Exhibit 4.5
EAGLE FAMILY FOODS HOLDINGS, INC.
STOCKHOLDERS AGREEMENT
Stockholders Agreement, dated as of this 23rd day of January, 1998, by
and among GE Investment Private Placement Partners II, a Limited Partnership
("GEI"), Warburg, ▇▇▇▇▇▇ Ventures, L.P., a Delaware limited partnership
("Warburg" and, together with GEI, the "Institutional Investors"); the
individuals whose names and addresses appear from time to time on Schedule I
hereto (the "Management Investors" and, together with the Institutional
Investors, the "Investors"); and Eagle Family Foods Holdings, Inc., a Delaware
corporation (the "Company"). Certain capitalized terms used in this Agreement
are defined in Section 6 hereof.
R E C I T A L S
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WHEREAS, certain of the Investors, pursuant to the terms of certain
subscription agreements with the Company dated as of even date herewith
(collectively, the "Subscription Agreements"), have agreed to purchase shares of
the Common Stock, par value $0.01 per share, of the Company (the "Common Stock")
and the Series A Non-Voting Preferred Stock, par value $0.01 per share, of the
Company (the "Preferred Stock"); and
WHEREAS, the Company has granted the Investors certain registration
rights with respect to the Common Stock and Preferred Stock held by them
pursuant to a registration rights agreement, dated as of even date herewith (the
"Registration Rights Agreement"); and
WHEREAS, the Investors and the Company desire to promote their mutual
interests by agreeing to certain matters relating to the operations of the
Company and the disposition and voting of the shares of Common Stock and
Preferred Stock purchased by the Investors pursuant to the Subscription
Agreements, together with any other shares of Common Stock or Preferred Stock
acquired by them (other than shares of Common Stock issued under the Company's
1998 Stock Incentive Plan (as it may be amended from time, the "Stock Plan"))
(collectively, the "Shares").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. COVENANTS OF THE PARTIES
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(a) Legends. The certificates evidencing the Shares acquired by the
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Investors pursuant to the Subscription Agreements or their permitted transferees
will bear the legend provided for
therein as well as following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby are subject to the terms of that
certain Stockholders Agreement, dated as of January 23, 1998, by and
among the Company and certain holders of the Company's Common Stock
and Preferred Stock, including certain preemptive rights, restrictions
on transfer and rights of co-sale. A copy of such Stockholders
Agreement has been filed with the Secretary of the Company and is
available upon request."
(b) Election of Directors.
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(i) As of the date hereof, the Board of Directors of the Company (the
"Board") will consist of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇ O'▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇. From and after the date hereof, the Investors and the Company shall take
all action within their respective power, including but not limited to, the
voting of all shares of capital stock of the Company owned by them, required to
cause the Board to consist of nine members or such other number as the Board may
from time to time establish, and at all times throughout the term of this
Agreement to include (A) as long as Warburg owns beneficially (within the
meaning of Rule 13d-3 under the Exchange Act) (1) at least twenty percent (20%)
of the Common Stock, three representatives designated by Warburg, (2) at least
fifteen percent (15%) of the Common Stock, two representatives designated by
Warburg and (3) at least ten percent (10%) of the Common Stock, one
representative designated by Warburg (each, a "Warburg Director"), (B) as long
as GEI owns beneficially (within the meaning of Rule 13d-3 under the Exchange
Act) (1) at least twenty percent (20%) of the Common Stock, three
representatives designated by GEI, (2) at least fifteen percent (15%) of the
Common Stock, two representatives designated by GEI and (3) at least ten percent
(10%) of the Common Stock, one representative designated by GEI (each, a "GEI
Director" and, together with each Warburg Director, the "Institutional
Directors"), (C) as long as Warburg and GEI collectively own beneficially
(within the meaning of Rule 13d-3 under the Exchange Act) at least fifty percent
(50%) of the Common Stock, Warburg and GEI shall collectively have the right to
designate that number of representatives as shall constitute a majority of the
Board, (D) ▇▇▇▇▇, who shall be entitled to be a member of the Board until
termination of his employment in accordance with the terms of the ▇▇▇▇▇
Employment Agreement, (E) ▇▇▇▇▇▇, who shall be entitled to be a member of the
Board until termination of his employment in accordance with the terms of the
▇▇▇▇▇▇ Employment Agreement, and (F) at least one director who is neither an
officer or employee of the Company nor an officer, employee or Affiliate of GEI
or Warburg (the "Independent Director"). The Independent Director shall be
selected by the unanimous approval of the Board. The Board shall
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take such action as may be necessary from time to time to cause the board of
directors of Eagle Family Foods, Inc., a wholly owned subsidiary of the Company,
to be identical to that of the Board.
