SHAREHOLDERS AGREEMENT
BY AND AMONG
SENECA FOODS CORPORATION
AND
THE PARTIES LISTED HEREIN
Dated as of June 22, 1998
Doc#:DS4:313595.8
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS.........................................2
ARTICLE II LIMITATIONS ON TRANSFER...............................7
2.1 General Restrictions on Transfer......................7
2.2 Certain Permitted Transfers...........................8
2.3 Tag-Along Right.......................................9
ARTICLE III RIGHT TO PARTICIPATE IN CERTAIN ISSUANCES OF
CAPITAL STOCK .....................................12
3.1 Right to Participate in New Issuance.................12
3.2 Exercise of Right....................................12
3.3 Closing..............................................13
ARTICLE IV AGREEMENT OF THE SHAREHOLDERS TO ACT IN
FAVOR OF THE STOCK PURCHASE AGREEMENT
TRANSACTIONS.........................................13
4.1 Vote in Favor of the Stock Purchase Agreement
Transactions........................................13
4.2 Renounce and Cease from Transferring the
Rights.............................................14
ARTICLE V CORPORATE GOVERNANCE AND CERTAIN OTHER
ACTIONS..............................................14
5.1 General..............................................14
5.2 Election of Directors................................14
5.3 Removal and Replacement..............................14
ARTICLE VI AFTER-ACQUIRED SECURITIES............................15
ARTICLE VII STOCK CERTIFICATE RESTRICTIONS.......................16
7.1 Beneficial Ownership.................................16
7.2 Liquidated Damages...................................16
ARTICLE VIII MISCELLANEOUS........................................16
8.1 Notices..............................................16
8.2 Authority and Effect of Agreement....................19
8.3 Action By Written Consent............................20
8.4 Amendment and Waiver.................................20
8.5 Specific Performance.................................21
8.6 Headings.............................................21
8.7 Severability.........................................21
8.8 Entire Agreement.....................................21
8.9 Term of Agreement....................................21
8.10 GOVERNING LAW........................................22
8.11 Further Assurances ..................................22
8.12 Successors and Assigns; Power of Certain
Representatives....................................22
8.13 Counterparts.........................................22
i
SCHEDULES
SCHEDULE 8.2 Ownership of Shares
ii
SHAREHOLDERS AGREEMENT
----------------------
SHAREHOLDERS AGREEMENT, dated as of June 22, 1998 (this
"Agreement") by and among the persons listed on the signature pages hereto as
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Investor Shareholders (the "Investor Shareholders"), the persons listed on the
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signature pages hereto as Existing Marks Shareholders (the "Existing Marks
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Shareholders"), the persons listed on the signature pages hereto as Existing
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Shareholders (the "Existing Shareholders") and Seneca Foods Corporation, a New
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York corporation (the "Company"). The Investor Shareholders, the Existing Marks
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Shareholders and the Existing Shareholders are hereinafter referred to,
collectively, as the "Shareholders."
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WHEREAS, the Company proposes, as soon as practicable after
the Rights Offering Registration Statement (as defined herein) becomes
effective, to distribute to holders of its Class A common stock, par value $.25
per share, of the Company (the "Class A Common Stock") and Class B common stock,
--------------------
par value $.25 per share, of the Company (the "Class B Common Stock") rights
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(the "Rights") to subscribe for and purchase up to an aggregate of 3,000,000
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shares of the Company's Convertible Participating Preferred Stock, par value
$.025 per share (the "Preferred Stock"), at a subscription price (the
-----------------
"Subscription Price") of $12.00 per share (the "Rights Offering");
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WHEREAS, the Investor Shareholders and the Company are parties
to a Stock Purchase Agreement, dated as of June 22, 1998 (as amended,
supplemented or otherwise modified, the "Stock Purchase Agreement"), which
--------------------------
provides for: (i) the sale by the Company to the Investor Shareholders of an
aggregate of 1,166,667 shares of the Preferred Stock at an aggregate price of
$14,000,004 ($12.00 per share of Preferred Stock) and (ii) the purchase by the
Investor Shareholders upon the expiration of the Rights Offering of up to
2,500,000 shares of Preferred Stock, at the Subscription Price, to the extent
provided for in the Stock Purchase Agreement; and
WHEREAS, a condition to the execution and delivery of the
Stock Purchase Agreement was the execution and delivery by the Shareholders and
the Company of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
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As used in this Agreement, the following terms shall have the meanings
set forth below:
"Adjusted Tangible Assets" means all assets of the Company and
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its subsidiaries on a consolidated basis except (i) patents, copyrights,
trademarks, trade names, franchises, goodwill, and other similar intangibles,
(ii) unamortized debt discount and expense, (iii) accounts, notes and other
receivables due from Affiliates, and (iv) write-ups in the book value of any
fixed asset resulting from a revaluation thereof effective after the Closing.
"Adjusted Tangible Net Worth" means (i) the net book value
------------------------------
(after deducting related depreciation, obsolescence, amortization, valuation,
and other proper reserves, which reserves will be determined in accordance with
generally accepted accounting principles) at which the Adjusted Tangible Assets
are shown on the latest available consolidated balance sheet of the Company on
such date minus (ii) the amount at which the liabilities of the Company and its
subsidiaries are shown on such consolidated balance sheet (including as
liabilities all reserves for contingencies and other potential liabilities as
shown on such consolidated balance sheet).
"Affiliate" of any Person means any other Person directly or
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indirectly controlling, controlled by or under common control with such Person.
The term "control" means, with respect to any Person, the power to direct or
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cause the direction of the management or policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
----------- ----------
correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble to this
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Agreement.
"Board of Directors" means the Board of Directors of the
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Company.
"Business Day" means any day other than a Saturday, Sunday or
------------
day on which the Company's principal offices are not open generally for
business.
