STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is made as of November 6,
2001, by and among (i) Sun Northland, LLC, a Delaware limited liability company
("Sun"), (ii) each of the Persons whose name appears on the signature page
hereto or who otherwise hereafter becomes a party to this Agreement (the
"Minority Stockholders"), and (iii) Northland Cranberries, Inc., a Wisconsin
corporation (the "Company"). Certain other capitalized terms used herein are
defined in Section 1.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Certain Definitions. The terms defined in this Section 1, whenever
used in this Agreement, shall, unless the context clearly otherwise requires,
have the following respective meanings:
"Affiliate" of a Person shall mean any other Person, directly or indirectly
controlling, controlled by or under common control with such Person.
"Applicable Percentage" shall have the meaning set forth herein in Section
3.1(c).
"Bank Group" shall mean U.S. Bank National Association, ARK CLO 2000-1
Limited, and St. ▇▇▇▇▇▇▇ Bank, F.S.B.
"Common Stock" shall mean the Class A Common Stock, $0.01 par value per
share, of the Company as constituted on the date hereof and any stock into which
any such common stock shall have been changed or any stock resulting from any
reclassification of any such common stock.
"Common Stock Equivalents" shall mean Common Stock and any securities
convertible or exchangeable for shares of Common Stock.
"Company" shall have the meaning set forth in the preamble of this
Agreement.
"Exempt Transfer", as applied to any Stockholder, shall mean (a) any sale
or Transfer permitted by the Registration Agreement, (b) any Permitted Affiliate
Sale, (c) in the case of an individual, any Transfer to a member of the Family
of such Stockholder, if such individual agrees to be bound by the terms of this
Agreement and executes a joinder hereto, or (d) any Transfer to another
Stockholder.
"Family", as applied to any individual, shall mean (a) the children of such
individual (by birth or adoption), (b) the parents, spouse and siblings of such
individual, (c) the children of such siblings, (d) any trust solely for the
benefit of, or any partnership, limited liability company or other entity owned
solely by, any one or more of such aforementioned individuals (so long as such
individual has the exclusive right to control such trust or other entity) and
(e) the estate of such individual.
"Financing Agreement" shall mean the Loan and Security Agreement, dated as
of November 6, 2001, by and among the Company, Foothill Capital Corporation (as
arranger and administrative agent) and the lenders that are signatories thereto,
as amended from time to time.
"Minority Shares" shall mean shares of the Company's Common Stock owned or
controlled by the Minority Stockholders.
"Minority Stockholders" shall have the meaning set forth in the preamble.
"Notice of Transfer" shall have the meaning set forth herein in Section
3.1(b).
"Outside Offer" shall have the meaning set forth herein in Section 2.2(a).
"Permitted Affiliate Sale" shall mean any sale by a holder of Common Stock
to any one or more of its Affiliates or a fund or account managed by a holder of
Common Stock or an Affiliate of such holder, if such Person agrees to be bound
by the terms of this Agreement to the same extent as the transferor and executes
a joinder hereto.
"Person" shall mean an individual, a corporation, a limited liability
company, an association, a joint-stock company, a business trust or other
similar organization, a partnership, a joint venture, a trust, an unincorporated
organization or a government or any agency, instrumentality or political
subdivision thereof.
"Prospective Purchaser" shall have the meaning set forth herein in Section
2.2(a).
"Registration Agreement" shall mean that certain Registration Agreement,
dated November 6, 2001, by and between the Company, Sun, and the other Persons
listed on the signature page thereto.
"Rights" shall have the meaning set forth in Section 4(a).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations promulgated thereunder,
all as amended, modified or supplemented from time to time.
"Selling Stockholder" shall have the meaning set forth in Section 2.2(a).
"Series A Preferred Stock" shall mean the Company's Series A Preferred
Stock, par value $.01 per share.
"Stockholder" shall mean Sun, the Minority Stockholders and each other
Person who shall acquire any shares of Common Stock from the Company or the
Minority Stockholders and their respective heirs, executors, successors and
assigns in accordance with the terms and conditions of this Agreement.
"Transfer" shall mean any sale, pledge, gift, assignment or other transfer.
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"Unregistered Common Stock" shall mean any share of Common Stock which has
not been registered under the Securities Act on Form S-1 or any similar
long-form registration or on Form S-2 or S-3 or any similar short-form
registration.
"Warrants" shall mean the Common Stock Purchase Warrants (as amended,
modified and supplemented from time to time) issued pursuant to the Financing
Agreement; and "Warrant" means any one of the foregoing Warrants.
2. Restriction on Transfer of Common Stock by Minority Stockholders.
2.1 General. The Minority Stockholders shall not Transfer any shares of
Common Stock or Warrants and the Company shall not register the Transfer of, or
otherwise permit the Transfer of, any shares of Common Stock or Warrants by any
Minority Stockholders (except in connection with an Exempt Transfer) unless (a)
such Transfer has been consummated in accordance with the terms hereof and (b)
the new holder thereof shall first have become a party to this Agreement and
shall have agreed in writing to be bound by all of the terms and conditions
hereof applicable to the Minority Stockholders. Any Transfer of Common Stock or
Warrants by any Minority Stockholder which is not consummated in accordance with
this Agreement shall be void. Sun shall not Transfer any shares of its Common
Stock Equivalents and the Company shall not register the Transfer of, or
otherwise permit the Transfer of, any shares of Common Stock Equivalents by Sun
unless such Transfer is an Exempt Transfer, is pursuant to Section 3.1 or
Section 3.2, or is otherwise in accordance with the terms hereof. Any Transfer
of Common Stock Equivalents by Sun which is not consummated in accordance with
this Agreement shall be void.
2.2 Limited Right to Dispose of Interest.
(a) Bona Fide Offer to Purchase Interest. Except in connection with
an Exempt Transfer, if any Minority Stockholders (or any of his, her or its
transferees) shall at any time desire to Transfer all or any part of his,
her or its shares of Unregistered Common Stock or Warrants, as permitted
under the terms of this Agreement, such Person (the "Selling Stockholder")
shall first obtain a bona fide written offer which such Selling Stockholder
desires to accept (the "Outside Offer") to purchase all or any portion of
such Selling Stockholder's Unregistered Common Stock or Warrants for a
fixed cash price payable in full at the closing of such transaction. The
Outside Offer shall set forth its date, the proposed purchase price, the
number of shares of Unregistered Common Stock or Warrants proposed to be
purchased, and the other terms and conditions upon which the purchase is
proposed to be made, as well as the name and address of the Prospective
Purchaser. "Prospective Purchaser", as used herein, shall mean the
prospective record owner or owners of the shares of Unregistered Common
Stock or Warrants which are the subject of the Outside Offer and all other
Persons proposed to have a beneficial interest in such Unregistered Common
Stock or Warrants. The Selling Stockholder shall transmit copies of the
Outside Offer to the Company and Sun within five (5) days after the Selling
Stockholder's receipt of the Outside Offer.
(b) Option of Company and Sun.
(i) As a result of the foregoing transmittal of the Outside
Offer, the Selling Stockholder shall be deemed to have offered in
writing to sell all, but not less than all, of
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such Selling Stockholder's Unregistered Common Stock or Warrants to
the Company which are proposed to be purchased in the Outside Offer at
the price and upon the terms set forth in the Outside Offer. For a
period of twenty (20) days after such deemed offer by the Selling
Stockholder to the Company, the Company shall have the option,
exercisable by written notice to the Selling Stockholder, to accept
the Selling Stockholder's offer, in whole and not in part, as to the
Selling Stockholder's Unregistered Common Stock or Warrants.
(ii) If the Company does not exercise its option set forth in the
preceding Section 2.2(b)(i), the Selling Stockholder shall be deemed
to have offered in writing to sell all, but not less than all, of such
Selling Stockholder's Unregistered Common Stock or Warrants to Sun
which are proposed to be sold in the Outside Offer at the price and
upon the terms set forth in the Outside Offer. For a period of ten
(10) days after such deemed offer by the Selling Stockholder to Sun,
Sun shall have the option, exercisable by written notice to the
Selling Stockholder, to accept the Selling Stockholder's offer, in
whole and not in part, as to the Selling Stockholder's Unregistered
Common Stock or Warrants.
(c) Acceptance of the Bona Fide Offer. If, at the end of the option
periods described in Section 2.2(b) hereof, the option has not been
exercised either by the Company or Sun to purchase all of the Selling
Stockholder's Unregistered Common Stock or Warrants proposed to be
purchased in the Outside Offer, the Selling Stockholder shall be free for a
period of sixty (60) days thereafter to Transfer up to the number of shares
of his, her or its Unregistered Common Stock or Warrants proposed to be
purchased in the Outside Offer to the Prospective Purchaser at the price
and upon the terms and conditions set forth in the Outside Offer, provided
that the Prospective Purchaser is not a Person that, directly or indirectly
(whether as sole proprietor, partner, manager, consultant, director,
officer, employee or agent), owns, manages, operates, controls, finances,
engages or participates in the ownership, management, operation or control
of any Person that competes with the Company. If such Unregistered Common
Stock or Warrants is not so transferred within the sixty (60) day period,
the Selling Stockholder shall not be permitted to sell such Unregistered
Common Stock or Warrants without again complying with this Section 2.2.
(d) Notwithstanding anything contained in this Agreement to the
contrary, the restrictions on the Transfer of Unregistered Common Stock or
Warrants set forth in this Section 2.2 shall not apply to Sun or any of its
Affiliates.
3. Tag-Along Rights; Drag-Along Rights.
3.1. Tag-Along Rights. Subject to Section 3.1(f):
(a) If Sun at any time proposes to Transfer any shares of Common
Stock Equivalents, then, as a condition precedent thereto, Sun shall afford
the Minority Stockholders the right to participate in such Transfer in
accordance with this Section 3.1.
(b) If Sun wishes to Transfer any shares of Common Stock Equivalents,
it shall give written notice to the Minority Stockholders (a "Notice of
Transfer") not less than twenty (20) nor more than thirty (30) days prior
to any proposed Transfer of any such shares. Each such Notice of Transfer
shall:
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(i) specify in reasonable detail (A) the number of shares of
Common Stock Equivalents which Sun proposes to Transfer, (B) the
identity of the proposed transferee or transferees of such shares, (C)
the time within which, the price per share at which, and all other
terms and conditions upon which, Sun proposes to Transfer such shares
of Common Stock Equivalents, and (D) the percentage of the Common
Stock Equivalents then owned by Sun (calculated on a fully-diluted
basis) which Sun proposes to Transfer to such proposed transferee or
transferees and (E) a representation that such proposed transferees
have been informed of the tag-along rights provided for in this
Section 3.1 and have agreed to purchase shares of Common Stock
Equivalents in accordance with the terms hereof;
(ii) make explicit reference to this Section 3.1 and state that
the right of the Minority Stockholders to participate in such Transfer
under this Section 3.1 shall expire unless exercised within twenty
(20) days after receipt of such Notice of Transfer; and
(iii) contain an irrevocable offer by Sun to the Minority
Stockholders to participate in the proposed Transfer to the extent
provided in Section 3.1(c).
(c) Each Minority Stockholder shall have the right to participate in
the proposed Transfer by transferring to the proposed transferee or
transferees up to that number of shares of Common Stock owned by such
Minority Stockholders which is equal to the Applicable Percentage (as
hereinafter defined) (or, if such Minority Stockholders shall elect, any
lesser percentage) of the shares of Common Stock Equivalents proposed to be
transferred by Sun, at the same price per share and on the same terms and
conditions as are applicable to the proposed Transfer by Sun (and, if and
to the extent such Minority Stockholders shall exercise such right, then
the number of shares of Common Stock Equivalents to be sold by Sun in such
transaction shall be correspondingly reduced). As used herein, the term
"Applicable Percentage" as applied to a Minority Stockholder on any date
shall mean a fraction (expressed as a percentage), the numerator of which
is the aggregate of the number of shares of Common Stock owned by such
Minority Stockholder on such date and the denominator of which is total
number of shares of Common Stock Equivalents (assuming exercise of all
Warrants) owned by Sun and the Minority Stockholders on such date.
(d) A Minority Stockholders must notify Sun, within twenty (20) days
after receipt of the Notice of Transfer, if he, she or it desires to accept
such offer and to Transfer any shares of Common Stock owned by such Person
in accordance with this Section 3.1. The failure of a Minority Stockholder
to provide such notice within such 20-day period shall, for the purposes of
this Section 3.1, be deemed to constitute a waiver by such Person of his,
her or its right to sell any of his, her or its shares of Common Stock in
connection with the proposed Transfer described in such Notice of Transfer.
Sun will use its commercially reasonable efforts to obtain the agreement of
the prospective transferee or transferees to the participation of the
Minority Stockholders in such proposed Transfer, and Sun shall not Transfer
any of its shares to such prospective transferee if such transferee shall
not agree to the participation of the Minority Stockholders in such
proposed Transfer. The Minority Stockholders shall not be obligated to sell
any shares of Common Stock pursuant to this Section 3.1. Any and all sales
of Common Stock by any of the Minority Stockholders pursuant to this
Section 3.1 shall be made either concurrently with or prior to the sale of
Common Stock Equivalents by Sun.
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(e) If the Transfer described in any Notice of Transfer is not
consummated within ninety (90) days following the date upon which such
Notice of Transfer is given or if there is any change in the terms pursuant
to which such Transfer is to be consummated, then, prior to consummating
such Transfer, Sun must again comply with the provisions of this Section
3.1.
(f) Notwithstanding anything to the contrary contained in this
Section 3.1, the Minority Stockholders shall not have any rights pursuant
to this Section 3.1 to participate in any Exempt Transfer by Sun.
3.2 Drag-Along Rights.
(a) If at any time following the date hereof, Sun shall enter into an
agreement to sell a majority of the Common Stock Equivalents of the Company
to any Person or group of Persons who are not affiliated with Sun, then Sun
may require that the Minority Stockholders sell the same percentage of
their Common Stock Equivalents to such transferee or transferees as the
percentage of Common Stock then owned by Sun which Sun proposes to Transfer
to such proposed transferee or transferees at the same price per share and
on the same terms and conditions as are applicable to the proposed sale by
Sun.
(b) In order to exercise the rights under Section 3.2(a), Sun must
give notice to the Minority Stockholders not less than 10-days prior to the
proposed date upon which the contemplated sale is to be effected. In
addition, Sun shall furnish to the Minority Stockholders all such
agreements, documents and instruments to be executed in connection with
such transaction and shall afford the Minority Stockholders a reasonable
period of time (but in any event not less than 5 business days) within
which to review such agreements, documents and instruments.
4. Preemptive Rights.
(a) Notice and Exercise. The Company shall, prior to any proposed
issuance by the Company to Sun or its Affiliates of any shares of capital
stock or securities representing the right to acquire shares of capital
stock ("Rights") (other than debt securities with no equity feature), offer
to the Minority Stockholders by written notice the right, for a period of
20-days from the date on which such notice is postmarked, hand delivered or
faxed, to purchase for cash at an amount equal to the price or other
consideration for which such capital stock or Rights are to be issued, a
number of such shares of capital stock or Rights so that, after giving
effect to such issuance (and the conversion, exercise and exchange into or
for (whether directly or indirectly) shares of capital stock of all
Rights), each such Minority Stockholder will continue to maintain his, her
or its same percentage equity ownership (assuming the exercise in full of
all Warrants) in the Company represented by the shares of Common Stock
owned by each such Minority Stockholder as of the date of such notice.
(b) Exceptions. Notwithstanding any other provision of this Agreement
to the contrary, the preemptive rights of the Minority Stockholders
pursuant to this Section 4 shall not apply to securities issued (A) upon
conversion or exchange of any of the shares of the Company's Series A
Preferred Stock to Common Stock, (B) upon exercise of any of the Warrants,
(C) as a stock dividend or upon any subdivision of shares of Common Stock,
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(D) pursuant to subscriptions, warrants, options, convertible securities,
or other rights, issued, or to be issued, under any stock incentive plan
approved by the Company's Board of Directors and in place from time to time
for the benefit of the Company's directors, employees, consultants or
independent contractors or (E) to any Person other than Sun or its
Affiliates.
(c) Acceptance. The Company's written notice to the Minority
Stockholders shall describe the capital stock or Rights proposed to be
issued by the Company to Sun or its Affiliates and specify the number of
shares, price and payment terms. Each Minority Stockholder may accept the
Company's offer as to the full number of shares of capital stock or Rights
offered to him, her or it or any lesser number, by written notice thereof
given by him, her or it to the Company prior to the expiration of the
aforesaid 20-day period, in which event the Company shall promptly sell and
each Minority Stockholder shall buy, upon the terms specified, the number
of shares of capital stock or Rights agreed to be purchased by such Person.
The Company shall be free at any time prior to ninety (90) days after the
date of its notice of offer to the Minority Stockholders, to offer and sell
to Sun or its Affiliates or any third party or parties the remainder of
such capital stock or Rights proposed to be issued by the Company
(including but not limited to the securities not agreed by the Minority
Stockholders to be purchased by them), at a price and on payment terms no
less favorable to the Company than those specified in such notice of offer
to the Minority Stockholders. However, if such third party sale or sales
are not consummated within such ninety (90) day period, the Company shall
not sell such capital stock or Rights as shall not have been purchased
within such period without again complying with this Section 4.
5. Voting.
(a) Each Minority Stockholders agrees to vote the shares of Common
Stock owned or controlled by it, him or her in the manner specified by Sun
with respect to: (i) any sale of all or substantially all of the assets of
the Company or any of its subsidiaries to a Person not an Affiliate of Sun;
(ii) any acquisition, merger or consolidation involving the Company or any
of its subsidiaries in which a Person (or group of Persons acting in
concert) not an Affiliate (or Affiliates) of Sun shall own in excess of 50%
of the surviving corporation of such acquisition, merger or consolidation;
(iii) any transaction to which Section 3.1 or Section 3.2 applies; (iv) the
election of the members of the Company's board of directors; and (v) any
other matter on which the stockholders of a Wisconsin corporation generally
have a right to vote.
(b) Each Minority Stockholders hereby grant to Sun an irrevocable
proxy to vote all shares of Common Stock now or hereafter owned or
controlled by each of them in accordance with the agreements contained in
this Section 5.
6. Legends. So long as any shares of Common Stock are subject to the
provisions of this Agreement, all certificates or instruments representing such
securities (including the Warrants) shall bear a legend in substantially the
following form:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
OF THE STOCKHOLDERS' AGREEMENT DATED AS OF NOVEMBER 6, 2001
AMONG THE ISSUER HEREOF AND CERTAIN OTHER PERSONS, A TRUE
AND
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CORRECT COPY OF WHICH IS ON FILE AT THE ISSUER'S CHIEF
EXECUTIVE OFFICE AND, UPON WRITTEN REQUEST TO THE ISSUER, A
COPY THEREOF WILL BE MAILED OR OTHERWISE PROVIDED WITHOUT
CHARGE WITHIN TEN (10) DAYS OF RECEIPT OF SUCH REQUEST TO
APPROPRIATELY INTERESTED PERSONS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND SUCH LAWS.
7. Termination of this Agreement. This Agreement shall terminate on the
last to occur of (a) the date on which Sun and its Affiliates no longer owns or
controls at least 50% of the Common Stock on a fully diluted basis and (b) the
date on which Sun and its Affiliates no longer controls the Company's Board of
Directors.
8. Notices. All communications provided for herein shall be in writing
and and sent (a) by facsimile if the sender on the same day sends a confirming
copy of of such communication by a recognized overnight delivery service
(charges prepaid), (b) by a recognized overnight delivery service (charges
prepaid), or (c) by messenger. The respective addresses of the parties hereto
for the purposes of this Agreement are set forth on Exhibit A attached hereto.
Any party may change its address (or facsimile number) by notice to each of the
other parties in accordance with this Section 8. The date of giving or making of
any such communication shall be, in the case of clauses (a) and (c), the date of
the receipt; and, in the case of clause (b), the business day next following the
date such communication is sent.
9. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, executors, successors and assigns, who, upon acceptance thereof, shall,
without further action, be (i) entitled to enforce the applicable provisions and
enjoy the applicable benefits hereof and (ii) bound by the terms and conditions
hereof.
10. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment, or waiver of any provision of this Agreement will be
effective unless such modification, amendment, or waiver is approved in writing
by the Company, each member of the Bank Group, Sun, and the holders of at least
a majority of the Minority Stockholders; provided that execution of a joinder
hereto shall not be considered a modification, amendment or waiver of any of the
provisions of this Agreement. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a waiver of such
provisions and will
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not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11. Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce their rights under this Agreement
specifically to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor; provided,
however the parties hereto stipulate that the remedies at law of any party
hereto in the event of any default or threatened default by any other party
hereto in the performance of or compliance with the terms hereof are not and
will not be adequate and that, to the fullest extent permitted by law, such
terms may be specifically enforced (without posting a bond or other security) by
a decree for the specific performance thereof, whether by an injunction against
violation thereof or otherwise.
12. Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by and construed in accordance with the domestic laws of the
State of Wisconsin without giving effect to any choice or conflict of law
provision or rule (whether of the State of Wisconsin or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Wisconsin. Each party hereto submits to the jurisdiction of any state
or federal court sitting in Milwaukee, Wisconsin, in any action or proceeding
arising out of or relating to this Agreement and agrees that all claims in
respect of the action or proceeding may be heard and determined in any such
court. Each party also agrees not to bring any action or proceeding arising out
of or relating to this Agreement in any other court. Each party hereto waives
any defense of inconvenient forum to the maintenance of any action or proceeding
so brought and waives any bond, surety, or other security that might be required
of any other party with respect thereto. Any party may make service on any other
party by sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for the giving of notices in Section 8
above. Nothing in this Section 12, however, shall affect the right of any party
to bring any action or proceeding arising out of or relating to this Agreement
in any other court or to serve legal process in any other manner permitted by
law or at equity. Each party agrees that a final judgment in any action or
proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law or at equity. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT,
ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF
ITS, HIS OR HER OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal, or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision had never been contained herein.
14. Entire Agreement. Except as otherwise expressly set forth herein, this
Agreement, those documents expressly referred to herein, and the other documents
of even date herewith embody the complete agreement and understanding among the
parties and supersede and
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preempt any prior understandings, agreements, or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
15. Counterparts. This Agreement may be executed in separate counterparts
each of which will be an original and all of which taken together shall
constitute one and the same agreement.
16. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
17. Mandatory Conversion. The Company agrees to take all actions
reasonably necessary, including increasing the number of authorized shares of
Common Stock, to convert the Series A Preferred Stock to Common Stock, as soon
as reasonably practicable after execution of this Agreement. Sun agrees to vote
its Common Stock Equivalents in favor of such increase in the authorized number
of shares of Common Stock.
18. Sale of Securities to Affiliate. Prior to any proposed issuance by the
Company of any Common Stock Equivalents to any Affiliate of Sun, the Company
shall require that such Affiliate agree to be bound by the terms of this
Agreement to the same extent as Sun and execute a joinder hereto.
[The remainder of this page is left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement on the day and year first above written.
NORTHLAND CRANBERRIES, INC.
By: /s/
---------------------------------
Name:
Title:
SUN NORTHLAND, LLC
By: /s/
---------------------------------
Name:
Title: Manager
FOOTHILL CAPITAL CORPORATION
By: /s/
---------------------------------
Name:
Title:
ST. ▇▇▇▇▇▇▇ BANK, F.S.B.
By: /s/
---------------------------------
Name:
Title:
ARK CLO 2000-1 LIMITED
By: /s/
---------------------------------
Name:
Title:
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[Continuation of Stockholders' Agreement Signature Page]
U.S. BANK NATIONAL ASSOCIATION
By: /s/
---------------------------------
Name:
Title:
ABLECO HOLDING LLC
By: /s/
---------------------------------
Name:
Title:
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Exhibit A
Addresses for Notices
(a) If to the Company, to it at:
Northland Cranberries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Sun Capital Advisors II, L. P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
C. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Sun Northland, LLC, to it at:
c/o Sun Capital Advisors II, L. P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
C. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
13
Exhibit A
(Continued)
(c) If to Minority Stockholders, to them at:
Foothill Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Business Finance Division Manager
Telecopy No.:________________
with a copy to:
Otterbourg, Steindler, Houston & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. Brand, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Ableco Holding LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
St. ▇▇▇▇▇▇▇ Bank, F.S.B.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ Tans
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
14
Exhibit A
(Continued)
ARK CLO 2000-1 Limited
c/o Patriarch Partners, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
ARK CLO 2000-1 Limited
c/o Woodside Capital
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Bank National Association
MPFP2516
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
15