Exhibit 10.3
STOCKHOLDERS' AGREEMENT
Dated as of
September 29, 1999
Among
WEIGHT WATCHERS INTERNATIONAL, INC.,
ARTAL LUXEMBOURG S.A.
and
▇.▇. ▇▇▇▇▇ COMPANY
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; REPRESENTATIONS AND WARRANTIES ................... 1
1.1 Definitions ................................................... 1
1.2 Representations and Warranties of the Company ................. 2
1.3 Representations and Warranties of Heinz ....................... 2
1.4 Representations and Warranties of Artal ....................... 3
ARTICLE II COVENANTS ..................................................... 4
2.1 Transfers of Common Stock ..................................... 4
2.2 [Intentionally Omitted] ....................................... 5
2.3 Tag Along ..................................................... 5
2.4 Drag Along .................................................... 7
2.5 Certain Transfers by Artal .................................... 8
ARTICLE III REGISTRATION RIGHTS ........................................... 8
3.1 Registration Rights ........................................... 8
ARTICLE IV LEGENDS ....................................................... 8
4.1 Legend ........................................................ 8
ARTICLE V MISCELLANEOUS .................................................... 9
5.1 Termination ................................................... 9
5.2 Remedies ...................................................... 9
5.3 Consent to Amendments ......................................... 10
5.4 Successors and Assigns ........................................ 10
5.5 Severability .................................................. 10
5.6 Counterparts .................................................. 10
5.7 Notices ....................................................... 10
5.8 Governing Law ................................................. 11
5.9 Further Assurances ............................................ 11
5.10 Jurisdiction; Venue; Process .................................. 11
5.11 Mutual Waiver of Jury Trial ................................... 11
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "AGREEMENT"), dated as of September 29,
1999, among WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation (the
"Company"), ARTAL LUXEMBOURG S.A., a Luxembourg corporation ("ARTAL"), and ▇.▇.
▇▇▇▇▇ COMPANY, a Pennsylvania corporation ("HEINZ").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Recapitalization and Stock Purchase and
Recapitalization Agreement, dated as of July 22, 1999, among Heinz, the Company,
Artal International S.A. and Artal, (i) the Company has agreed to purchase from
Heinz, and Heinz has agreed to sell to the Company, 34,947,600 shares of the
Company's Common Stock, no par value per share (the "COMMON STOCK"), and (ii)
Artal has agreed to then purchase from Heinz, and Heinz has agreed to sell to
Artal, 22,372,000 shares of the Company's Common Stock (collectively, the
"RECAPITALIZATION").
WHEREAS, upon completion of the Recapitalization, Heinz will own
1,428,000 shares of Common Stock (representing 6% of the Company's then
outstanding Common Stock) and Artal will own 22,372,000 shares of Common Stock
(representing 94% of the Company's then outstanding Common Stock); and
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS;
REPRESENTATIONS AND WARRANTIES
1.1 DEFINITIONS. Capitalized terms used herein shall have the meanings
set forth below:
"AFFILIATE" means any Person which, directly or indirectly through one
or more intermediaries, controls, is controlled by, or is under common control
with, another Person. The term "control" includes, without limitation, the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"ARTICLES OF INCORPORATION" means the Articles of Incorporation of the
Company as in effect on the date hereof, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"BY-LAWS" means the By-Laws of the Company as in effect on the date
hereof, as the same may be amended, supplemented or
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otherwise modified from time to time in accordance with the terms thereof.
"CLOSING DATE" means September 29, 1999.
"CORPORATE GROUP" means, with respect to any Person, (i) such Person
together with its direct and indirect wholly owned subsidiaries and any entity,
directly or indirectly through wholly owned subsidiaries, wholly owning such
Person or (ii) if permitted by each of the agreements governing material debt of
such Person, such Person together with its Affiliates.
"DRAG ALONG NUMBER" shall have the meaning specified in Section 2.4.