"Charter Documents" means the Certificate of Incorporation and
-----------------
the Bylaws of the Company, as amended through the date hereof.
"Class A Common Stock" has the meaning set forth in the
-----------------------
preamble to this Agreement.
2
"Class B Common Stock" has the meaning set forth in the
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preamble to this Agreement.
"Closing" means the closing of the sale and purchase of the
-------
shares of Preferred Stock (including shares purchased upon the expiration of
Rights) as contemplated by the Stock Purchase Agreement.
"Common Stock" means and includes: (i) the Class A Common
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Stock, (ii) the Class B Common Stock and (iii) each other class of capital stock
of the Company that does not have a preference over any other class of capital
stock of the Company as to dividends or upon liquidation, dissolution or winding
up of the Company and, in each case, shall include any other class of capital
stock of the Company into which such stock is reclassified or reconstituted.
"Common Stock Weighted Average Sale Price" means, when applied
----------------------------------------
to a Proposed Sale, the price obtained by dividing (i) the aggregate
consideration to be received from the sale of any shares of Common Stock and any
Voting Securities convertible into or exercisable or exchangeable for shares of
Common Stock in the Proposed Sale by (ii) the sum of (a) the number of shares of
Common Stock to be sold in such Proposed Sale and (b) the number of shares of
Common Stock to be received upon conversion, exercise or exchange of any Voting
Securities described in clause (i) in accordance with the terms of such Voting
Securities.
"Company" has the meaning set forth in the preamble to this
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Agreement.
"Company Special Meeting" means an annual or special meeting
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of the shareholders of the Company, called for the purpose of voting on (i) the
approval of the purchase of the shares of Preferred Stock by the Investor
Shareholders pursuant to the terms of the Stock Purchase Agreement, (ii) the
approval of the Certificate of Amendment (as defined in the Stock Purchase
Agreement) and (iii) transacting such other business as may properly come before
the meeting or any adjournment thereof.
"Existing Marks Shareholders" has the meaning set forth in the
---------------------------
preamble to this Agreement.
"Existing Shareholders" has the meaning set forth in the
----------------------
preamble to this Agreement.
3
"Individual Permitted Transferee" means, with respect to an
---------------------------------
Existing Shareholder who is an individual or which is a trustee, a Person to
whom any of the following Transfers is made:
(i) Transfer upon the death of such Existing
Shareholder or the death of the beneficiary of such trust to such
Existing Shareholder's or beneficiary's spouse or descendants
(including adopted children and stepchildren, if any), parents,
siblings or descendants of siblings (including adopted children and
stepchildren, if any), or to such Existing Shareholder's or
beneficiary's executor, administrator or testamentary or inter vivos
-----------
trustee;
(ii) a Transfer to such Existing Shareholder's
spouse or descendants (including adopted children and stepchildren, if
any), or a trust, the sole income beneficiaries of which, or a
corporation, partnership or limited liability company, the sole
stockholders, limited and/or general partners or members, as the
case may be, of which, include only such Existing Shareholder, such
Existing Shareholder's spouse and/or such Existing Shareholder's
descendants (including adopted children and stepchildren, if any); or
(iii) a Transfer to the legal guardian of such
Existing Shareholder, if such Existing Shareholder shall be or become
disabled;
provided that, in the event of death or disability of any Person to whom a
--------
Transfer is to be made pursuant to clause (i), (ii) or (iii) above, the term
"Individual Permitted Transferee" shall include:
-------------------------------
(x) in the case of such Person's death, such Person's
spouse or descendants (including adopted children and stepchildren, if
any), or such Person's executor, administrator or testamentary or inter
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vivos trustee; and
-----
(y) in the case of such Person's disability, such
Person's legal guardian.
"Investor Designees" is defined in Section 5.2.
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"Investor Shareholder" has the meaning set forth in the
---------------------
preamble to this Agreement.
4
"Line of Business" means food processing, packaging,
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distribution and canning of fruits and vegetables and other business operations
complementary or incidental thereto.
"Liquidated Damages Breach" is defined in Section 7.2.
-------------------------
"Market Price" means, per share of Class A Common Stock, on
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any date specified herein: (a) the closing price per share of the Class A Common
Stock on such date published in The Wall Street Journal or, if no such closing
price on such date is published in The Wall Street Journal, the average of the
closing bid and asked prices on such date, as officially reported on the
principal national securities exchange on which the Class A Common Stock is then
listed or admitted to trading; or (b) if the Class A Common Stock is not then
listed or admitted to trading on any national securities exchange but is
designated as a national market system security by the NASD, the last trading
price of the Class A Common Stock on such date; or (c) if there shall have been
no trading on such date or if the Class A Common Stock is not so designated, the
average of the reported closing bid and asked prices of the Class A Common
Stock, on such date as shown by the Nasdaq National Market or other
over-the-counter market and reported by any member firm of the New York Stock
Exchange selected by the Company; or (d) if none of (a), (b) or (c) is
applicable, a market price per share determined at the Company's expense by a
nationally recognized appraiser chosen by the Investor Shareholders and approved
by the Company, which approval shall not be unreasonably withheld. If no such
appraiser is so chosen more than 20 Business Days after notice of the necessity
of such calculation shall have been delivered by the Company to the Investor
Shareholders, then the appraiser shall be chosen by the Company.
"NASD" means the National Association of Securities Dealers, Inc.
----
"New Issuance" is defined in Section 3.1.
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"Participating Tag-Along Shareholder" is defined in Section
-------------------------------------
2.3(b).
"Participating Tag-Along Shares" is defined in Section 2.3(b).
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"Permitted Transferee" means, with respect to any Existing
---------------------
Shareholder, a Person to whom or to which such Existing Shareholder is permitted
to Transfer Shares pursuant to Section 2.2(a)(i) or (ii).
5
"Person" means any individual, firm, corporation, partnership,
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limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental body or other entity of any
kind.
