations, warranties,
covenants and agreements contained herein,
Parent, Acquisition Corp. and each of
the Principal Shareholders hereby agree as
follows:
1. Representations and Warranties of Each Principal Shareholder.
Each
Principal Shareholder, acting solely in its
capacity as a holder of Principal
Shareholder Shares and not as a director of
the Company or in any other
capacity, hereby, severally and not jointly
with any other Principal
Shareholder, represents and warrants to
Parent and Acquisition Corp. as follows:
(a) Authority. Such Principal Shareholder has all requisite
power
and authority to
execute and deliver this Agreement, to perform all of its
obligations
hereunder and otherwise to consummate the transactions
contemplated
hereby. The execution, delivery and performance of this
Agreement and
the consummation of the transactions contemplated hereby,
have been duly
authorized by such Principal Shareholder. This Agreement has
been duly
executed and delivered by such Principal Shareholder and,
assuming this
Agreement constitutes a valid and binding obligation of the
Parent and
Acquisition Corp., constitutes a valid and binding obligation
of
such Principal
Shareholder enforceable against such Principal Shareholder
in accordance
with its terms. Other than in connection with or in
compliance with
the provisions of the Exchange Act or the HSR Act, neither
the execution,
delivery or performance of this Agreement by such Principal
Shareholder nor
the consummation by such Principal Shareholder of the
transactions
contemplated hereby will (i) require any filing with, or
permit,
authorization, consent or approval of, any Governmental
Authority
(except for
filing an amendment to Robert M. Goodfriend's Schedule 13D to
reflect the
transactions contemplated by this Agreement), (ii) result in a
material
violation or breach of, or constitute (with or without due
notice
or lapse of time
or both) a material default under, or give rise to any
right of
termination, amendment, cancellation or acceleration under,
result
in the creation
of any material Lien upon a material portion of the
properties or
assets of each Principal Shareholder, or result in the
creation of any
Lien upon any Company Common Stock, under, any of the
terms,
conditions or provisions of any Contract to which such
Principal
Shareholder is a
party or by which such Principal Shareholder or any of
such Principal
Shareholder's properties or assets, including the Principal
Shareholder
Shares owned by such Principal Shareholder, may be bound or
(iii) violate,
in any material respect, any Order or any Law applicable to
such Principal
Shareholder or any of such Principal Shareholder's
properties or
assets, including the Principal Shareholder Shares owned by
such Principal
Shareholder.
(b) Ownership of Principal Shareholder Shares. The Existing
Equity Rights of
such Principal Shareholder and all certificates
representing
such Existing Equity Rights are now, and at all times while
this Agreement
is in effect will be, held by such Principal Shareholder, or
by a nominee or
custodian for the benefit of such Principal
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Shareholder, and
such Principal Shareholder has good and marketable title
to such Existing
Equity Rights, free and clear of any Liens, proxies,
voting trusts or
agreements, understandings or arrangements, except for any
such Liens or
proxies arising hereunder, other than, with respect to any
Principal
Shareholder, those agreements set forth on Schedule A opposite
such Principal
Shareholder's name, all of which agreements (including the
Support
Agreement, dated as of October 7, 2005, among GFC Holding
Corp.,
GFC Enterprises,
Inc. and the principal Shareholders (the "Sun Support
Agreement"))
have been terminated prior to the date hereof. All Principal
Shareholder
Shares acquired hereafter by such Principal Shareholder shall
at all times
while this Agreement is in effect be held by such Principal
Shareholder, or
by a nominee or custodian for the benefit of such Principal
Shareholder, and
such Principal Shareholder shall at all time while this
Agreement is in
effect have good and marketable title to all such Principal
Shareholder
Shares, free and clear of any Liens, proxies, voting trusts or
agreements,
understandings or arrangements, except for any such Liens or
proxies arising
hereunder. Such Principal Shareholder does not own of
record or
beneficially any Outstanding Common Shares, any options or
other
rights to
purchase shares of Company Common Stock or any rights
exercisable
for or
convertible into shares of Company Common Stock, other than the
Outstanding
Common Shares and shares of Company Common Stock issuable upon
the exercise of
Company Stock Options, in each case set forth opposite such
Principal
Shareholder's name on Schedule A hereto. The Principal
Shareholders
own, in the aggregate, 41.5% of the Outstanding Common Shares
and, assuming
the options are exercised pursuant to Section 3(b)(1), over
39.6% of the
shares of Company Common Stock on a Fully-Diluted Basis.