"FAMILY GROUP" means, with respect to any individual, such individual's
spouse and descendants and such individual's parents, grandparents, aunts,
uncles, brothers, sisters and their respective spouses and descendants (in each
case, whether natural or adopted) and any trust or similar entity established
and maintained solely for the benefit of such individual and/or his spouse,
descendants and/or such above-listed relatives and all of the aforesaid of the
grantor of a trust that is a stockholder of the Company.
"INVESTOR JOINDER" means a joinder agreement, substantially in the form
of Exhibit 2.1(a) hereto, by which a Person becomes an Investor Stockholder
after the date hereof.
"INVESTOR STOCKHOLDERS" means, collectively, ▇▇▇▇▇, ▇▇▇▇▇ and any
Person who hereafter becomes an Investor Stockholder pursuant to an Investor
Joinder under this Agreement.
"PERMITTED TRANSFEREE" shall mean those Persons to whom Transfers are
permitted pursuant to clauses (i), (ii) and (iv) of Section 2.1(b).
"PERSON" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability company,
a trust, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC OFFERING" means a public offering of Common Stock pursuant to a
registration statement declared effective under the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, Artal and Heinz.
"RELEASE DATE" shall have the meaning specified in Section 2.1.
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"SALE NOTICE" shall have the meaning specified in Section 2.3.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES HOLDING COMPANY" shall have the meaning specified in
Section 2.3.
"SUBSIDIARY" means any corporation of which the securities having a
majority of the ordinary voting power in electing the board of directors are, at
the time as of which any determination is being made, owned by a Person either
directly or through one or more of its Subsidiaries.
"TRANSFER" shall be construed broadly and shall include any transfer by
way of issuance, sale, assignment, hypothecation, disposition, participation,
pledge, gift, bequeath, intestate transfer, distribution, liquidation, merger or
consolidation.
"TRANSFEROR GROUP" shall have the meaning specified in Section 2.4.
1.2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Investor Stockholders as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia and has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by the Company of
this Agreement and the performance by it of its obligations hereunder have been
duly authorized by all necessary corporate action of the Company. This Agreement
has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by Artal and Heinz, constitutes
the valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms; and
(b) The execution, delivery and performance by the Company of this
Agreement will not, with or without the giving of notice or lapse of time, or
both, (i) conflict with the Articles of Incorporation or By-Laws of the Company
(or the corresponding documents of any of its Subsidiaries), (ii) result in any
breach of any terms or provisions of, or constitute a default under, or conflict
with any material contract, agreement or instrument to which the Company or any
of its Subsidiaries is a party or by
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which the Company or any of its Subsidiaries is bound, except for such breaches,
defaults or conflicts which, individually or in the aggregate, would not be
likely to have a material adverse effect on the financial condition, results of
operations or business of the Company and its Subsidiaries, taken as a whole, or
(iii) violate any material provision of law, statute, rule or regulation to
which it is subject or any material order, judgment or decree applicable to it.
1.3 REPRESENTATIONS AND WARRANTIES OF HEINZ. Heinz hereby represents
and warrants to the Company and each of the other Investor Stockholders as
follows:
(a) Heinz is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by Heinz of this
Agreement and the performance by it of its obligations hereunder have been duly
authorized by all necessary corporate action of Heinz. This Agreement has been
duly executed and delivered by Heinz and, assuming the due authorization,
execution and delivery thereof by Artal and the Company, constitutes the valid
and legally binding obligation of Heinz, enforceable against Heinz in accordance
with its terms; and
(b) The execution, delivery and performance of this Agreement by Heinz
will not, with or without the giving of notice or lapse of time, or both, (i)
conflict with the articles of incorporation or by-laws of Heinz or (ii) result
in any breach of any terms or provisions of, or constitute a default under, or
conflict with any material contract, agreement or instrument to which Heinz is a
party or by which Heinz is bound, except for such breaches, defaults or
conflicts which, individually or in the aggregate, would not be likely to have a
material adverse effect on the financial position, results of operations or
business of Heinz, or (iii) violate any material provision of law, statute, rule
or regulation to which it is subject or any material order, judgment or decree
applicable to it.