"Preferred Stock" has the meaning set forth in the preamble to
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this Agreement.
"Proposed Sale" is defined in Section 2.3(a).
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"Proposed Sale Price" is defined in Section 2.3(a).
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"Proposed Sale Shares" is defined in Section 2.3(a).
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"Public Offering" means any offer for sale of Shares pursuant
----------------
to an effective Registration Statement filed under the Securities Act in which
any one Person or 13D Group does not acquire more than 5% of any class of Voting
Securities.
"Registration Statement" means a registration statement filed
-----------------------
pursuant to the Securities Act.
"Rights" has the meaning set forth in the preamble to this
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Agreement.
"Rights Offering" has the meaning set forth in the preamble to
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this Agreement.
"Rights Offering Registration Statement" means the
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Registration Statement on Form S-1 under the Securities Act or such other
appropriate form under the Securities Act, pursuant to which the Rights, the
underlying shares of Preferred Stock and shares of Class A Common Stock will be
registered pursuant to the Securities Act.
"Rule 144" means Rule 144 under the Securities Act, or any
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successor rule.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the Securities Act of 1933, as amended,
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and the rules and regulations of the SEC thereunder.
6
"Selling Shareholder" is defined in Section 2.3(a).
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"Shareholders" has the meaning set forth in the preamble to
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this Agreement.
"Shares" means, with respect to any Shareholder, all
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outstanding shares of Common Stock, Preferred Stock and other Voting Securities
of the Company, in each case, owned by such Shareholder, whether now owned or
hereafter acquired.
"Stock Purchase Agreement" has the meaning set forth in the
--------------------------
preamble to this Agreement.
"Subscription Price" has the meaning set forth in the preamble
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to this Agreement.
"Tag-Along Notice" is defined in Section 2.3(a).
----------------
"Tag-Along Notice Period" is defined in Section 2.3(b).
-----------------------
"Tag-Along Price" is defined in Section 2.3(a).
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"Tag-Along Shareholders" is defined in Section 2.3(a).
----------------------
"Tag-Along Shares" is defined in Section 2.3(b).
----------------
"Third Party Purchaser" is defined in Section 2.3(a).
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"13D Group" means any partnership, limited partnership,
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syndicate or other "group" (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended).
"Transfer" is defined in Section 2.1.
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"Transfer Restriction Period" means the period beginning on
-----------------------------
the date hereof and ending on (and including) the date which is the second
anniversary of the Closing.
"Voting Securities" means the Common Stock, any other
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securities of
7
the Company entitled to vote generally in the election of directors (including,
without limitation, the Six Percent (6%) Voting Cumulative Preferred Stock, par
value $0.25 per share, 10% Cumulative Convertible Voting Preferred Stock-Series
A, par value $0.025 per share, and 10% Cumulative Convertible Voting Preferred
Stock-Series B, par value $0.025 per share), or any securities convertible into
or exercisable or exchangeable for such securities (including the Preferred
Stock).
"Voting Securities Weighted Average Sale Price" means, when
-----------------------------------------------
applied to a Proposed Sale, the price obtained by dividing (a) the aggregate
consideration to be received from the sale of any Voting Securities in the
Proposed Sale by (b) the sum of (i) the number of shares of Common Stock to be
sold in the Proposed Sale, (ii) the number of shares of Common Stock to be
received upon conversion, exercise or exchange of any Voting Securities to be
sold in the Proposed Sale in accordance with the terms of such Voting Securities
and (iii) the number of shares of Voting Securities that are not convertible
into, exercisable for or exchangeable for shares of Common Stock to be sold in
the Proposed Sale.
ARTICLE II
LIMITATIONS ON TRANSFER
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2.1 General Restrictions on Transfer. (a) Each Existing
-----------------------------------
Shareholder agrees that such Existing Shareholder shall not, either directly or
indirectly, offer, sell, transfer, assign, mortgage, hypothecate, pledge, create
a security interest in or lien upon, encumber, donate, contribute, place in
trust, or otherwise voluntarily or involuntarily dispose of (any of the
foregoing actions, to "Transfer" and, any offer, sale, transfer, assignment,
mortgage, hypothecation, pledge, security interest or lien, encumbrance,
donation, contribution, placing in trust or other disposition, a "Transfer") any
Shares, or any interest therein, except in a transaction that is specifically
permitted by this Agreement.
(b) Any attempt to Transfer any Shares, or any interest
therein, which is not in compliance with this Agreement shall be null and void
ab initio. The Company shall not permit, and shall cause any transfer agent not
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to permit, any Transfer of Shares in violation of this Agreement. Neither the
Company nor any transfer agent shall give any effect in the Company's stock
records to such attempted Transfer.
8
(c) Notwithstanding any other provision of this Agreement,
no Transfer may be made pursuant to this Agreement unless:
(i) such Transfer complies in all respects with
the applicable provisions of this Agreement and applicable federal and
state securities laws, including, without limitation, the Securities
Act;
(ii) except in the case of a Transfer pursuant to
Section 2.2(a)(iv), 2.2(a)(v) or 2.2(c), the Transferee agrees in
writing with the Company and the other Shareholders to be bound by the
terms and conditions of this Agreement with respect to the Shares
Transferred to such Transferee to the same extent as the Existing
Shareholder who originally held such Shares is or was bound hereby
(whereupon such Transferee shall be entitled to the same rights as such
Existing Shareholder who originally held such Shares had with respect
to such Shares and shall be deemed to be an Existing Shareholder for
all purposes hereunder with respect to such Shares).