(ii) In the event that any Institutional Director is unable to
serve, or once having commenced to serve, is removed or withdraws from the Board
(a "Withdrawing Director"), such Withdrawing Director's replacement (the
"Substitute Director") will be designated by the Institutional Investor having
nominated such Institutional Director. An Institutional Director may be removed,
with or without cause, by the Institutional Investor having nominated such
Institutional Director, and such Institutional Investor shall thereafter have
the right to nominate a replacement for such Institutional Director. The
Investors and the Company agree to take all action within their respective
power, including but not limited to, the voting of all shares of capital stock
of the Company owned by them, to cause the election of such Substitute Director
promptly following his or her nomination pursuant to this Section 1(b)(ii).
(iii) Without the consent of a majority of the Board, which majority
shall include, as long as GEI is entitled to designate a director pursuant to
this Section 1, at least one GEI Director and, as long as Warburg is entitled to
designate a director pursuant to this Section 1, at least one Warburg Director,
the Company shall not, and shall cause Eagle Family Foods, Inc. and each of
their respective Subsidiaries not to:
(A) approve any annual budget (the "Budget") or any material
amendment or modification thereto;
(B) make or incur any capital expenditures or investments not
contemplated by the Budget in excess of $500,000;
(C) merge or consolidate with any other Person (other than a merger
or consolidation with a wholly owned subsidiary of the Company);
(D) sell or contribute, other than sales of inventory in the
ordinary course of business, assets in excess of $500,000;
(E) (1) liquidate or dissolve, (2) file, or consent by answer or
otherwise to the filing against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization, moratorium or other
similar law of any jurisdiction, (3) make an assignment for the benefit of its
creditors, or (4) consent to the appointment of a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect to any
substantial part of its property;
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(F) acquire any business (whether by acquisition of assets, stock or
otherwise);
(G) issue any equity securities other than Plan Stock (each, as
defined in Section 1(c)(i) hereof);
(H) incur any indebtedness for borrowed money, other than
indebtedness outstanding on the date hereof (including additional borrowings
permitted under the facilities in effect on the date hereof);
(I) enter into any new line of business;
(J) enter into any joint venture or strategic alliance with any
Person;
(K) enter into any agreement having a duration in excess of one (1)
year or cumulative obligations in excess of $1,000,000;
(L) pay or declare any dividend, or repurchase or redeem any shares
of capital stock;
(M) amend or modify the Company's Certificate of Incorporation or
bylaws;
(N) amend, modify or terminate any employment agreement between the
Company and any executive officer of the Company;
(O) grant any stock options or other equity-based awards, or
authorize any senior management compensation plans or arrangements;
(P) hire or fire any executive officer of the Company;
(Q) enter into any transaction with any officer, director or
Affiliate of the Company (including, without limitation, GEI or Warburg);
(R) make any loan or guarantee the indebtedness of any Person, except
in the ordinary course of business;
(S) enter into, amend, modify or terminate any agreement, including
any collective bargaining agreement, with any union;
(T) approve or adopt (other than the Stock Plan), amend, modify or
terminate any stock plan, 401(k) plan, defined benefit or defined contribution
plan or similar employee benefit plan; or
(U) enter into any agreement to do any of the foregoing.
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(c) Subscription Right.