1.4 REPRESENTATIONS AND WARRANTIES OF ARTAL. Artal hereby represents
and warrants to the Company and each other Investor Stockholder as follows:
(a) Artal is a corporation duly organized, validly existing and in good
standing under the laws of Luxembourg and has the corporate power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery by Artal of this Agreement and the
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performance by it of its obligations hereunder have been duly authorized by all
necessary corporate action of Artal. This Agreement has been duly executed and
delivered by Artal and, assuming the due authorization, execution and delivery
thereof by the Company and Heinz, constitutes the valid and legally binding
obligation of Artal, enforceable against Artal in accordance with its terms; and
(b) The execution, delivery and performance of this Agreement by Artal
will not, with or without the giving of notice or lapse of time, or both, (i)
conflict with the certificate of incorporation or by-laws or similar
constitutive documents of Artal or (ii) result in any breach of any terms or
provisions of, or constitute a default under, or conflict with any material
contract, agreement or instrument to which Artal is a party or by which Artal is
bound, except for such breaches, defaults or conflicts which, individually or in
the aggregate, would not be likely to have a material adverse effect on the
financial position, results of operations or business of Artal or (iii) violate
any material provision of law, statute, rule or regulation to which it is
subject or any material order, judgment or decree applicable to Artal.
ARTICLE II
COVENANTS
2.1 TRANSFERS OF COMMON STOCK.
(a) Except as permitted pursuant to Section 2.1(b) or with the prior
written consent of ▇▇▇▇▇, ▇▇▇▇▇ shall not Transfer any shares of Common Stock
until the earlier to occur of (i) the fifth anniversary of the Closing Date and
(ii) the date of completion of the initial Public Offering (the "RELEASE DATE").
Prior to making any permitted (whether as result of the exceptions set forth in
Section 2.1(b) or otherwise) Transfer of shares of Common Stock to any Person at
any time prior to the termination of this Agreement (other than a Transfer
pursuant to a Public Offering, a Transfer (provided Heinz promptly notifies the
Company and the other Investor Stockholders of such Transfer and the number of
shares of Common Stock Transferred) after the initial Public Offering under Rule
144 under the Securities Act (a "RULE 144 SALE") or a Transfer pursuant to
Sections 2.1(b)(iii)), Heinz shall obtain an Investor Joinder from such
transferee, and such transferee shall, by execution thereof, agree to become and
automatically be deemed to be an Investor Stockholder subject to all of the
rights and obligations contained in this Agreement applicable to Heinz and to
have made on the date thereof all representations and warranties made on the
date hereof by Heinz (modified, if necessary, to reflect the nature of such
Person as a corporation, partnership, other entity or natural person). Promptly
thereafter, Heinz shall cause
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originally executed copies of such Investor Joinder to be delivered to the
Company and the other Investor Stockholders and shall notify such Investor
Stockholders of the number of shares of Common Stock Transferred.
(b) The restriction on Transfer contained in the first sentence of
Section 2.1(a) above shall be inapplicable with respect to:
(i) any Transfers of Common Stock made by an individual
Investor Stockholder to his or her Family Group and, thereafter, among
members of such Family Group;
(ii) any Transfers of Common Stock by an Investor Stockholder
to a member of its Corporate Group and, thereafter, among members of
such Corporate Group; PROVIDED, HOWEVER, if such transferee ceases to
be a member of such Corporate Group, such transferee shall immediately
Transfer such Common Stock to a member of such Investor Stockholder's
Corporate Group;
(iii) any Transfer of Common Stock pursuant to the terms of
Sections 2.3 or 2.4 or the Registration Rights Agreement; and
(iv) any Transfers of Common Stock made by an individual
Investor Stockholder upon his or her death to his or her estate,
PROVIDED that the beneficiaries of the estate are Persons specified in
clause (i) of this Section 2.1(b);
PROVIDED, that no such Transfer shall be permitted under this Section 2.1(b) if
it would constitute a default or event of default under any agreement governing
material debt of the Company or any of its Subsidiaries; PROVIDED, FURTHER, that
in order to facilitate compliance with federal securities laws and the
provisions of this Agreement, the aggregate number of Permitted Transferees
under Section 2.1(b) shall not exceed 35 Persons at any time without the consent
of Artal, which consent shall not be unreasonably withheld or delayed.