2.2 Certain Permitted Transfers. (a) Subject to Sections 2.1(c) and
---------------------------
2.2(b), after the Closing each Existing Shareholder may Transfer Shares:
(i) if such Existing Shareholder is a trust or
individual, to an Individual Permitted Transferee;
(ii) with the prior written consent of each of the
Investor Shareholders;
(iii) after the Transfer Restriction Period, to a
Third Party Purchaser in accordance with Section 2.3;
(iv) after the Transfer Restriction Period, in
an arm's length transaction pursuant to a Public Offering or Rule 144;
provided that the aggregate gross proceeds from all Transfers under
this clause (iv) shall not exceed the amounts described in clauses
(x) and (y):
(x) as to each Existing Shareholder, the amount of
proceeds realized from sales of securities from time to time pursuant
to Rule 144 and subject to the limitation as to amount of securities
sold specified in paragraph (e) of Rule 144, as in effect on the date
hereof, and
(y) the aggregate gross proceeds from all Public
Offerings shall not exceed an amount calculated on the date of such
Public Offering equal to the product of $2,000,000 and an amount equal
to (i) the
9
then Market Price of a share of Class A Common Stock divided by (ii)
the Market Price of a share of Class A Common Stock on the date hereof;
and
(v) to pay estate taxes if (1) any Existing
Shareholder, (2) any Individual Permitted Transferee which becomes a
shareholder of the Company, (3) any beneficiary of a trust which is an
Existing Shareholder, or (4) any Individual Permitted Transferee which
is the beneficiary of a trust or estate which becomes a shareholder of
the Company dies and estate taxes become due (provided that the
aggregate gross proceeds from all Transfers under this clause (v)
relating to the death of one individual shall not exceed an amount
calculated on the date of Transfer equal to the product of (a)
$5,000,000 and (b) an amount equal to (x) the then Market Price of a
share of Class A Common Stock divided by (y) the Market Price of a
share of Class A Common Stock on the date hereof).
(b) In the event that any Existing Shareholder wishes to
Transfer Shares in a transaction permitted by Section 2.2(a) (other than in
clause (iii)), such Existing Shareholder shall give written notice to the
Company and the other Shareholders of its intention to make such Transfer not
less than 10 days prior to effecting such Transfer, which notice shall state the
proposed timing of the Transfer, the name and address of each Permitted
Transferee to whom such Transfer is proposed (or in the case of Section
2.2(a)(iv), the aggregate gross proceeds from all prior Transfers pursuant to
Section 2.2(a)(iv) and the aggregate gross proceeds expected to be received from
the proposed Transfer) and the number and type of Shares proposed to be
Transferred.
(c) Notwithstanding anything contained in this Agreement,
(i) the Seneca Foods Corporation Employees' Pension Benefit Plan may Transfer
any Shares and (ii) the Seneca Foods Corporation Employees' Savings Plan may
Transfer any Shares in the ordinary course of business consistent with past
practice.
2.3 Tag-Along Right. (a) After the Transfer Restriction
----------------
Period, if any Existing Shareholder or Shareholders (each a "Selling Shareholder
and, collectively, the "Selling Shareholders") shall desire to sell any Shares
to any Person other than a Permitted Transferee (a "Third Party Purchaser") of
such Selling Shareholders (a "Proposed Sale"), then, such Selling Shareholders
shall offer the Investor Shareholders and the Existing Marks Shareholders (the
"Tag-Along Shareholders") the right to participate in the Proposed Sale with
-----------------------
respect to a number of Shares determined as provided in this Section 2.3 by
sending written notice (the
10
"Tag-Along Notice") to the Company and the Tag-Along Shareholders, which notice
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shall (i) state the number and type of Shares proposed to be sold in such
Proposed Sale by such Selling Shareholders (the "Proposed Sale Shares"), (ii)
--------------------
state the proposed purchase price per Proposed Sale Share for each type of
Proposed Sale Share (each, "a Proposed Sale Price") and all other material terms
---------------------
and conditions of such Proposed Sale and (iii) if applicable, be accompanied by
any written offer from the Third Party Purchaser. The "Tag Along Price" shall
---------------
mean the higher of the Common Stock Weighted Average Sale Price and the Voting
Securities Weighted Average Sale Price.
(b) Each Tag-Along Shareholder shall have the right to
require the Selling Shareholder to cause the Third Party Purchaser to purchase
from such Tag-Along Shareholder at the Tag-Along Price (and otherwise upon the
same terms and conditions as those set forth in the Tag-Along Notice) a number
of Shares that are Common Stock and/or Preferred Stock owned by such Tag-Along
Shareholder determined in accordance with this Section 2.3(b) (such Tag-Along
Shareholder's "Tag-Along Shares"); provided that if any Tag-Along Shares are
-----------------
Preferred Stock, the Tag-Along Price for such Shares shall be appropriately
adjusted by multiplying the Tag-Along Price by the number of shares of Common
Stock receivable upon conversion of one share of Preferred Stock. Each Tag-Along
Shareholder may sell a number of shares of Preferred Stock and/or Common Stock
which represents on a fully diluted basis a number of shares of Common Stock not
in excess of the product of (i) the total number of Proposed Sale Shares times
(ii) a fraction, the numerator of which is the total number of Shares of Common
Stock owned by such Tag-Along Shareholder (assuming the conversion of all shares
of Preferred Stock owned by such Tag-Along Shareholder into shares of Class A
Common Stock) and the denominator of which is the total number of Shares of
Common Stock owned by the Selling Shareholders and the Tag-Along Shareholders
(assuming the conversion of all shares of Preferred Stock owned by all Tag-Along
Shareholders into Shares of Class A Common Stock). Such right of each Tag-Along
Shareholder shall be exercisable by written notice to the Selling Shareholders
with copies to the Company given within 10 Business Days after receipt of the
Tag-Along Notice (the "Tag-Along Notice Period"), which notice shall state the
------------------------
number and type of Tag-Along Shares that such Tag-Along Shareholder elects to
sell in the Proposed Sale, if less than the maximum number of such Tag-Along
Shareholder's Tag-Along Shares that it is permitted to sell under this Section
2.3(b); provided that, if such notice shall not state a number of Tag-Along
--------
Shares, then such Tag-Along Shareholder will be deemed to have elected to sell
the maximum number of such Tag-Along Shareholder's Tag-Along Shares. Failure by
a Tag-Along Shareholder to
11
respond within the Tag-Along Notice Period shall be regarded as a rejection of
the offer made pursuant to the Tag-Along Notice. Each Tag-Along Shareholder that
elects to sell any or all of such Tag-Along Shareholder's Tag-Along Shares is
referred to in this Section 2.3 as a "Participating Tag-Along Shareholder" and
-------------------------------------
the number of Tag-Along Shares elected, or deemed to be elected, by such
Tag-Along Shareholder to be sold as provided above is referred to in this
Section 2.3 as such Tag-Along Shareholder's "Participating Tag-Along Shares."