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(i) If at any time after the date hereof, the Company proposes to
sell in any non-public offering equity securities of any kind (the term "equity
securities" shall include for these purposes any warrants, options or other
rights to acquire equity securities and debt securities convertible into equity
securities, voting or other rights, and derivative securities of equity
securities) of the Company (except (A) for grants or issuances of equity
securities pursuant to the Stock Plan or any other incentive plan for the
Company's or any of its Subsidiaries' directors or employees (collectively,
"Plan Stock"), (B) to the public in a firm commitment underwriting pursuant to a
registration statement filed under the Securities Act, or (C) pursuant to the
acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets or other form of reorganization), then, as to
each Initial Investor who then holds shares of capital stock of the Company, the
Company shall:
(1) give written notice setting forth in reasonable detail (I)
the designation and all of the terms and provisions of the equity
securities proposed to be issued (the "Proposed Securities"), including,
where applicable, the voting powers, preferences and relative
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof and interest or dividend rate and
maturity; (II) the price and other terms of the proposed sale of such
Proposed Securities; (III) the amount of the Proposed Securities proposed
to be issued; and (IV) such other information as may be reasonably
required in order to evaluate the proposed issuance; and
(2) offer to sell to each such Initial Investor a portion of
the Proposed Securities equal to a percentage determined by dividing (I)
the number of shares of Preferred Stock then held by such Initial
Investor (and if no shares of Preferred Stock are outstanding, then the
number of shares of Common Stock (other than Plan Stock)) by (II) the
total number of shares of Preferred Stock held by all the Initial
Investors then outstanding (and if no shares of Preferred Stock are
outstanding, then the number of shares of Common Stock (other than Plan
Stock)).
(ii) Each such Initial Investor must exercise its purchase rights
hereunder within ten (10) days after receipt of such notice from the Company.
If all of the Proposed Securities offered to such Initial Investors are not
fully subscribed by such Initial Investors, such remaining Proposed Securities
will be reoffered to those Initial Investors purchasing their full allotment
upon the terms set forth in this Section 1(c) (with an allocation based on the
respective percentages of the aggregate number of shares of Preferred Stock held
by such Initial
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Investors and, if no shares of Preferred Stock are outstanding, then of the
aggregate number of shares of Common Stock (other than Plan Stock)), until all
such Proposed Securities are fully subscribed for or until all such Initial
Investors have subscribed for all such Proposed Securities which they desire to
purchase, except that such Initial Investors must exercise their purchase rights
within five days after receipt of all such reoffers. To the extent that the
Company offers two or more equity securities in units, Initial Investors must
purchase such units as a whole and will not be given the opportunity to purchase
only one of the equity securities making up such unit.
(iii) Upon the expiration of the offering periods described above,
the Company will be free to sell such Proposed Securities that the Initial
Investors have not elected to purchase during the ninety (90) days following
such expiration on terms and conditions no more favorable to the purchasers
thereof than those offered to such Initial Investors. Any Proposed Securities
offered or sold by the Company after such 90-day period must be reoffered to the
Initial Investors pursuant to this Section 1(c). The election by an Initial
Investor not to exercise its subscription rights under this Section 1(c) in any
one instance shall not affect its right (other than in respect of a reduction in
its percentage holdings) as to any subsequent proposed issuance. Any sale of
equity securities by the Company without first giving the Initial Investors the
rights described in this Section 1(c) shall be void and of no force and effect
and the Company shall cause any correction required to be fully effected.
(iv) Notwithstanding anything contained in this Section 1(c), in the
event that the issuance and sale of the Proposed Securities to any Initial
Investor would require either a registration under the Securities Act or the
preparation of a disclosure document pursuant to Regulation D under the
Securities Act (or any successor regulation) or a similar provision of any state
securities law, then, at the option of the Board, such Initial Investor or
Initial Investors may be excluded from the rights provided by this Section 1(c).
(d) No Inconsistent Agreements.