(c) Any Transfer made in violation of this Section 2.1 (including,
without limitation, a Transfer made without obtaining a necessary Investor
Joinder) shall be null and void. The Company shall not permit such Transfer to
be recorded on the Company's books and records and shall not otherwise cooperate
in consummating such Transfer.
(d) No Person shall be permitted to become a party to this Agreement
except by executing an Investor Joinder pursuant
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to the terms set forth in this Section 2.1 or pursuant to the terms set forth in
Section 2.5.
2.2 [INTENTIONALLY OMITTED]
2.3 TAG ALONG. (a) At least 30 days prior to making any Transfer of any
shares of Common Stock held by Artal (other than pursuant to a Public Offering
or a Rule 144 Sale), Artal shall deliver a written notice (the "SALE NOTICE") to
Heinz, specifying in reasonable detail the number of shares of Common Stock
proposed to be transferred, the identity of the prospective transferee(s), the
terms and conditions of the Transfer (including without limitation, the price to
be paid, terms of payment, form of consideration and other material terms,
including Artal's reasonable estimate of the fair market value of any non-cash
consideration offered) and all information reasonably required to make the
calculations set forth in this Section 2.3(a); PROVIDED, HOWEVER, that the
provisions of this Section shall not apply to (i) any Transfer of any shares of
Common Stock to any of the employees of the Company or any of its Subsidiaries
(or to the Company for related issuance to such employees) in connection with
management equity participation or similar contracts, plans or programs
(PROVIDED, that such contracts, plans or programs are created in good faith and
not for purposes of avoiding the transfer restrictions contained in this
Section), (ii) any Transfer of shares of Common Stock made by an individual to
his or her Family Group and, thereafter, among members of such Family Group,
(iii) any Transfers by Artal to a member of its own Corporate Group and
thereafter among members of such Corporate Group, (iv) any Transfers of shares
of Common Stock pursuant to a pledge or similar agreement to secure debt of such
Person (incurred in good faith and not for purposes of avoiding the rights
granted to Heinz in this Section 2.3) owing to a bank or other BONA FIDE
financial institution, including, without limitation, any such Transfer upon the
exercise by such bank or other BONA FIDE financial institution of its rights
under such pledge or similar agreement to acquire beneficial or other ownership
of the shares of Common Stock pledged thereunder; (v) any Transfer of shares of
Common Stock made by an individual upon his or her death to his or her estate;
PROVIDED, that the beneficiaries of the estate are Persons specified in clause
(ii) above or (vi) any Transfer of Common Stock by Artal in a transaction which
does not constitute a Public Offering within 12 months of the Closing Date to
the extent such Transfer under this clause (vi), together with all other
Transfers made pursuant to this clause (vi) during such period, do not exceed
35% of the number of shares of Common Stock that Artal owned on the Closing
Date. Heinz may elect to participate in the proposed Transfer by delivering
written notice to Artal within 15 days after delivery of the Sale Notice. If
Heinz has elected to participate in such Transfer pursuant to the terms hereof,
Heinz shall be entitled to sell in the proposed
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Transfer, at the same price and on the same terms and conditions as Artal, up to
a number of shares of Common Stock being Transferred by Artal equal to the
product of (i) the number of such shares of Common Stock then beneficially owned
by Heinz MULTIPLIED BY, (ii) a percentage calculated by dividing the aggregate
number of shares of Common Stock which Artal proposes to sell in the aggregate
in such Transfer by the total number of shares of Common Stock then owned by
Artal in the aggregate; PROVIDED that the number of shares of Common Stock which
Heinz is permitted to sell pursuant to this Section 2.3(a) shall not include any
shares of Common Stock acquired by Heinz in connection with or after the
consummation of a Public Offering. If Heinz elects to participate in such