-------------------------------
The number of Shares to be sold by the Selling Shareholders in the Proposed Sale
shall be reduced by the aggregate number of Participating Tag-Along Shares to be
sold pursuant to this Section 2.3 (assuming the conversion of any such
Participating Tag-Along Shares that are Preferred Stock into shares of Class A
Common Stock) by all Participating Tag-Along Shareholders.
(c) At the request of the Selling Shareholders made not less
than two Business Days prior to the proposed Transfer, a Participating Tag-Along
Shareholder shall deliver to the Selling Shareholders certificates representing
such Participating Tag-Along Shareholder's Participating Tag-Along Shares, duly
endorsed, in proper form for Transfer, together with a limited power-of-attorney
authorizing the Selling Shareholders to transfer such Participating Tag-Along
Shares to the Tag-Along Purchaser and to execute all other documents required to
be executed in connection with such transaction.
(d) If no Transfer of the Tag-Along Shares in accordance
with the provisions of this Section 2.3 shall have been completed within 100
days of the date of the Tag-Along Notice, then the Selling Shareholders shall
promptly return to the Participating Tag-Along Shareholder, in proper form, all
certificates representing such Participating Tag-Along Shareholder's
Participating Tag-Along Shares and the limited power-of-attorney previously
delivered by such Participating Tag-Along Shareholder to the Selling
Shareholders.
(e) The closing of the sale of the Participating Tag-Along
Shares by the Participating Tag-Along Shareholders shall be held at the same
place and time as the closing of the sale by the Selling Shareholders in the
Proposed Sale. Promptly after the consummation of the Transfer of the
Participating Tag-Along Shares pursuant to this Section 2.3, each Participating
Tag-Along Shareholder shall receive (i) the consideration with respect to the
Participating Tag-Along Shares so Transferred and (ii) such other evidence of
the completion of such Transfer and the terms and conditions (if any) thereof as
may reasonably be requested by such Participating Tag-Along Shareholder.
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(f) The provisions of this Section 2.3 shall remain in effect,
notwithstanding any return to any Participating Tag-Along Shareholder of
Participating Tag-Along Shares as provided in Section 2.3(d).
(g) Notwithstanding anything to the contrary in this
Agreement, the provisions of this Section 2.3 shall not be applicable to any
Transfer proposed to be made by a Selling Shareholder pursuant to Sections
2.2(a)(i), 2.2(a)(ii), 2.2(a)(iv), or 2.2(a)(v).
ARTICLE III
RIGHT TO PARTICIPATE IN CERTAIN
ISSUANCES OF CAPITAL STOCK
-------------------------------
3.1 Right to Participate in New Issuance. If the Company determines to
---------------------------------------
issue any Voting Securities (other than capital stock to be issued (i) in
connection with an employee stock option plan or other bona fide employment
compensation arrangement that is approved by the Company's Board of Directors,
(ii) pursuant to a stock split or stock dividend, (iii) pursuant to the exercise
of any option, warrant or convertible security theretofore issued, (iv) as
consideration in connection with a bona fide acquisition by the Company or any
of its subsidiaries, or (v) pursuant to the Rights Offering (each such issuance
not excluded by the immediately preceding parenthetical being herein referred to
as a "New Issuance")), then the Company shall notify each Investor Shareholder
and each Existing Marks Shareholder of the proposed New Issuance. Such notice
shall specify the number and class of securities to be issued, the rights, terms
and privileges thereof and the estimated price at which such securities will be
issued.
3.2 Exercise of Right. By written notice to the Company given within
------------------
15 days of being notified of such New Issuance, each Investor Shareholder and
each Existing Marks Shareholder shall be entitled to purchase that percentage of
the New Issuance determined by dividing (a) the total number of outstanding
shares of Class A Common Stock owned by such Investor Shareholder or Existing
Marks Shareholder (assuming the conversion of all shares of the Preferred Stock
owned by such Investor Shareholder or Existing Marks Shareholder into Class A
Common Stock) by (b) the total number of outstanding shares of Class A Common
Stock (assuming the conversion of all shares of the Preferred Stock into Class A
Common Stock). If any such Investor Shareholder or Existing Marks Shareholder
does not fully subscribe for the number or amount of Voting Securities that it
is entitled to
13
purchase pursuant to this Article III, the Company shall notify the Investor
Shareholders of the same and each Investor Shareholder and Existing Marks
Shareholder participating in such purchase to the full extent provided for in
the preceding sentence shall have the right to purchase that percentage of the
New Issuance not so subscribed for, based on a fraction, the numerator of which
is the total number of shares of Class A Common Stock then owned by such fully
participating Investor Shareholder or Existing Marks Shareholder (assuming the
conversion of all shares of the Preferred Stock owned by such Investor
Shareholder or Existing Marks Shareholder into Class A Common Stock) and the
denominator of which is the total number of shares of Class A Common Stock then
owned by all fully participating Investor Shareholders and Existing Marks
Shareholders who elect to purchase such unsubscribed securities (assuming the
conversion of all shares of the Preferred Stock owned by all such Investor
Shareholders and Existing Marks Shareholders into Class A Common Stock). Such
right shall be exercisable within 15 days following the receipt of the notice
delivered pursuant to the previous sentence. To the extent the Investor
Shareholders and Existing Marks Shareholders do not elect to purchase all of the
securities proposed to be offered and sold in the New Issuance, the Company may
issue those securities not so subscribed for, provided that such sales are
--------
consummated within 120 days after the rights of the Investor Shareholders and
the Existing Marks Shareholders hereunder have expired or been waived.
