Exhibit 4.5
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "AGREEMENT") dated as of March
17, 2000 is by and among Tabletop Holdings Inc., a Delaware corporation
(together with any corporate successor thereto, whether by merger,
consolidation, or otherwise, the "COMPANY"), Tabletop Holdings, LLC, a Delaware
limited liability company (the "LLC"), the Persons named in SCHEDULE I as
Mezzanine Investors (the "MEZZANINE INVESTORS") and the Persons named in
SCHEDULE I as Purchasers (collectively, the "PURCHASERS"). The Purchasers,
together with the Company, the LLC and the Mezzanine Investors, are hereinafter
referred to as the "PARTIES." In this Agreement, "SHAREHOLDERS" shall refer to
the LLC, the Mezzanine Investors and the Purchasers, and "SHARES" shall refer to
the shares of Common Stock (as defined below) held by the Shareholders
(including options to acquire shares of Common Stock) or which the Mezzanine
Investors have a right to purchase pursuant to the Warrants (as defined below).
WHEREAS, the LLC, the Mezzanine Investors and the Purchasers have
each committed to invest in the Company either through a contribution to capital
or the purchase of securities of the Company and such investments have enabled
Tabletop Acquisition Corp. to purchase the Business (as defined in that certain
Asset Purchase Agreement by and among Monsanto Company, Tablesweet Inc., ▇▇▇▇▇▇
Patients in Need Foundation and the Company, dated as of February 3, 2000 (the
"PURCHASE AGREEMENT"));
WHEREAS, the LLC is the holder of 8,550,000 shares of common stock,
par value $.01 per share, of the Company (the "COMMON STOCK") as of the date
hereof;
WHEREAS, the Mezzanine Investors are the holder of warrants to
purchase 450,000 shares of Common Stock (the "WARRANTS," and together with the
Common Stock, the "COMPANY SECURITIES") as of the date hereof;
WHEREAS, the Purchasers will be entitled to purchase up to an
aggregate of ____ shares of Common Stock as of the date hereof; and
WHEREAS, the Parties deem it desirable to provide for certain
rights and restrictions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound, agree
as follows:
1. PUBLIC OFFERING. In connection with an underwritten sale of
the Company's common equity securities pursuant to an effective registration
statement under the Securities Act of 1933, as amended, filed with the
Securities and Exchange Commission on Form ▇-▇, ▇-▇ or S-3 (or any successor
forms) as approved by the Board of Directors of the Company (a "PUBLIC
OFFERING"), each Party hereto shall vote for and consent to any actions required
with respect to such Public Offering (to the extent the Parties have any voting
or
consent right) and raise no objections against such Public Offering, and the
Parties shall take all reasonable actions in connection with the consummation of
such Public Offering as requested by the Board of Directors of the Company (the
"BOARD") (including, without limitation, consenting to and raising no objections
against any merger, consolidation or reorganization of the Company in connection
with a Public Offering (collectively, a "CORPORATE CONVERSION") and taking all
necessary or desirable actions in connection with the consummation of such
Corporate Conversion, including executing and delivering any shareholders
agreement or other document or agreement necessary to effect the same).
2. BOARD OF DIRECTORS. (a) The Board shall consist of nine
members, such number to be reduced as set forth herein.
(b) The Purchasers, collectively as a group, shall have the right
to designate one member to serve on the Board (the "PURCHASER DESIGNEE") so long
as the Purchasers hold at least 50% of the Shares (as adjusted by reason of any
stock dividend, stock split, split-up, recapitalization, merger or other change
in the corporate or capital structure of the Company) that the Purchasers have
committed to purchase within 10 business days after the Closing Date (as defined
in the Purchase Agreement). The Purchaser Designee shall be designated after
such 10 business day period after the Closing Date by the holders of a majority
of the Shares then held by the Purchasers. If the Purchasers are no longer
entitled to designate the Purchaser Designee the number of members of the Board
shall be reduced by one.
(c) ▇. ▇. ▇▇▇▇▇▇▇ Mezzanine Fund, L.P. and ▇. ▇. ▇▇▇▇▇▇▇ Market
Value Fund, L.P. (collectively, "▇. ▇. ▇▇▇▇▇▇▇"), shall have the right to
designate one member to serve on the Board (the "MEZZANINE DESIGNEE") so long as
50% of the initial principal amount of the "Notes" (as defined in the Securities
Purchase Agreement by and among Tabletop Acquisition Corp., the Company, ▇. ▇.