Transfer, it shall be obligated to pay its PRO RATA portion of the transaction
costs associated therewith. If the aggregate number of shares of Common Stock
Heinz elects and is permitted under the foregoing provisions to sell in the
proposed Transfer is, together with the aggregate number of shares of Common
Stock that Artal proposes to so sell and the aggregate number of shares of
Common Stock that any other Person elects and is permitted to sell pursuant to
any similar agreement, more than the total number of shares of Common Stock that
the transferee wishes to purchase, then each of Heinz and Artal shall be
entitled to sell to the transferee that number of shares of Common Stock equal
to the number of shares of Common Stock to be so purchased by the transferee
from all such selling parties (including any such other Person) multiplied by a
fraction, the numerator of which is the number of such shares of Common Stock
such selling party elects and is permitted under the foregoing provisions to
sell and the denominator of which is the aggregate number of shares of Common
Stock all such selling parties elect to sell and are permitted to sell under the
foregoing provisions and pursuant to any similar agreement. If and to the extent
that the transferee purchases any shares of Common Stock from Artal but does not
purchase, upon the same terms and conditions and for the same price, the shares
of Common Stock Heinz elects and is permitted under the foregoing provisions to
sell to the transferee, Artal shall, simultaneously with the sale of its shares
of Common Stock, purchase from Heinz, at the same price and on the same terms
and conditions as are applicable to the shares of Common Stock purchased from
Artal, such shares of Common Stock of Heinz. If Heinz has not delivered written
notice to Artal that Heinz elects to participate in a proposed Transfer within
the 15-day period provided above for the delivering of such notice, then Artal
shall have the right, for a period of 45 days after the expiration of such
15-day period, to consummate such proposed Transfer to the proposed transferee
named in the related Sales Notice and at the same price and on the same terms
and conditions stated in such Sales Notice. If, at the end of such 45-day
period, Artal has not consummated such
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proposed Transfer, the terms of this Section 2.3 shall again be in effect with
respect to such proposed Transfer.
(b) For purposes of Section 2.3(a), if Artal has Transferred all or
part of its shares of Common Stock to one or more of its Subsidiaries or other
similar entities controlled by it (a "SECURITIES HOLDING COMPANY"), a sale or
other disposition by Artal (by merger or otherwise) of an equity or beneficial
interest in a Securities Holding Company (other than a sale or disposition of
the nature set forth in the proviso to the first sentence of Section 2.3(a))
shall be treated as follows: (i) if such sale or other disposition is of 50% or
more of the equity or beneficial interest in such Securities Holding Company,
then such sale or other disposition shall be deemed to be a Transfer of all such
shares of Common Stock directly or indirectly owned or controlled by such
Securities Holding Company, and (ii) if such sale or other disposition is of
less than 50% of the equity or beneficial interest in such Securities Holding
Company, then such sale or other disposition shall be deemed to be Transfer of a
percentage of the number of shares of Common Stock directly or indirectly owned
or controlled by such Securities Holding Company equal to the percentage of the
equity or beneficial interest in such Securities Holding Company sold or
disposed of in such transaction. In either such event, if the Securities Holding
Company owns assets other than the shares of Common Stock, the consideration
paid to the transferring party for the Transfer and allocable to the shares of
Common Stock, in the absence of agreement of the parties to this Agreement,
shall be determined by an investment banking firm of national reputation
selected by mutual agreement of the parties hereto, PROVIDED, that such
investment banking firm shall not have a material direct or indirect financial
interest in or other relationship with any of the parties hereto or their
Affiliates.