3.3 Closing. The closing of the New Issuance shall be held at such time as
-------
the Company shall designate in writing to the Investor Shareholders and the
Existing Marks Shareholders that elect to purchase securities in the New
Issuance pursuant to this Article III not fewer than five Business Days prior to
the date of such closing, at the Company's principal offices, or at another
place designated by the Company in writing to such Investor Shareholders in such
notice.
14
ARTICLE IV
AGREEMENT OF THE SHAREHOLDERS
TO ACT IN FAVOR OF THE STOCK
PURCHASE AGREEMENT TRANSACTIONS
-------------------------------
4.1 Vote in Favor of the Stock Purchase Agreement Transactions.
------------------------------------------------------------------
The Existing Shareholders hereby irrevocably and unconditionally agree to vote,
or to cause to be voted, all of their Shares at the Company Special Meeting and
at any other annual or special meeting of shareholders of the Company where the
following matters arise: (a) in favor of the approval and adoption of the Stock
Purchase Agreement and the transactions contemplated by the Stock Purchase
Agreement, this Agreement and the Registration Rights Agreement (as defined in
the Stock Purchase Agreement) (including, without limitation, the approval of
the purchase of shares of Preferred Stock by the Investor Stockholders), (b) the
approval of the Certificate of Amendment and (c) against approval of any
proposal made in opposition to the matters set forth in clause (a) (which may
include (i) any merger, consolidation, sale of assets, business combination,
share exchange, reorganization or recapitalization of the Company or any of its
subsidiaries, with or involving any party, (ii) any liquidation or winding up of
the Company, (iii) any extraordinary dividend by the Company, (iv) any change in
the capital structure of the Company (other than pursuant to the Stock Purchase
Agreement and the Certificate of Amendment) and (v) any other action that may
reasonably be expected to impede, interfere with, delay, postpone or attempt to
discourage the transactions contemplated by the Stock Purchase Agreement, this
Agreement and the Registration Rights Agreement or result in a breach of any of
the covenants, representations, warranties or other obligations or agreements of
the Company under the Stock Purchase Agreement, this Agreement and the
Registration Rights Agreement) which would materially and adversely affect the
Company or its ability to consummate the transactions contemplated by the Stock
Purchase Agreement, this Agreement and the Registration Rights Agreement.
4.2 Renounce and Cease from Transferring the Rights. The Existing
--------------------------------------------------
Shareholders hereby irrevocably and unconditionally agree not to exercise, in
whole or in part, any of the Rights granted to such Existing Shareholder
pursuant to the terms of the Rights Offering, to subscribe for any shares of
Preferred Stock pursuant to the terms of any such Rights or to Transfer any of
such Rights (or any interest therein) to any Person.
15
ARTICLE V
CORPORATE GOVERNANCE
AND CERTAIN OTHER ACTIONS
-------------------------
5.1 General. Each Existing Shareholder and each Existing Marks Shareholder
-------
shall vote its Shares at any regular or special meeting of shareholders of the
Company, or in any written consent executed in lieu of such a meeting of
shareholders, and shall take all other actions necessary, to give effect to the
provisions of this Agreement (including, without limitation, Section 5.2
hereof), and to ensure that the Charter Documents do not, at any time hereafter,
conflict in any respect with the provisions of this Agreement.
5.2 Election of Directors. After the Closing, the Existing Shareholders
----------------------
and the Existing Marks Shareholders agree that, except as they may otherwise
agree in writing, the number of directors constituting the entire Board of
Directors shall be no more than nine and shall include at all times two
individuals designated by the Investor Shareholders (the "Investor Designees").
The initial individuals designated by the Investor Shareholders shall be
designated in accordance with Section 3.1.3 of the Stock Purchase Agreement.
During the term of this Agreement, the Board of Directors shall nominate a
number of individuals designated by the Investor Shareholders for election as
directors at each annual meeting such that after such annual meeting (assuming
such individuals are elected) at least two individuals on the Board of Directors
shall have been designated for election as a director by the Investor
Shareholders in accordance with this Section 5.2. After the Closing, any
committee of the Board of Directors shall include at all times a number of
Investor Designees equal to the product of 22% and the total number of directors
on such committee (rounded up to the next whole number).
5.3 Removal and Replacement. (a) The Investor Shareholders shall be
------------------------
entitled at any time and for any reason (or for no reason) to designate any or
all of the Investor Designees on the Board of Directors for removal or to inform
the Company that such designees should not be re-nominated for election pursuant
to Section 5.2. In such a case, the Board of Directors shall not re-nominate any
such director and shall take any action reasonably requested by the Investor
Shareholders to effect any requested removal of such a director. Notwithstanding
the foregoing, the Board of Directors shall not be obligated to: (i) remove any
director if such removal is not permitted by the Charter Documents or (ii) call
a special meeting of shareholders to remove such a director.
(b) If at any time a vacancy is created on the Board of
16
Directors by reason of the death, removal or resignation of any Investor
Designee, then the Investor Shareholders shall, as soon as practicable
thereafter, designate a replacement director and, as soon as practicable
thereafter, each of the Existing Shareholders, the Existing Marks Shareholders
and the existing Board of Directors shall take action (including, if necessary,
the voting of any Shares by the Existing Shareholders and the Existing Marks
Shareholders) to elect or cause the election of such replacement director in
accordance with Section 5.2.
(c) If at any time a vacancy is created on the Board of
Directors by reason of the death, removal or resignation of any of the Investor
Designees, then the Board of Directors shall not conduct any business (other
than business incident to the designation and election of a replacement director
in accordance with this Section 5.3) until a replacement director has been
designated by the Investor Shareholders in accordance with Section 5.2; provided
that the foregoing restriction on the transaction of business shall terminate on
the earlier to occur of (i) the 20th day after the creation of such vacancy and
(ii) the day after the date (following such vacancy) on which the Company has
notified the Investor Shareholders in writing that the directors must take
action in order to fulfill their fiduciary duties, in each case, if no such
replacement director has been designated.
ARTICLE VI
AFTER-ACQUIRED SECURITIES
-------------------------
Except as otherwise provided in Section 8.9(b), all of the provisions of
this Agreement shall apply to all of the Shares now owned or that may be issued
or transferred hereafter to a Shareholder in consequence of any additional
issuance, purchase, conversion, exchange or reclassification of any of the
Preferred Stock, Common Stock or other Voting Securities (including without
limitation, upon the exercise of any option or warrant), corporate
reorganization, or any other form of recapitalization, consolidation, merger,
share split or share dividend, or that are acquired by a Shareholder in any
other manner, and, in the case of any such event, appropriate adjustment shall
be made to any number of Voting Securities hereunder to take account of such
event. The provisions of the immediately preceding sentence shall be effective
with respect to such Shares without action by any person or entity immediately
upon the acquisition by the Shareholder of beneficial ownership of such
additional Shares.
17
ARTICLE VII
STOCK CERTIFICATE RESTRICTIONS
------------------------------
7.1 Beneficial Ownership. Each Existing Shareholder agrees to hold
---------------------
as the owner of record any Voting Securities now or hereafter beneficially owned
by such Existing Shareholder.
7.2 Liquidated Damages. The Investor Shareholders and the Existing
-------------------
Shareholders agree that it would be extremely difficult to calculate the damage
to be caused to the Investor Shareholders should any Existing Shareholder breach
this Agreement by Transferring any Shares in violation of this Agreement (a
"Liquidated Damages Breach"). Accordingly, the Investor Shareholders and the
--------------------------
Existing Shareholders have made a good faith effort to preestimate the damages,
costs, losses and injuries the Investor Shareholders will sustain by reason of
such Liquidated Damages Breach. Accordingly, to the extent that the Investor
Shareholders do not seek damages or specific performance in accordance with
Section 8.5, the Existing Shareholders agree to pay to the Investor Shareholders
100% of the proceeds received by each Existing Shareholder from any third party
as a result of any Transfer constituting any such Liquidated Damages Breach.
The Existing Shareholders acknowledge that the liquidated damages
provided for herein are not a penalty and are not unreasonable or
disproportionate to the probable loss to be suffered by the Investor
Shareholders in the event of a Liquidated Damages Breach.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing and shall be delivered personally,
telecopied or sent by certified, registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally, telecopied
or sent by certified, registered or express mail or, if mailed, five days after
the date of deposit in the United States mail, as follows:
18
If to the Company:
-----------------
Seneca Foods Corporation
0000 Xxxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxxxxxx & Mugel, LLP
Fleet Bank Building
Twelve Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Investor Shareholders:
-------------------------------
Xxxx Xxxxx Strategic Investments, L.P.
Xxxx Xxxxx Strategic Investments II, L.P.
Uranus Fund, Ltd.
c/o Xxxx Xxxxx Management Company, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
If to the Existing Marks Shareholders:
-------------------------------------
CMCO, Inc.
Xxxxx X. Xxxxx
19
Xxxxx Xxxxx
Xxxxxxxx Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Operating Officer of CMCO, Inc.
If to the Existing Shareholders:
-------------------------------
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxx
0000 Xxxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxx
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Xxxx Xxxxxx
000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
20
Xxxx Xxxxxx
00 Xxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxxxxxx, as Trustee of certain Xxxxxx family trusts
Xxxxxxxxxxx, D'Xxxxxx, Xxxxxxxxxxx & Xxxxxxxxxx
0000 Xxxxxxxxxx Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxx X. Xxxxxxx
0 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Xxxx Xxxxxxx
0 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxxxxxxx Xxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxx
000 Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
00
Xxxxx Xxxxxx
000 Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000
Any party may, by notice given in accordance with this Section 8.1, designate
another address or person for receipt of notices hereunder.
8.2 Authority and Effect of Agreement. (a) Each Shareholder represents
---------------------------------
and warrants to the other parties hereto as follows: (i) such party has all
requisite power, authority and legal capacity to enter into this Agreement and
perform such party's obligations hereunder; (ii) if such party is a corporation
or partnership, the execution and delivery of this Agreement by such party and
the performance of such party's obligations hereunder have been duly authorized
by all necessary corporate or partnership action, as the case may be, on the
part of such party; (iii) as of the date hereof, if such party is a trustee,
such Shareholder as trustee owns the number and type of shares set forth on
Schedule 8.2 hereto; (iv) as of the date hereof, such Shareholder beneficially
owns or is the beneficiary of a trust which owns the number and type of Shares
set forth on Schedule 8.2 hereto; and (v) this Agreement has been duly executed
and delivered by and (assuming this Agreement constitutes a valid and binding
agreement of the other parties) constitutes a valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to or affecting creditors' rights
generally.
(b) Each Existing Shareholder has full legal power, authority
and right to vote all of the Shares owned by it on the date hereof in the manner
set forth in Articles IV and V hereof, without the consent or approval of, or
any other action on the part of, any other person or entity. Without limiting
the generality of the foregoing, except for this Agreement, and as disclosed on
Schedule 8.2, each Existing Shareholder is not a party to any voting agreement
with any Person with respect to any of the Shares owned by it on the date
hereof, granted any Person any proxy (revocable or irrevocable) or power of
attorney with respect to any of such Shares, deposited any of such Shares in a
voting trust or entered into any arrangement or agreement with any person or
entity limiting or affecting any of its legal power, authority or right to vote
such Shares in the manner set forth in Articles IV and V hereof. From and after
the date hereof, the Existing Shareholders will not commit any act that could
restrict or otherwise affect such legal power, authority and right to vote the
Shares owned by them in the manner set forth in Articles IV and V hereof.
Without limiting the generality of the foregoing, from and after the date
hereof, the Existing Shareholders will not enter into any voting agreement with
any person or
22
entity with respect to any of the Shares owned by them, grant any person or
entity any proxy (revocable or irrevocable) or power of attorney with respect to
any of such Shares, deposit any of such Shares into a voting trust or otherwise
enter into any agreement or arrangement limiting or affecting their legal power,
authority or right to vote such Shares in the manner set forth in Articles IV
and V hereof.
8.3 Action By Written Consent. If, in lieu of any annual or special
-------------------------
shareholder meeting of the Company, action is taken by written consent, the
provisions of this Agreement imposing obligations in respect of or in connection
with such shareholder meeting shall apply mutatis mutandis to such action by
written consent.
8.4 Amendment and Waiver.(a) Any amendment, supplement or modification
--------------------
of or to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective:
(i) only if it is made or given in writing and signed
by each of the Shareholders; and
(ii) only in the specific instance and for the
specific purpose for which it was made or given.
(b) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the parties
hereto at law, in equity or otherwise.
8.5 Specific Performance. The parties hereto intend that each of
---------------------
the parties has the right to seek damages or specific performance in the event
that any other party hereto fails to perform such party's obligations hereunder.
Therefore, if any party shall institute any action or proceeding to enforce the
provisions hereof, any party against whom such action or proceeding is brought
hereby waives any claim or defense therein that the plaintiff party has an
adequate remedy at law.
8.6 Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
23
8.7 Severability. If any one or more of the provisions contained
------------
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
8.8 Entire Agreement. This Agreement supersedes any other agreement,
----------------
whether written or oral, that may have been made or entered into between the
parties hereto, and constitutes the entire agreement by the parties hereto,
related to the matters specified herein.
8.9 Term of Agreement. (a) This Agreement shall become effective
------------------
upon the execution hereof and shall terminate on the earlier of: (i) the date on
which the Stock Purchase Agreement is terminated pursuant to Section 9 of the
Stock Purchase Agreement, (ii) after the Closing, the date on which the Investor
Shareholders cease to own in the aggregate at least 10% of the outstanding Class
A Common Stock (assuming conversion of all shares of Preferred Stock into Class
A Common Stock) or (iii) such earlier date as the Shareholders shall unanimously
agree in writing to terminate this Agreement.
(b) Notwithstanding Section 8.9(a), this Agreement shall
terminate permanently as to any Shareholder at such time as such Shareholder no
longer owns any Shares.
8.10 GOVERNING LAW. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED
-------------
AND DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
8.11 Further Assurances. Each of the parties shall, and shall cause
-------------------
their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
8.12 Successors and Assigns; Power of Certain Representatives.
--------------------------------------------------------
(a) This Agreement shall be binding upon and inure to the benefit of
24
the parties and their respective successors and permitted assigns. This
Agreement is not assignable except in connection with a transfer of Shares in
accordance with this Agreement.
(b) For the purpose of any notice, consent, waiver, approval
or action given or taken hereunder, Xxxx Xxxxx Management Company, L.P. shall be
deemed to be the representative of the Investor Shareholders and any such
notice, consent, waiver, approval or action so given or made shall be binding
upon the Investor Shareholders.
8.13 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
25
IN WITNESS WHEREOF, the parties hereto have signed and
delivered this Agreement as of the date first above written.
COMPANY:
-------
SENECA FOODS CORPORATION
By:/s/Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
INVESTOR SHAREHOLDERS:
---------------------
XXXX XXXXX STRATEGIC INVESTMENTS,
L.P.
By: Xxxx Xxxxx Management Company,
L.P.; its general partner
By:/s/Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
XXXX XXXXX STRATEGIC
INVESTMENTS II, L.P.
By: Xxxx Xxxxx Management Company,
L.P., its general partner
By:/s/Xxxxxx X. Xxxx
----------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
S-1
URANUS FUND, LTD.
By: Xxxx Xxxxx Offshore Management, Inc.,
its Investment Manager
By:/s/Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title:President
EXISTING MARKS SHAREHOLDERS:
CMCO, INC.
By:/s/Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
------------------------------
Xxxxx X. Xxxxx
------------------------------
Xxxxx Xxxxx
------------------------------
Xxxxxxxx Xxxx
EXISTING SHAREHOLDERS:
------------------------------
Xxxxxx X. Xxxxxxx, Individually and
as Trustee
S-2
------------------------------
Xxxxxx X. Xxxxxxx, as Trustee
------------------------------
Xxxxx X. Xxxxxx, Individually and as
Trustee for certain Xxxxxx family
trusts
------------------------------
Xxxxx X. Xxxxxx, Individually and as
Trustee for Alexius Xxxx Xxxxxx and
Xxxx Xxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
------------------------------
Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxx Xxxxxxxxxxx, as Trustee of
certain Xxxxxx family trusts
------------------------------
Xxxx X. Xxxxxxx, Individually and as
Trustee for Xxxx Xxxxxxxx Xxxxxxx
and Xxxxxxxxx Xxxx Xxxxxxx
S-3
------------------------------
Xxxx Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, Individually and
as Trustee for Xxxxxxx Xxxx Xxxxxxx,
Xxxxxxx Xxxxxxx Xxxxxxx and Xxxxx
Xxxxxx Xxxxxxx
------------------------------
Xxxxxxxxx Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, Individually and
as Trustee for Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx and
Xxxxxx Xxxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxxx
X-0