(c) Acquisition Agreement. Such Principal Shareholder
understands
and acknowledges
that Parent and Acquisition Corp. are entering into the
Acquisition
Agreement in reliance upon execution and delivery of this
Agreement by
such Principal Shareholder.
(d) Adequacy of Information. Such Principal Shareholder is a
sophisticated
investor with respect to the Principal Shareholder Shares of
such Principal
Shareholder and has adequate information concerning the
business and
financial condition of the Company to make an informed
decision
regarding the transactions contemplated hereby and by the
Acquisition
Agreement and has independently and without reliance upon
either Parent or
Acquisition Corp. and based on such information as the
Shareholder has
deemed appropriate made its own analysis and decision to
enter into this
Agreement. Such Principal Shareholder has received and
reviewed the
Acquisition Agreement and acknowledges that neither Parent nor
Acquisition
Corp. has made or makes any representation or warranty, whether
express or
implied, of any kind or character except as expressly set forth
herein or in the
Acquisition Agreement. Such Principal Shareholder
acknowledges
that the agreements contained herein with respect to the
Principal
Shareholder Shares of such Principal Shareholder are
irrevocable
(subject to
termination in accordance with Section 14 of this Agreement),
and that such
Principal Shareholder has no recourse to such Principal
Shareholder
Shares or to Parent or Acquisition Corp., except with respect
to breaches by
Parent or Acquisition Corp. of their respective
representations,
warranties, covenants and agreements expressly set forth
in this
Agreement.
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(e) Excluded Information. Such Principal Shareholder
acknowledges
and confirms
that (i) Parent and Acquisition Corp. may possess or hereafter
come into
possession of certain non-public information concerning the
Principal
Shareholder Shares and/or the Company which is not known to
such
Principal
Shareholder and which may be material to such Principal
Shareholder's
decision to enter into this Agreement or to consummate the
transactions
contemplated hereby (the "Excluded Information"), (ii) such
Principal
Shareholder has requested not to receive the Excluded
Information
and has
determined to enter into this Agreement and to consummate the
transactions
contemplated hereby (including, without limitation, to
exercise,
convert or cancel all Existing Equity Rights into shares of
Company Common
Stock at or prior to the Effective Time and to sell the
Principal
Shareholder Shares of such Principal Shareholder pursuant to
the
Offer)
notwithstanding its lack of knowledge of the Excluded
Information,
and (iii)
neither Parent nor Acquisition Corp., nor any of their
respective
officers,
directors, shareholders or representatives, shall have any
liability or
obligation to such Principal Shareholder in connection with,
and such
Principal Shareholder hereby waives and releases each of
Parent,
Acquisition Corp. and their
respective officers, directors, shareholders
and
representatives from, any claims which such Principal Shareholder
or
its successors
or assigns may have against Parent, Acquisition Corp. or any
their respective
officers, directors, shareholders or representatives
(whether
pursuant to applicable securities, laws or otherwise) with
respect
to the
non-disclosure of the Excluded Information.
2. Representations and Warranties of Parent and Acquisition Corp.
Each
of Parent and Acquisition Corp. hereby
represents and warrants to the Principal
Shareholders that each of Parent and
Acquisition Corp. has the requisite
corporate power and authority to execute
and deliver this Agreement, to perform
its obligations hereunder and otherwise to
consummate the transactions
contemplated hereby. The execution,
delivery and performance of this Agreement
by Parent and Acquisition Corp. and the
consummation of the transactions
contemplated hereby have been duly
authorized by all necessary corporate action
on the part of Parent and Acquisition Corp.
This Agreement has been duly
executed and delivered by Parent and
Acquisition Corp. and, assuming this
Agreement constitutes a valid and binding
obligation of each Principal
Shareholder, constitutes a valid and
binding obligation of Parent and
Acquisition Corp. enforceable in accordance
with its terms.