(c) The exercise or nonexercise of the rights of Heinz in this Section
2.3 to participate in one or more Transfers by Artal shall not adversely affect
Heinz's rights to participate in subsequent Transfers by Artal.
2.4 DRAG ALONG.
(a) In the case that Artal proposes to make a Transfer of shares of
Common Stock (or of a Securities Holding Company) owned by it or its Affiliates
(the "TRANSFEROR GROUP") that would trigger Heinz's tag along rights pursuant to
Section 2.3 (assuming solely for the purpose of this Section 2.4(a) that the
exception contained in Section 2.3(a)(vi) shall not apply with respect to the
provisions of Section 2.3(a)) , Artal may elect, by so specifying in the Sale
Notice, to require Heinz to, and
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Heinz will, participate in such transaction on the same terms and conditions as
the Transferor Group with respect to a number of shares of Common Stock
determined as set forth below. Heinz shall be required to sell in the proposed
Transfer, at the same price and on the same terms and conditions as the
Transferor Group, a number of shares of Common Stock equal to the lesser of (i)
the product of (A) the number of shares of Common Stock then beneficially owned
by Heinz MULTIPLIED BY, (B) a percentage calculated by dividing the aggregate
number of shares of Common Stock which the Transferor Group proposes to sell in
the aggregate in such Transfer by the total number of shares of Common Stock
then owned by the Transferor Group and (ii) the number of such shares of Common
Stock specified by Artal in the relevant Sale Notice (such number being
hereinafter referred to as the "DRAG ALONG NUMBER").
(b) In connection with any proposed transaction described in Section
2.4(a) above, Heinz agrees (i) to consent to and raise no objections (other than
with respect to its rights under this Section 2.4) to, and to take all other
actions (including, without limitation, voting, or entering into written
consents with respect to, all of its shares of Common Stock in favor of such
transaction) necessary or desirable to cause, the consummation of such
transaction and (ii) to sell, Transfer and deliver its shares of Common Stock as
required by the terms of such transaction.
(c) If the Drag Along Number is less than the number of shares of
Common Stock Heinz may sell in the proposed Transfer pursuant to its rights
under Section 2.3, then, notwithstanding the exercise by Artal of their rights
under this Section 2.4, Heinz may elect to sell such additional shares of Common
Stock pursuant to its rights under Section 2.3.
2.5 CERTAIN TRANSFERS BY ARTAL.
Artal agrees that it will not effect any Transfer of Common Stock held
by it as described in clause (ii), (iii), (iv) or (v) of the proviso in the
first sentence of Section 2.3(a), unless such transferee has delivered to the
Company and Heinz an Investor Joinder whereby such transferee shall, by
execution thereof, agree to become and shall automatically be deemed to be an
Investor Stockholder subject to all of the rights (to the extent of the terms of
the assignment of such rights) and all of the obligations contained in this
Agreement applicable to Artal and to have made on the date thereof all
representations and warranties made on the date hereof by Artal (modified, if
necessary, to reflect the nature of such Person as a corporation, partnership,
other entity or natural person) .
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ARTICLE III
REGISTRATION RIGHTS
3.1 REGISTRATION RIGHTS. Concurrently herewith, the parties shall enter
into the Registration Rights Agreement.
ARTICLE IV
LEGENDS
4.1 LEGEND. (a) Each certificate or instrument evidencing shares of
Common Stock that is held by Heinz or a transferee thereof which is required to
execute an Investor Joinder pursuant to Section 2.1(a) of this Agreement on or
after the date hereof shall bear the following legend on the face thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT AND (A) PURSUANT TO A REGISTRATION STATEMENT
EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) PURSUANT
TO AN EXEMPTION FROM REGISTRATION THEREUNDER. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT.
