Exhibit 10.1
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.
STOCKHOLDER VOTING
AGREEMENT
STOCKHOLDER VOTING AGREEMENT, dated
March 4, 2007 (this “ Agreement ”), among
Tengelmann Warenhandelsgesellschaft KG, a limited partnership
organized under the laws of the Federal Republic of Germany
(“ Stockholder ”), and Pathmark Stores, Inc., a
Delaware corporation (the “ Company
”).
WHEREAS, the Company, The Great
Atlantic & Pacific Tea Company, Inc., a Maryland corporation
(“ Parent ”), and Sand Merger Corp., a Delaware
corporation and a wholly owned subsidiary of Parent (“
Merger Sub ”), have entered into an Agreement and Plan
of Merger (the “ Merger Agreement ”), dated as
of the date of this Agreement, pursuant to which, on the Closing
Date, Merger Sub will merge with and into the Company (the “
Merger ”) (capitalized terms not defined herein shall
have the meanings assigned to such terms in the Merger
Agreement);
WHEREAS, as a condition to its
willingness to enter into the Merger Agreement, the Company has
requested that Stockholder make certain agreements with respect to
the outstanding shares of Common Stock, par value $1.00 per share
(“ Shares ”), of Parent owned by Stockholder as
set forth in Schedule I and shares of other voting securities of
Parent hereafter acquired by Stockholder (the “ Subject
Shares ”), upon the terms and subject to the conditions
of this Agreement; and
WHEREAS, in order to induce the
Company to enter into the Merger Agreement, Stockholder is willing
to make certain agreements with respect to the Subject
Shares;
NOW, THEREFORE, in consideration of
the promises and the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:
1.
Voting Agreement . For so long as this Agreement is in effect,
in any meeting (or any adjournment or postponement thereof) of
stockholders of Parent, and in any action by consent of the
stockholders of Parent, Stockholder shall vote (or cause to be
voted), or, if applicable, give (or cause to be given) consents
with respect to, all of the Subject Shares that are held by that
Stockholder and are entitled to vote at the meeting or deliver (or
cause to be delivered) a consent, in any such case (i) in favor of
(A) the issuance of Parent Common Stock in connection with the
Merger or any other transaction contemplated by the Merger
Agreement, as the Merger Agreement may be modified or amended from
time to time in a manner not adverse to Stockholder or with the
written consent of Stockholder and (B) the approval of the
Preemptive Rights Waiver, (ii) against any action, proposal,
transaction or agreement which would reasonably be expected to
result in a breach of any covenant, representation, or warranty or
any other obligation or agreement of Parent or Merger Sub under the
Merger Agreement or of Stockholder under this Agreement, and (iii)
against any action, proposal, transaction or agreement that would
compete with or would delay, discourage, adversely affect or
inhibit the timely consummation of the Merger. Stockholder shall
use its best efforts to cast (or cause to be cast)
Stockholder’s vote or give Stockholder’s consent in
accordance with the procedures communicated to Stockholder by
Parent relating thereto so that the vote or consent shall be duly
counted for purposes of determining that a quorum is present and
for purposes of recording the results of that vote or
consent.
2.
Covenants .
(a)
For so long as this Agreement is in effect,
Stockholder agrees not to directly or indirectly (i) sell,
transfer, pledge, assign, hypothecate, encumber, tender or
otherwise dispose of, or enter into any contract with respect to
the sale, transfer, pledge, assignment, hypothecation,
encumbrance,
1
tender or other disposition of (each
such disposition or contract, a “ Transfer ”)
any Subject Shares (and any such Transfer shall be null and void),
except in connection with any margin transaction or hedging
transaction designed to protect against fluctuations in the value
of the Subject Shares, in each case, (x) that is not engaged in for
purposes of circumventing the restrictions on transfer set forth in
this Section 2(a) and (y) pursuant to which Stockholder retains
voting control over the applicable Subject Shares; (ii) grant any
proxies with respect to the Subject Shares, deposit any of the
Subject Shares into a voting trust or enter into a voting or option
agreement with respect to any of the Subject Shares or enter into
any other agreement inconsistent with or violative of this
Agreement; or (iii) take any action which would make any
representation or warranty of Stockholder in this Agreement untrue
or incorrect or prevent, burden or materially delay the
consummation of the transactions contemplated by this Agreement or
the Merger Agreement.
(b)
Stockholder agrees that in the event (i) any
shares of Parent Common Stock or other voting securities of Parent
are issued pursuant to any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of
shares of capital stock of Parent on, of, or affecting the Subject
Shares of Stockholder; (ii) Stockholder purchases or otherwise
acquires beneficial ownership of any shares of Parent Common Stock
or other voting securities of Parent after the execution of this
Agreement; or (iii) Stockholder acquires the right to vote or share
in the voting of any shares of Parent Common Stock or other voting
securities of Parent, other than the Subject Shares (such Parent
Common Stock and other voting securities of Parent, collectively,
the “ New Shares ”), Stockholder agrees to vote
such New Shares in the same manner as the Subject Shares and to
notify the Company of its acquisition thereof. Stockholder also
agrees that any New Shares shall constitute Subject
Shares.
(c)
Stockholder shall not issue any press release or
make any other public statement with respect to the Merger
Agreement, the Merger or any other transaction contemplated hereby
or by the Merger Agreement without the prior written consent of the
Company, except (i) any German translation of all or any portion of
any release or statement publicly disclosed by Parent or the
Company or (ii) as may be required by applicable Law or court
process, in each case, after consultation with, and having provided
an opportunity for review and comment on such press release or
other public statement (including, in the case of clause (i), an
English translation thereof) by, the Company to the extent
practicable.
3.
Representations and Warranties of
Stockholders .
Stockholder represents and warrants to the Company that:
(a)
Authority; Enforceability; No
Conflicts . Stockholder
has the legal capacity to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. This
Agreement has been duly executed and delivered by Stockholder and
constitutes a valid and binding agreement of Stockholder
enforceable against Stockholder in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors’
rights generally and general principles of equity (whether
considered in a proceeding in equity or at law). The execution,
delivery and performance by Stockholder of this Agreement will not
(i) conflict with, require a consent, waiver or approval under, or
result in a breach or default under, any of the terms of any
contract, commitment or other obligation to which the Stockholder
is a party or by which Stockholder is bound; (ii) violate any
order, writ, injunction, decree or statute, or any law, rule or
regulation applicable to Stockholder or the Subject Shares; or
(iii) result in the creation of, or impose any o