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Each of the Investors and the Company agrees that it will not and will
not permit any Affiliate to grant any proxy or enter into or agree to be bound
by any voting trust with respect to its shares of capital stock of the Company
or enter into any stockholder agreements or arrangements of any kind with any
person with respect to its shares of capital stock of the Company, in any such
case in a manner that is inconsistent with the provisions of this Agreement.
2. TRANSFER OF STOCK BY MANAGEMENT INVESTORS. Without the approval
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of the Board, no Management Investor shall Transfer any Shares, or any
beneficial interest therein, other than in
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accordance with such Management Investor's employment agreement with the Company
or any restricted stock purchase agreement between such Management Investor and
the Company. Notwithstanding the foregoing, if, pursuant to the Registration
Rights Agreement, a Management Investor is prevented by the Company's
underwriter or underwriters from Transferring Shares in a public offering of
Shares by the Company in which the Institutional Investors Transferred Shares,
then following such public offering, and after the expiration of any applicable
restrictions on the Transfer of such Management Investor's Shares under
agreements not to sell, "lock-up" agreements or similar agreements to which the
Management Investor is bound, such Management Investor shall be entitled to
Transfer his pro rata portion of Shares (to be calculated pursuant to the
following sentence) that he would otherwise have been entitled to Transfer in
such public offering without the approval of the Board, provided that (a) such
Management Investor informs the Board in writing of his intention to Transfer
Shares at least seven days in advance of the proposed Transfer, such notice to
include the number of Shares he intends to Transfer and (b) such Management
Investor complies with all applicable securities laws, including, without
limitation, compliance with the volume and time limitations imposed by Rule 144
of the Securities Act of 1933, as amended. For purposes of the foregoing
sentence, such Management Investor's pro rata portion of Shares shall be equal
to (a) the product of (i) the aggregate number of Shares Transferred by the
Institutional Investors in such public offering and (ii) the aggregate number of
Shares beneficially owned by such Management Investor at the time of such public
offering divided by (b) the aggregate number of Shares held by the Institutional
Investors at the time of such public offering; provided, however, that the pro
rata portion as so calculated shall be adjusted downward to the extent the Board
shall have approved a Transfer of Shares by such Management Investor prior to
such Management Investor's notification to the Board of his intention to avail
himself of this provision. Any Transfer or purported Transfer made in violation
of this Section 2 shall be null and void and of no effect.
3. RIGHT OF CO-SALE. In the event that any Investor intends to
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Transfer (i) shares of Common Stock which, together with any previous sales of
shares of Common Stock by such Investor, represent more than twenty percent
(20%) of its shares of Common Stock on a cumulative basis or (ii) shares of
Preferred Stock which, together with any previous sales of shares of Preferred
Stock by such Investor, represent more than twenty percent (20%) of its shares
of Preferred Stock on a cumulative basis (in each case other than to an
Affiliate of such Investor), such Investor (the "Co-Sale Triggering Investor")
shall notify each other Investor holding shares of such class of stock, in
writing, of such Transfer and its terms and conditions (the "Proposed Sale").
Within 10 days of the date of such notice, each Investor holding shares of such
class of stock that wishes to participate in the Proposed Sale (the "Co-Sale
Investors")
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shall so notify the Co-Sale Triggering Investor in writing (a "Transfer
Notice"). In the event the Co-Sale Triggering Investor fails to receive a
Transfer Notice from any Investor within such 10-day period, such Investor shall
be deemed to have declined to participate in the Proposed Sale. Each Co-Sale
Investor shall have the right to sell, at the same price and on the same terms
as the Co-Sale Triggering Investor, that number of shares of Common Stock or
Preferred Stock, as the case may be, equal to the number of shares of Common
Stock or Preferred Stock, as the case may be, the third party proposes to
purchase multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock or Preferred Stock (other than Plan Stock), as the case
may be, issued and owned by such Co-Sale Investor and the denominator of which
shall be the aggregate number of shares of Common Stock or Preferred Stock
(other than Plan Stock), as the case may be, issued and owned by the Co-Sale
Triggering Investor and each other Co-Sale Investor (including such Co-Sale
Investor) exercising its rights pursuant to this Section 3. Nothing contained
herein shall obligate the Co-Sale Triggering Investor to consummate the Proposed
Sale or limit the Co-Sale Triggering Investor's right to amend or modify the
terms of the Proposed Sale in any respect; provided that the Investors are
offered the opportunity to participate in the Proposed Sale on such amended or
modified terms.