3. Covenants. Each Principal Shareholder, acting solely in its
capacity as a holder of Principal
Shareholder Shares and not as a director or
officer of the Company or in any other
capacity, hereby, severally and not
jointly with any other Principal
Shareholder, agrees as follows:
(a) such Principal Shareholder shall not, except as expressly
contemplated by
the terms of this Agreement or the Acquisition Agreement,
(A) sell,
transfer, pledge, assign or otherwise dispose of (including,
without
limitation, by merger or otherwise by operation of law), or
enter
into any
Contract, option or other arrangement (including, without
limitation, any
profit sharing arrangement) or understanding with respect
to the sale,
transfer, pledge, assignment or other disposition of
(including,
without limitation, by merger or otherwise by operation of
law), all or any
portion, or any interest in any, of the Principal
Shareholder
Shares of such Principal Shareholder to any person
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other than
Acquisition Corp. or any Person(s) designated in writing by
Acquisition
Corp., (B) enter into any voting arrangement, whether by proxy,
voting
agreement, voting trust, power-of-attorney or otherwise, with
respect to all
or any portion of the Principal Shareholder Shares of such
Principal Shareholder
or (C) take any other action that would in any way
restrict, limit
or interfere with the performance of such Principal
Shareholder's
obligations hereunder or the transactions contemplated hereby
or in the
Acquisition Agreement;
(b) such Principal Shareholder (i), no later than one business
day prior to the
then applicable expiration date of the Offer as set forth
in the
Acquisition Agreement shall take all actions necessary or
desirable
to exercise or convert all options
to acquire Company Common Stock which
have an exercise
price equal to or less than the Offer Price into shares of
Common Stock and
shall validly tender such shares of Company Common Stock
as set forth in
Section 3(c) below and (ii) prior to the commencement of
the Offer, such
Principal Shareholder shall execute a written
acknowledgement
to Parent, Acquisition Corp. and the Company confirming
that as of the
Effective Date, (x) the payment of the Option Consideration,
if any, for all
of such Principal Shareholder's Stock Rights with an
exercise price
equal to or less than Offer Price per share will satisfy in
full the
Company's obligation to such person pursuant to any and all
Stock
Rights then
outstanding (other than with respect to any Options which have
been exercised
prior to the Effective Time) and (y) subject to the payment
of the Option
Consideration, if any, all Stock Rights (including Stock
Rights with an
exercise price or conversion price in excess of the Option
Consideration
with respect to such Stock Rights) by such Principal
Shareholder
shall, without any action on the part of the Company or the
Principal
Shareholder, be deemed terminated, canceled, void and of no
further force
and effect as between the Company and such Principal
Shareholder and
neither party shall have any further rights or obligations
with respect
thereto. Such written acknowledgement shall be in
substantially
the form of Exhibit D to the Acquisition Agreement;
(c) such Principal Shareholder shall (A) as promptly as
practicable (but
in any event within 5 business days after the commencement
of the Offer),
validly tender all of the Principal Shareholder Shares of
such Principal
Shareholder pursuant to and in accordance with the terms of
the Offer, and
(B) not withdraw, or cause to be withdrawn, all or any
portion of such
Principal Shareholder Shares from the Offer, unless this
Agreement is
terminated;
(d) at any meeting of shareholders of the Company or at any
adjournment
thereof or in any other circumstances upon which such Principal
Shareholder's
vote, consent or other approval is sought, such Principal
Shareholder
shall as requested by Acquisition Corp. vote (or cause to be
voted) all of
the Principal Shareholder Shares of such Principal
Shareholder in
favor of the approval and adoption of the Acquisition
Agreement and
the Transactions and against (A) any Acquisition Proposal (as
defined in the
Acquisition Agreement), (B) any action which would result in
a change in a
majority of the individuals who constitute the Board and (C)
any amendment of
the Company's Charter or by-laws or any other proposal or
transaction
involving the Company or any of its Subsidiaries, which
amendment or
other proposal or
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transaction
would in any manner impede, frustrate, prevent or nullify, the
Acquisition
Agreement, the Merger or any of the other Transactions
(collectively,
"Frustrating Transactions");
(e) notwithstanding any provision herein or in the Acquisition
Agreement to the
contrary, such Principal Shareholder hereby waives any
rights of
appraisal that such Principal Shareholder may have under the
Tenn. Acts in
connection with the Merger or any of the other Transactions;
and
(f) such Principal Shareholder shall not, and shall cause each
of
its immediate
family members and affiliates not to, directly or indirectly,
encourage,
solicit, participate in or initiate discussions or negotiations
with, provide
any information to, or enter into any agreement with, any
Person or group
of Persons (other than Parent, Acquisition Corp. or any of
their respective
affiliates) concerning all or any portion, or interest in
any, of the
Principal Shareholder Shares of such Principal Shareholder or
any Acquisition
Proposal; provided, however, that this provision shall in
no way be
construed as limiting the ability to act in the capacity of an
officer or
director of the Company (other than as set forth in the
Acquisition
Agreement) if such Principal Shareholder is an officer or
director of the
Company.
4. Notice of Acquisition of Additional Principal Shareholder
Shares.
Each Principal Shareholder hereby,
severally and not jointly with any other
Principal Shareholder, agrees, while this
Agreement is in effect, to promptly
notify Parent and Acquisition Corp. of each
acquisitio