▇▇▇▇▇▇▇ Mezzanine Fund, L.P., ▇. ▇. ▇▇▇▇▇▇▇ Market Value Fund, L.P., The
Northwestern Mutual Life Insurance Company and Garmark Partners L.P. dated as of
March __, 2000) issued to ▇. ▇. ▇▇▇▇▇▇▇ on the Closing Date remains outstanding.
If ▇. ▇. ▇▇▇▇▇▇▇ is no longer entitled to designate the Mezzanine Designee the
number of members of the Board shall be reduced by one.
(d) The LLC shall have the right to designate seven members of
the Board (the "LLC DESIGNEES") so long as the LLC or one of its Affiliates
holds a majority of the issued and outstanding shares of Common Stock (it being
understood that MSD Capital and Carolwood Tabletop Holdings, LLC (the "LLC
INVESTORS") shall each have the right to designate one of the LLC Designees so
long as such LLC Investor or one of its Affiliates to whom its Membership
Interests (as defined in the LLC Agreement) in the LLC have been transferred in
accordance with the Amended and Restated Limited Liability Company Agreement of
the LLC, as the same may be amended from time to time (the "LLC AGREEMENT"), is
a member of the LLC).
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(e) Until the termination of this Agreement, each Shareholder
agrees to vote all of its Shares and any other shares of Common Stock over which
such Shareholder has voting control and to take all other necessary or desirable
actions within its control (including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and execution
of written consents in lieu of meetings) so that the Purchaser Designee, the
Mezzanine Designee and the LLC Designees shall be elected to, and continue to
serve on, the Board. Without limiting the generality of the preceding sentence,
the Shareholders agree not to vote to remove any of the Purchaser Designee, the
Mezzanine Designee or the LLC Designees so long as each of the Purchasers, the
Mezzanine Investor or the LLC, as applicable, is entitled to designate such
designee to the Board.
3. TRANSFER OF SHARES.
(a) Unless otherwise permitted by this Agreement, the
Shareholders shall not sell, assign, transfer, pledge, hypothecate, mortgage,
encumber, change the record or beneficial ownership or otherwise dispose of all
or any of their Company Securities (a "TRANSFER"). If a Transfer is permitted by
this Agreement, (i) such Shareholder will be responsible for compliance with all
conditions of transfer imposed by this Agreement and under applicable law and
for any expenses incurred by the Company for legal and/or accounting services in
connection with reviewing any proposed Transfer or issuing opinions in
connection therewith and (ii) any transferee pursuant to Section 3 shall agree
in writing with the Parties, as a condition to such Transfer, to be bound by all
of the provisions of this Agreement to the same extent as if such transferee
were such Shareholder.
(b) Notwithstanding the provisions of SECTION 3(a), a Shareholder
may effect a Transfer of its Company Securities (i) to an Affiliate of such
Shareholder; PROVIDED, THAT, in the case of such a Transfer to any member of the
immediate family of such Shareholder, or to a custodian, trustee or other
fiduciary for the account of such Shareholder or member of its immediate family,
such Transfer is made pursuant to a bona fide estate planning transaction; (ii)
by will or the laws of descent and distribution; (iii) in the case of the LLC,
to any member of the LLC; (iv) in the case of any Mezzanine Investor, to any
transferee of the Senior Subordinated Notes held by such Mezzanine Investor; (v)
to the Company; or (vi) to the LLC. For purposes of this Agreement, (i)
"AFFILIATE" means, with respect to any Person, any other Person that directly or
indirectly controls, is controlled by or is under common control with such
Person, a member of the immediate family of a natural Person or a trust for the
benefit of a natural Person or such Person's immediate family; (ii) "IMMEDIATE
FAMILY" shall have the meaning assigned to it in Instruction 2 to Paragraph (a)
of Item 404 of Regulation S-K under the Securities Act as in effect on the date
hereof; and (iii) "PERSON" means any partnership, corporation, limited liability
company, joint venture, trust, business trust, governmental agency, cooperative,
association,
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unincorporated association, individual or other entity, and the heirs,
executors, administrations, legal representatives, successors and assigns of
such person, as the context may require.
(c) Notwithstanding the provisions of SECTION 3(a), the LLC may
Transfer any of its Company Securities. In the event that the LLC desires to
sell to a proposed purchaser (an "LLC PURCHASER") any Shares other than in
accordance with SECTION 3(b) and other than the sale of Shares representing, in
the aggregate, not more than 8% of the Shares held by the LLC to any employee of
the Company or Tabletop Acquisition Corp. or any of their affiliates or to an
Employee (as defined in the Purchase Agreement) (a "COMPANY EMPLOYEE"): (i) each
Mezzanine Investor (or any permitted transferee of such Mezzanine Investor)
shall have the right, but not the obligation, to sell to the LLC Purchaser, as a
condition to such sale by the LLC, a total amount of Shares (after the exercise
of Warrants for such number of Shares) equal to the PRODUCT of (A) the aggregate
number of Shares proposed to be sold by the LLC MULTIPLIED by (B) a fraction
with a numerator equal to the amount of Shares that such Mezzanine Investor (or
any permitted transferee of such Mezzanine Investor) owns and a denominator
equal to the aggregate amount of shares of Common Stock (in each case, assuming
the exercise of the Warrants held by such Mezzanine Investor (or any permitted
transferee of such Mezzanine Investor)); and (ii) in the event such sale results
in the sale of at least 51% of the shares of Common Stock issued and
outstanding, each Purchaser (or any permitted transferee of such Purchaser)
shall have the right, but not the obligation, to sell to the LLC Purchaser, as a
condition to such sale by the LLC, a total amount of Shares (after the exercise
of any options to acquire Shares) equal to the PRODUCT of (A) the aggregate
number of Shares proposed to be sold by the LLC MULTIPLIED by (B) a fraction
with a numerator equal to the amount of Shares that such Purchaser (or any
permitted transferee of such Purchaser) owns and a denominator equal to the
aggregate amount of shares of Common Stock (in each case, assuming the exercise
of any options held by such Purchaser). If such Mezzanine Investor (or any
permitted transferee of such Mezzanine Investor) or such Purchaser (or any
permitted transferee of such Purchaser), if applicable, desires to so
participate in any sale under this SECTION 3(c), each such person shall give
notification of such desire to the Company and the LLC confirming such desire.
The LLC, such Mezzanine Investor (or any permitted transferee of such Mezzanine
Investor) or such Purchaser (or any permitted transferee of such Purchaser), if
applicable, shall sell to the LLC Purchaser all, or at the option of the LLC
Purchaser, any part of the Shares proposed to be sold by them pursuant to this
SECTION 3(c) upon the same terms and conditions; PROVIDED, HOWEVER, that any
purchase of less than all of such Shares by the LLC Purchaser shall be made from
the LLC, such Mezzanine Investor (or any permitted transferee of such Mezzanine
Investor) and such Purchaser, (or any permitted transferee of such Purchaser) if
applicable, pro rata based upon the relative amount of Shares that the LLC, such
Mezzanine Investor (or any permitted transferee of such Mezzanine Investor) and
such Purchaser (or any permitted transferee of such Purchaser), if applicable,
are otherwise entitled to sell pursuant to this SECTION 3(c).
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(d) (i) If any Person , together with its Affiliates
(collectively, the "CONTROLLING PERSON"), other than Pegasus Partners
II, L.P. or its Affiliates to whom its Membership Interests (as defined
in the LLC Agreement) have been transferred in accordance with the LLC
Agreement (collectively, "PEGASUS"), or a transferee of the Membership
Interests of Pegasus pursuant to Section 6.2(b) of the LLC Agreement,
becomes the owner of more than 80% of the Membership Interests, then
each Mezzanine Investor (or any permitted transferee of such Mezzanine
Investor) shall have the right, but not the obligation, to sell to such
Controlling Person, as a condition to such Controlling Person purchasing
or otherwise acquiring the Membership Interests, the acquisition of
which causes such Controlling Person to own more than 80% of the
Membership Interests (the "CONTROL INTERESTS"), all of its Shares (after
the exercise of Warrants for such Shares) at an aggregate purchase price
equal to the fair market value.
(ii) If Pegasus desires to sell any Membership Interests such that
immediately after such sale Pegasus, together with any Person to whom
Pegasus has transferred Membership Interests pursuant to Section 6.2(b)
of the LLC Agreement (the "PEGASUS HOLDERS"), will own less than 50% of
the Membership Interests owned by Pegasus on the date hereof, then each
Mezzanine Investor (or any permitted transferee of such Mezzanine
Investor) shall have the right, but not the obligation, to sell to the
Person purchasing or otherwise acquiring the Membership Interests (the
"ACQUIRING PERSON"), all of the Shares owned by it (after the exercise
of Warrants for such Shares) at an aggregate purchase price equal to the
fair market value of such Shares.
(iii) If the only material asset of the LLC is the Shares held by
the LLC, "fair market value" shall equal (A) the percentage of the
outstanding Common Stock represented by the Shares held by such
Mezzanine Investor (or such permitted transferee of such Mezzanine
Investor), TIMES (B) the price per Control Interest or Membership
Interest, as applicable, paid by the Controlling Person or the Acquiring
Person, as applicable, multiplied by 100. If the LLC owns material
assets other than the Shares held by the LLC, "fair market value" shall
be determined by a nationally recognized investment banking firm or
other third party appraiser selected by the Board, such determination to
be subject to the reasonable approval of the Board.
(e) (i) If any Shareholder other than the LLC desires to Transfer
Shares (such Shareholder being herein referred to as the "TRANSFEROR
SHAREHOLDER"), other than in accordance with SECTION 3(b), then such
Transfer must be to a Person who shall have made a BONA FIDE offer to
purchase such Shares and the Transferor Shareholder shall promptly
furnish to all other Shareholders (the "SHAREHOLDER OFFEREES") and the
Company a Notification (the "NOTICE OF TRANSFER") of such desire to
Transfer such Shares and of the BONA fide offered price for such Shares
proposed to be Transferred, the method of
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payment of such offered price, the identity of the prospective purchaser
or purchasers (the "PROPOSED PURCHASER") and all other pertinent terms
and conditions of such BONA FIDE offer.
(ii) For a period of 15 days commencing on the date of its receipt
of the Notice of Transfer, the Shareholder Offerees shall have the right
to purchase all or any portion of the Shares proposed to be Transferred
upon the same terms and conditions and at the BONA FIDE offer price as
described in the Notice of Transfer. The specific portion of such Shares
which each Shareholder Offeree shall be so entitled to purchase shall be
determined on a PRO RATA basis in proportion to the respective Shares of
each Shareholder Offeree desiring to purchase the offered Shares
available for purchase. Any Shareholder Offeree desiring so to purchase
Shares shall give Notification of such desire to the Transferor
Shareholder and the Company and all other Shareholder Offerees
confirming such desire and the proposed terms of purchase. In the event
that any Shareholder Offeree does not purchase its full PRO RATA share
of any such Shares proposed to be Transferred, such unpurchased Shares
shall be offered by the Transferor Shareholder to the Shareholder
Offerees subscribing to purchase Shares on a PRO RATA basis on similar
terms of purchase. In the event that the Shareholder Offerees do not
purchase, in accordance with the provisions of this clause (ii), all of
the Shares proposed to be Transferred as described in the Notice of
Transfer, the Company shall have the exclusive right by a vote of the
disinterested directors, to agree to purchase all or any portion of such
Shares proposed to be Transferred that remain after the application of
this SECTION (c)(ii) upon the same terms and conditions as described in
the Notice of Transfer. If the Company desires to so purchase such
Shares it shall give Notification of such desire to the Transferor
Shareholder and all other Shareholders confirming such desire and the
proposed terms of purchase. No such Shares shall be made available for
purchase by any non-Shareholder pursuant to the remaining provisions of
this SECTION 3 unless and until all Shareholder Offerees and the Company
shall have had an opportunity to purchase all such Shares in accordance
with the provisions of this clause (ii).
(iii) The closing of any purchase by the Company or any Shareholder
Offerees of any offered Shares as provided in this SECTION 3(e) shall
take place on such date as designated by the Company or such Shareholder
Offeree occurring within 30 days after receipt by the Transferor
Shareholder of the last Notification to be provided to the Transferor
Shareholder in accordance with the terms hereof from the Company or such
Shareholder Offeree of the exercise of the Company's or such Shareholder
Offeree's right to purchase hereunder. At such closing, the Transferor
Shareholder shall deliver to the Company or such Shareholder Offeree, as
the case may be, such documentation as the Company or such Shareholder
Offeree shall reasonably request to evidence the Transfer
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of such offered Shares, against payment therefor by the Company or such
Shareholder Offeree.
(iv) In the event that, after compliance with the foregoing
provisions of this SECTION 3(e), the Company and the Shareholder
Offerees, taken together, fail to purchase all of the Shares proposed to
be Transferred by the Transferor Shareholder, then for a period of 60
days commencing on the date that neither the Company nor any Shareholder
Offeree remains entitled to exercise its right to purchase any offered
Shares in accordance with the foregoing provisions of this SECTION 3(e),
the Transferor Shareholder may Transfer to the Proposed Purchaser all of
the Shares described in the Notice of Transfer; PROVIDED, HOWEVER, that
any such Transfer to the Proposed Purchaser must be made for the
consideration and upon the terms and conditions set forth in the Notice
of Transfer. If the Transferor Shareholder shall not consummate the
Transfer of such Shares to the Proposed Purchaser within such 60-day
period, such Shares shall remain subject to the provisions of this
Agreement and the Transferor Shareholder shall not thereafter Transfer
any such Shares to any Person without again first complying with all of
the provisions of this Agreement.
(f) Any purported Transfer of any Company Securities in violation
of the provisions of this Agreement shall be wholly void and shall not
effectuate the Transfer contemplated thereby. Notwithstanding anything contained
herein to the contrary, no Shareholder may Transfer any Company Securities in
violation of any provision of this Agreement or in violation of the Securities
Act of 1933, as amended, and any applicable state securities laws.
(g) BRING ALONG RIGHTS. Notwithstanding the provisions of SECTION
3(a), if the LLC proposes to sell at least 50% of the shares of Common Stock
held by it and the purchaser (or any group of purchasers that would, under
Section 13(d)(3) of the Securities Exchange Act of 1934, be deemed a "person")
in such transaction will, after consummation thereof (taking into account the
purchase of Shares by such purchaser pursuant to the next clause of this
sentence), own over 50% of the shares of Common Stock, the LLC may specify for
each other Shareholder, as applicable: (i) a required amount of shares of Common
Stock that such Shareholder must sell or (ii) a required amount of shares of
Common Stock that such Shareholder has a right to purchase pursuant to the
Warrants that such Shareholder must purchase and sell. Such amount shall be
equal to the amount of Shares (assuming the exercise of the Warrants) owned by
such Shareholder multiplied by a fraction the numerator of which is the
aggregate amount of shares of Common Stock proposed to be sold by the LLC and
the denominator of which is the aggregate amount of shares of Common Stock owned
by the LLC at the time the notification of the proposed Transfer was given. Each
other Shareholder agrees that it shall sell shares of Common Stock on the terms
of this SECTION 3(g), when and if the LLC sells shares of Common Stock, in
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accordance with any notification of a proposed Transfer that it receives from
the LLC; provided that each such Shareholder (i) shall bear the same proportion
of the expenses of sale as the amount shares of Common Stock sold by such
Shareholder bears to the total amount of shares of Common Stock sold, and (ii)
shall sell shares of Common Stock on the same terms and conditions as those
applicable to the sale by the LLC.
(h) Upon the termination of employment with the Company of any
Purchaser for any reason, the Company may, at its election, purchase, and if
such election is made by the Company, the Purchaser shall sell, all of the
shares of Common Stock then owned by such Purchaser at a purchase price per
share equal to the fair market value of a share, as determined by the Board in
its reasonable judgement, as of the date of termination of employment.