4. INFORMATION AS TO COMPANY AND RELATED COVENANTS
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(a) Investor Financial Information. From and after the date hereof,
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the Company shall deliver to each Investor owning beneficially (within the
meaning of Rule 13d-3 under the Exchange Act) more than five percent (5%) of the
issued and outstanding shares of Common Stock or Preferred Stock (except for the
annual reports referred to in (a)(ii) below, which shall be delivered to each
Investor as long as such Investor owns any shares of Common Stock or Preferred
Stock):
(i) Quarterly Statements. As soon as practicable, and in any event
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within 45 days after the close of each of the first three fiscal quarters of
each fiscal year of the Company, a consolidated balance sheet, statement of
income and statement of changes in cash flow of the Company and its Subsidiaries
as of the close of such quarter and the portion of the Company's fiscal year
ending on the last day of such quarter, all in reasonable detail and prepared in
accordance with U.S. generally accepted accounting principles, consistently
applied, subject to audit and year end adjustments, setting forth in each case
in comparative form the figures for the comparable period of the previous year;
(ii) Annual Statements. As soon as practicable after the end of each
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fiscal year of the Company, and in any event within 120 days thereafter, a copy
of the consolidated balance sheet, and consolidated statements of income,
stockholders' equity and changes in cash flow of the Company and its
Subsidiaries for such year, setting forth in each case in
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comparative form the figures for the previous fiscal year, all in reasonable
detail and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing selected by the Company, which
opinion shall state that such financial statements fairly present the financial
position and results of operations of the Company and its Subsidiaries on a
consolidated basis and have been prepared in accordance with U.S. generally
accepted accounting principles consistently applied (except for changes in
application in which such accountants concur) and that the examination of such
accountants has been made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances.
(b) Director Materials. The Company shall prepare and deliver to
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each director of the Company:
(i) Monthly Financial Statements. As soon as practicable, and in
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any event within 30 days after the close of each of month of each fiscal year of
the Company, a consolidated balance sheet, statement of income and statement of
changes in cash flow of the Company and its Subsidiaries as of the close of each
month and the portion of the Company's fiscal year ending on the last day of
such month, all in reasonable detail and prepared in accordance with U.S.
generally accepted accounting principles, consistently applied, subject to audit
and year end adjustments, setting forth in each case in comparative form the
figures for the comparable period of the previous year;
(ii) Business Plan; Projections. Prior to the commencement of each
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fiscal year of the Company, an annual business plan of the Company and
projections of operating results, prepared on a monthly basis, and a three-year
business plan of the Company and projections of operating results. Within 45
days of the close of each fiscal quarter of the Company, the Company shall
provide its directors with a comparison of actual year-to-date results with the
corresponding budgeted figures;
(iii) Audit Reports. Promptly upon receipt thereof, one copy of each
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other financial report and internal control letter submitted to the Company by
independent accountants in connection with any annual, interim or special audit
made by them of the books of the Company and its Subsidiaries; and
(iv) Requested Information. With reasonable promptness, the Company
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shall furnish each director with such other data and information as from time to
time may be reasonably requested.
The Company acknowledges that its obligations under this Section 4(b)
shall not limit the rights of its directors under applicable law to obtain
information and other materials from the Company.
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(c) Inspection. From and after the date hereof, the Company will
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permit each Investor owning beneficially (within the meaning of Rule 13d-3 under
the Exchange Act) more than five percent (5%) of the issued and outstanding
shares of Common Stock or Preferred Stock, its nominee, assignee or its
representative to visit and inspect any of the properties of the Company, to
examine all its books of account, records, reports and other papers not
contractually required of the Company to be confidential or secret, to make
copies and extracts therefrom, and to discuss its affairs, finances and accounts
with its officers, directors, key employees and independent public accountants
or any of them (and by this provision the Company authorizes said accountants to
discuss with said Investor, its nominee, assign and representatives the finances
and affairs of the Company and its Subsidiaries), all at such reasonable times
and as often as may be reasonably requested.