(b) Each certificate or instrument evidencing shares of Common Stock,
which is issued to a transferee of Heinz which is not required to execute an
Investor Joinder pursuant to Section 2.1(a) of this Agreement (other than
transferees in a Public Offering) on or after the date hereof shall bear the
following legend on the face thereof:
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) PURSUANT TO AN EXEMPTION
FROM REGISTRATION THEREUNDER.
(c) Upon the sale of any shares of Common Stock pursuant to an
effective registration statement under the Securities Act or upon the
termination or expiration of this Agreement, the certificates or instruments
representing such shares of Common Stock shall be replaced, at the expense of
the Company, with certificates or instruments not bearing the legends required
by this Section 4.1.
(d) Until such time as the certificates or instruments evidencing
shares of Common Stock that are held by Heinz, or a
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transferee thereof which is required to execute an Investor Joinder pursuant to
Section 2.1(a) hereof, are no longer required to bear either of the legends
contained in Sections 4.1(a) and 4.1(b), Heinz and each such transferee agrees
that it will not Transfer any shares of Common Stock except (i) pursuant to a
registration statement under the Securities Act or (ii) pursuant to an exemption
from registration thereunder.
ARTICLE V
MISCELLANEOUS
5.1 TERMINATION. As to any particular Investor Stockholder, this
Agreement shall no longer be binding or of further force or effect as to such
Investor Stockholder, except as noted below, as of the date such Investor
Stockholder has Transferred all such Investor Stockholder's interest in the
Common Stock; PROVIDED, HOWEVER, that no such termination shall be effective if
such Investor Stockholder is in breach of this Agreement.
5.2 REMEDIES.
(a) Each Investor Stockholder shall have all rights and remedies
reserved for such Investor Stockholder pursuant to this Agreement, the Company's
Articles of Incorporation and By-Laws and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any law or equity. Any Person
having any rights under any provision of this Agreement will be entitled to
enforce such rights specifically, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law
or equity.
(b) It is acknowledged that it will be impossible to measure in money
the damages that would be suffered if the parties fail to comply with any of the
obligations herein imposed on them and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate
remedy at law. Any such Person shall, therefore, be entitled to injunctive
relief, including specific performance, to enforce such obligations, and if any
action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law.
5.3 CONSENT TO AMENDMENTS. Except as expressly set forth herein, the
provisions of this Agreement may only be
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amended or waived with the prior written consent of each of the parties hereto.
5.4 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, all provisions contained in this Agreement by or on behalf of any of the
parties hereto will bind and inure to the benefit of the respective successors
and permitted transferees of the parties hereto whether so expressed or not.
This Agreement is not intended to create any third party beneficiaries.
5.5 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such a manner as to be effective and valid under
applicable law. The parties agree that (i) the provisions of this Agreement
shall be severable in the event that any of the provisions hereof are held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable,
(ii) such invalid, void or otherwise unenforceable provisions shall be
automatically replaced by other provisions which are as similar as possible in
terms to such invalid, void or otherwise unenforceable provisions but are valid
and enforceable and (iii) the remaining provisions shall remain enforceable to
the extent permitted by law. To the extent there exists any inconsistency
between the provisions of this Agreement and the By-Laws of the Company, the
provisions of this Agreement shall govern in all instances.
5.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
5.7 NOTICES. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing or sent by facsimile and shall be deemed to have been given (i) when
personally delivered or sent by facsimile (with proof of receipt at the number
to which notices are required to be sent), (ii) one business day after being
sent by overnight courier (receipt confirmation requested) or (iii) five
business days after being mailed by certified or registered mail (return receipt
requested and postage prepaid) to the recipient. Such notices, demands and other
communications will be sent to the Company and each Investor Stockholder at the
address or addresses indicated on the signature pages hereto or on the Investor
Joinder (as the case may be), or to such other address or to the attention of
such other person as the recipient party has specified by prior written notice
under this Section 5.7 to the sending party.
5.8 GOVERNING LAW. This Agreement and the rights and duties of the
parties hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State
14
of New York.
5.9 FURTHER ASSURANCES. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the
provisions of this Agreement and the consummation of the transactions
contemplated hereby.
5.10 JURISDICTION; VENUE; PROCESS. (a) The parties to this Agreement
agree that jurisdiction and venue in any action brought by any party hereto
pursuant to this Agreement shall properly lie and shall be brought in any
federal or state court located in the State of New York. By execution and
delivery of this Agreement, each party hereto irrevocably submits to the
jurisdiction of such courts for itself or himself and in respect of its or his
property with respect to such action. The parties hereto irrevocably agree that
venue would be proper in such court, and hereby irrevocably waive any objection
that such court is an improper or inconvenient forum for the resolution of such
action.
(b) Artal hereby irrevocably and unconditionally designates and directs
▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, with offices on the date hereof at Northwestern University
School of Law, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its agent to
receive service of any and all process and documents on its behalf in any legal
action or proceeding related to this Agreement and agrees that service upon such
agent shall constitute valid and effective service upon Artal and that failure
of such agent to give any notice of such service to Artal shall not affect or
impair in any way the validity of such service or of any judgment rendered in
any action or proceeding based thereon.
5.11 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
* * * *
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WEIGHT WATCHERS INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
Title:
Address for Notices: With copies to:
Weight Watchers International, Inc ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: Chief Executive Officer Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇.▇. ▇▇▇▇▇ COMPANY
By:
-----------------------------------------
Name:
Title:
Address for Notices: With copies to:
▇.▇. ▇▇▇▇▇ Company ▇.▇. ▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: Treasurer and General Counsel Attn: Senior Vice President
16
ARTAL LUXEMBOURG S.A.
By:
-----------------------------------------
Name:
Title:
Address for Notices: With copies to:
Artal Luxembourg S.A. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
105, Grand-Rue Northwestern University School of Law
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 352-22-42-59-22 Facsimile No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: Managing Director
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
EXHIBIT 2.1(a)
INVESTOR JOINDER
By execution of this Investor Joinder, the undersigned agrees to become
a party to that certain Stockholders' Agreement, dated as of September 29, 1999
(the "Agreement"), among Weight Watchers International, Inc. (the "Company") and
certain stockholders of the Company, which stockholders included on such date
Artal Luxembourg S.A. and ▇.▇. ▇▇▇▇▇ Company. By execution of this Investor
Joinder, the undersigned shall have all rights, and shall observe all the
obligations, applicable to [fill in name of transferee] (except as otherwise set
forth in the Agreement), and to have made on the date hereof all representations
and warranties made by such Investor Stockholder, modified, if necessary, to
reflect the nature of the undersigned as a corporation, partnership, other
entity or natural person.
Name:
--------------------------------
Address for Notices: With copies to:
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
If an individual, are you presently married or separated?
yes no
----- -----
(If yes, you must also have your spouse execute a spousal consent in the form
attached hereto.)
Signature:
----------------------------------
Date:
---------------------------------------
CONSENT AND AGREEMENT OF SPOUSE
I, ______________________, am the spouse of ___________________, one of
the stockholders of Weight Watchers International, Inc., a Virginia corporation
(the "Company"). I acknowledge that my spouse is a party to that certain
Stockholders' Agreement, dated as of September 29, 1999, among the Company and
certain stockholders of the Company, which stockholders included on such date
Artal Luxembourg S.A. and ▇.▇. ▇▇▇▇▇ Company (the "Agreement"), and that I have
read the Agreement. I consent to, agree to, approve and ratify each and every
one of the terms and provisions of the Agreement, and I further agree to provide
all notices and information required of me in the time and manner set forth in
the Agreement.
Executed this ____ day of __________, 199_.
----------------------------------------
(Signature of Consenting Spouse)