4. PREEMPTIVE RIGHTS.
(a) In the event that the Company wishes to issue, grant or sell
any shares of Common Stock (other than (i) shares of Common Stock issued to a
Person in connection with a strategic investment representing more than 10% of
the shares of Common Stock measured on a fully diluted basis as determined by
the Board, (ii) shares of Common Stock issued pursuant to a stock option plan of
the Company representing, in the aggregate, not more than 10% of the Common
Stock outstanding or (iii) shares of Common Stock issued to a Company Employee
representing, in the aggregate, not more than 10% of the Common Stock
outstanding; PROVIDED, HOWEVER, that the aggregate amount of shares of Common
Stock deemed to be issued to a Company Employee for purposes of this clause
(iii) shall include any Shares sold by the LLC to any Company Employee (and
shall include any Shares sold by the LLC to a Company Employee as contemplated
by the second sentence of Section 3(c) of this Agreement), but shall not include
any shares of Common Stock issued pursuant to a stock option plan of the
Company), the Company shall give the Shareholders notice (the "ISSUE NOTICE") in
writing stating, as to such proposed issuance, grant or sale, the amount of
Shares to be issued, granted or sold, the cash price, if any, at which such
Shares are to be issued, granted or sold (the "PROPOSED PRICE"), the percentage
of such Shares that each Shareholder shall have the right to acquire (determined
as set forth below), and any other terms and conditions pertaining to such
proposed issuance, grant or sale (the "PROPOSED CONDITIONS"). The Issue Notice
shall be deemed to constitute an irrevocable offer (open to acceptance for a
period of 15 days from the date of receipt by the Shareholders of the Issue
Notice (the "ISSUE PERIOD")) to the Shareholders to participate, on a PRO RATA
basis, in such issuance, grant or sale. Each Shareholder shall have the right to
acquire up to that amount of Shares equal to its portion, calculated on a
fully-diluted basis, of the Shares of all of the Shareholders at the Proposed
Price and otherwise upon the Proposed Conditions.
(b) Each of the Shareholders may elect to participate in such
issuance, grant or sale by delivering a written notice of such participation
(which notice shall indicate the amount
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of Shares such Shareholder elects to acquire, which may be all or any portion of
the Shares such Shareholder is entitled to acquire and, in the case of a sale,
the date, which shall be a Business Day within 15 days after the notice of
participation is given, on which such Shareholder elects to close such purchase)
on or prior to the last day of the Issue Period.
(c) The closing of a purchase of Shares by a Shareholder shall
take place at the principal office of the Company on the date specified in such
Shareholder's notice of participation. At such closing, the Shareholder shall
deliver a bank check or wire transfer of immediately available funds to the
Company in the amount of the purchase price applicable to the Shares being
purchased by such Shareholder.
(d) Upon the expiration of the Issue Period described above, the
Company will be free to issue, grant or sell, for a period of 120 days following
the termination of the Issue Period, such Shares which the Shareholders have not
elected to so acquire at a price not less than the Proposed Price and otherwise
on terms and conditions no more favorable to the acquirors thereof than the
Proposed Conditions. Any Share not issued, granted or sold by the Company within
such 120-day period shall once again be subject to all the terms of this SECTION
4.1(g) and must be offered to the Shareholders pursuant to this Section prior to
any offering thereof to others. Any Person who shall acquire Shares pursuant to
this SECTION 4.1(g) and who is not otherwise a party to this Agreement, shall as
a condition to acquiring such Shares be required to execute a counterpart of
this Agreement. Upon execution of such counterpart, the acquiring Person shall
have, to the extent of the Share acquired, the rights and powers and shall be
subject to the restrictions and liabilities of a Shareholder under this
Agreement.
5. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. The Parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court within the
United States, this being in addition to any other remedy to which they are
entitled at law or in equity.
(b) EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
Party incurring such expense.
(c) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
documents delivered pursuant hereto contain the entire understanding of the
Parties hereto with regard to the subject matter contained herein or therein,
and supersede all prior agreements, understandings or letters of intent between
or among any of the Parties hereto. This Agreement shall not be
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amended, modified or supplemented without the written consent of each of (i) the
Company, (ii) the LLC (which consent shall have been approved by Members holding
at least 80% of the Membership Interests if such amendment, modification or
supplement adversely affects the Members as a whole; PROVIDED, HOWEVER, that if
such amendment, modification or supplement specifically adversely affects a
Member (as opposed to the Members as a whole), the consent of such Member shall
be required unless such Member is a "Defaulting Member" as defined in the LLC
Agreement), (iii) in the event that such amendment, modification or supplement
adversely affects the Mezzanine Investors, the holders of a majority of the
Shares then held by the Mezzanine Investors (measured on a fully diluted basis)
and (iv) in the event that such amendment, modification or supplement adversely
affects the Purchasers, the holders of a majority of the Shares then held by the
Purchasers.
(d) WAIVERS. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the Party or Parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to any Party, it is
in writing signed by an authorized representative of such Party. The failure of
any Party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any Party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
(e) PARTIAL INVALIDITY. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such provision or provisions or any other provisions hereof,
unless such a construction would be unreasonable.
(f) EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but all
of which shall be considered one and the same agreement, and shall become
binding when one or more counterparts have been signed by each of the Parties
hereto and delivered to each of the Parties hereto.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to the conflicts of
law provisions) of the State of Delaware.
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(h) EXECUTION OF DOCUMENTS. Each Party agrees to execute all
documents necessary to carry out the purpose of this Agreement and to cooperate
with each other for the expeditious filing of any and all documents and the
fulfillment of the terms of this Agreement.
(i) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the Parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the Parties hereto
whether so expressed or not.
(j) DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT CONSTRUCTION.
The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and singular forms of nouns, pronouns, and
verbs shall include the plural and vice versa. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include," "includes" or
"including" in this Agreement shall be by way of example rather than by
limitation. The use of the words "or," "either" or "any" shall not be exclusive.
The Parties hereto have participated jointly in the negotiating and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted by each
of the Parties hereto, and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
(k) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when (a) delivered
personally to the recipient, (b) telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service (charges prepaid)
that same day) if telecopied before 5:00 p.m. New York City time on a business
day, and otherwise on the next business day, or (c) one business day after being
sent to the recipient by reputable overnight courier service (charges prepaid).
Such notices, demands and other communications shall be sent to the Company at
the address set forth below and to the other Parties at such address as
indicated by the Company's records, or at such address or to the attention of
such other Person as the recipient Party has specified by prior written notice
to the sending Party. The Company's address is:
c/o Pegasus Partners II, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Uri
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(l) DELIVERY BY FACSIMILE. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any Party hereto or to any such agreement or instrument, each
other Party hereto or thereto shall re-execute original forms thereof and
deliver them to all other Parties. No Party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such Party forever waives any
such defense.
(m) THIRD PARTY BENEFICIARIES. Each of the Parties recognizes and
agrees that each of MSD Capital and Carolwood Tabletop Holdings, LLC are express
third party beneficiaries of SECTION 2(d) of this Agreement.
(n) TERM. This Agreement shall continue at all times hereafter
and terminate only upon the first to occur of the following: (i) the date on
which the Company completes the distribution to the Shareholders of all net
proceeds resulting from the sale of all or substantially all of its assets; (ii)
the effective date of a merger or consolidation if stockholders of the Company
own, immediately following such merger or consolidation, less than 50% of the
equity securities of the surviving corporation; or (iii) the consummation by the
Company of a Public Offering.
(o) LEGEND. Each certificate evidencing any shares of Common
Stock and Warrants shall bear a legend substantially as follows:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER SUCH ACT
AND ALL SUCH APPLICABLE LAWS OR ANY EXEMPTION FROM REGISTRATION IS
AVAILABLE."
"THE SECURITY REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
CORPORATION AND THE SECURITYHOLDER, A COPY OF WHICH IS ON FILE WITH
THE
12
SECRETARY OF THE CORPORATION. THIS CONDITION TO TRANSFER SHALL
TERMINATE AS SET FORTH IN SUCH AGREEMENT. THE VOTING OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS ALSO SUBJECT TO
CERTAIN TERMS AND CONDITIONS SET FORTH IN SUCH AGREEMENT."
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
TABLETOP HOLDINGS INC.
By: /s/ ▇▇▇▇▇ Uri
--------------------------------
Name: ▇▇▇▇▇ Uri
Its: Vice-President
TABLETOP HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ Uri
--------------------------------
Name: ▇▇▇▇▇ Uri
Its: Vice-President
Shareholders' Agreement
MEZZANINE INVESTORS:
▇.▇. ▇▇▇▇▇▇▇ MEZZANINE FUND, L.P.
By: ▇▇▇▇▇▇▇ ▇▇, L.L.C.,
its General Partner
By: /s/ Illegible
---------------------------------------
Name:
A Managing Member
▇.▇. ▇▇▇▇▇▇▇ MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, Ltd.,
its General Partner
By: /s/ Illegible
---------------------------------------
Name:
A Managing Member
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Its Authorized Representative
GARMARK PARTNERS, L.P.
By: Garmark Associates L.L.C.,
its General Partner
By: /s/ Illegible
---------------------------------------
Authorized Signatory
By: /s/ Illegible
---------------------------------------
Authorized Signatory