(d) Confidentiality. As to so much of the information and other
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material furnished under or in connection with this Agreement (whether furnished
before, on or after the date hereof) as constitutes or contains confidential
business, financial or other information of the Company or its Subsidiaries,
each Investor covenants for itself and its directors, officers, partners and
stockholders that it will use due care to prevent its respective officers,
directors, employees, counsel, accountants and other representatives from
disclosing such information to persons other than their respective authorized
employees, counsel, accountants, stockholders, partners, limited partners and
other authorized representatives; provided, however, that the Investor may
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disclose or deliver any information or other material disclosed to or received
by the Investor should such disclosure or delivery be required by law.
5. TERMINATION. The Agreement shall terminate:
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(a) upon the closing of the Initial Public Offering, except for the
provisions of Sections 1(b), 2 and 4(d), which shall remain in full force and
effect following the closing of the Initial Public Offering; or
(b) on the date on which (i) the Institutional Investors, and (ii) the
holders of a majority of the shares of Common Stock held by Management Investors
shall have agreed in writing to terminate this Agreement.
Notwithstanding anything in this Agreement to the contrary, if a
Management Investor's employment with the Company and its Subsidiaries is
terminated, whether by such Management Investor or by the Company, whether with
or without cause or whether due to the death or disability, all rights of such
Management Investor under this Agreement (but not the obligations) shall be
terminated.
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6. INTERPRETATION OF THIS AGREEMENT
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(a) Terms Defined. As used in this Agreement, the following terms
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have the respective meaning set forth below:
Affiliate: any person or entity, directly or indirectly, controlling,
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controlled by or under common control with such person or entity.
Exchange Act: the Securities Exchange Act of 1934, as amended.
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Initial Investors: the Institutional Investors and the individuals
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whose names appear on Schedule I hereto on the date hereof.
Initial Public Offering: the completion of an underwritten initial
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public offering for shares of Common Stock pursuant to a registration statement
under the Securities Act resulting in net proceeds to the Company and/or any
selling stockholders of not less than $25,000,000.
Person: an individual, partnership, joint-stock company, corporation,
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limited liability company, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
Security, Securities: as defined in Section 2(1) of the Securities
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Act.
Securities Act: the Securities Act of 1933, as amended.
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Subsidiary: a Person of which the Company owns, directly or
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indirectly, more than fifty percent 50% of the Voting Stock.
Transfer: any sale, assignment, pledge, hypothecation, or other
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disposition or encumbrance, whether or not for consideration.
Voting Stock: securities of any class or classes of a Person the
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holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the directors (or Persons performing similar functions).
(b) Accounting Principles. Where the character or amount of any
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asset or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting computation
is required to be made for the purposes of this Agreement, this shall be done in
accordance with U.S. generally accepted accounting principles at the time in
effect, to the extent applicable, except where such
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principles are inconsistent with the requirements of this Agreement.
(c) Directly or Indirectly. Where any provision in this Agreement
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refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(d) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(e) Section Headings. The headings of the sections and subsections
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of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
7. MISCELLANEOUS
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(a) Notices.
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(i) All communications under this Agreement shall be in writing and
shall be delivered by hand or by facsimile or mailed by overnight courier or by
registered or certified mail, postage prepaid:
(A) if to any of the Management Investors, at the address or
facsimile number of such Management Investor shown on Schedule I, or at such
other address or facsimile number as the Management Investor may have furnished
the other parties hereto in writing;
(B) if to GEI, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), or at such other
address as GEI may have furnished the other parties hereto in writing;
(C) if to Warburg, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), or at such other
address or facsimile number as Warburg may have furnished the other parties
hereto in writing;
(D) if to the Company, to Eagle Family Foods Holdings, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
(Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), or at such other address or facsimile numbers as it
may have furnished the other parties hereto in writing; and
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or by facsimile, on the date of such delivery, if a business
day, otherwise the first business day thereafter; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered
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or certified mail, on the third business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents
-------------------------
relating thereto, including, without limitation, (i) consents, waivers and
modifications relating hereto which may hereafter be executed, (ii) documents
received by each Investors pursuant hereto and (iii) financial statements,
certificates and other information previously or hereafter furnished to each
Investor, may be reproduced by each Investor by an photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process and each
Investor may destroy any original document so reproduced. All parties hereto
agree and stipulate that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative proceeding (whether or
not the original is in existence and whether or not such reproduction was made
by each Investor in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
(c) Successors and Assigns; No Third Party Beneficiaries. This
----------------------------------------------------
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties. Nothing in this Agreement shall confer upon any
Person not a party to this Agreement any rights or remedies of any nature or
kind whatsoever under or by reason of this Agreement.
(d) Entire Agreement; Amendment and Waiver. This Agreement, the
--------------------------------------
Registration Rights Agreement, the Subscription Agreements and the Certificate
of Incorporation of the Company constitute the entire understanding of the
parties hereto relating to the subject matter hereof and supersede all prior
understandings among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of (i) both Institutional Investors and (ii) the holder or
holders of a majority of the shares of Common Stock (other than Plan Stock and
other than those shares held by the Institutional Investors or their respective
Affiliates), which shall include Management Investors holding a majority of such
shares held by Management Investors.
(e) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(e) Injunctive Relief. 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 certain of the obligations imposed on them by this Agreement,
including, without limitation, those obligations set forth in Sections 1 and 2,
and that in the event of any such failure, an aggrieved person will
13
be irreparably damaged and will not have an adequate remedy at law. Any such
person shall, therefore, be entitled to injunctive relief and/or specific
performance to enforce such obligations, and if any action should be brought in
equity to enforce any of such provisions of this Agreement, none of the parties
hereto shall raise the defense that there is an adequate remedy at law.
14
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date first above written.
EAGLE FAMILY FOODS HOLDINGS, INC.
By: /s/ ▇▇▇▇ O'▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ O'▇. ▇▇▇▇▇▇
Title: Chief Executive Officer, President and
Director
GE INVESTMENT PRIVATE PLACEMENT PARTNERS II, A LIMITED
PARTNERSHIP
By: GE Investment Management
Incorporated, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Partner
MANAGEMENT INVESTORS:
[Signatures on following pages]
15
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
16
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇ O'▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ O'▇. ▇▇▇▇▇▇
17
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
18
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
19
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
20
Signature Page to Stockholders Agreement, dated as of January 23, 1998, among
Eagle Family Foods Holdings, Inc., GE Investment Private Placement Partners II,
A Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the Management
Investor set forth below.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
21
SCHEDULE I
Management Investors
--------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ O'▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇
22
Exhibit A
---------
JOINDER AGREEMENT
-----------------
Joinder Agreement, dated as of this ____ day of January, 1998, by and
among Eagle Family Foods Holdings, Inc., a Delaware corporation (the "Company"),
and the undersigned (the "Investor").
Reference is made to that certain Stockholders Agreement (the
"Stockholders Agreement"), dated as of January 23, 1998, by and among Eagle
Family Foods Holdings, Inc., GE Investment Private Placement Partners II, A
Limited Partnership, Warburg, ▇▇▇▇▇▇ Ventures, L.P. and the other holders of
Common Stock and Preferred Stock from time to time party thereto, as the same
may from time to time be amended.
By executing this Joinder Agreement, the Investor hereby agrees to be
bound by the terms of the Stockholders Agreement as if he were an original
signatory to such Agreement and shall be deemed to be a Management Investor
thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Joinder
Agreement as of the date first above written.
_____________________________
Name:
Agreed to and Accepted by:
EAGLE FAMILY FOODS HOLDINGS, INC.
_____________________________
Name:
Title: