Exibit 10.2
SHAREHOLDER AGREEMENT
BY AND BETWEEN
XXXXXXX CORPORATION,
A DELAWARE CORPORATION,
POHLAD COMPANIES,
A MINNESOTA CORPORATION
DAKOTA HOLDINGS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
AND
XXXXXX XXXXXX
DATED AS OF NOVEMBER 30, 2000
TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Certain Definitions............................................................ 1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company ................................. 6
Section 2.2. Representations and Warranties of the Shareholder ............................. 6
ARTICLE III
SHAREHOLDER AND COMPANY CONDUCT
Section 3.1. Acquisition of Voting Securities............................................... 7
Section 3.2. Required Reduction of Ownership Percentage .................................... 8
Section 3.3. Top-Up Rights.................................................................. 9
Section 3.4. Charter and By-Laws........................................................... 10
Section 3.5. Rights Agreement.............................................................. 10
Section 3.6. No Agreements................................................................. 10
Section 3.7. Dakota Holdings............................................................... 10
Section 3.8. Special Meetings Requested by the Shareholder; Nominations.................... 11
Section 3.9. Options....................................................................... 11
ARTICLE IV
BOARD COMPOSITION; CHIEF EXECUTIVE
Section 4.1. Board Composition; Chief Executive ........................................... 11
ARTICLE V
EFFECTIVENESS AND TERMINATION
Section 5.1. Effectiveness................................................................. 11
Section 5.2. Termination................................................................... 12
ARTICLE VI
MISCELLANEOUS
Section 6.1. Injunctive Relief............................................................. 12
Section 6.2. Successors and Assigns........................................................ 12
Section 6.3. Amendments; Waiver............................................................ 12
Section 6.4. Notices....................................................................... 13
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Section 6.5. Applicable Law................................................................ 13
Section 6.6. Headings...................................................................... 14
Section 6.7. Integration................................................................... 14
Section 6.8. Severability.................................................................. 14
Section 6.9. Consent to Jurisdiction....................................................... 14
Section 6.10. Counterparts................................................................. 14
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SHAREHOLDER AGREEMENT, dated as of November 30, 2000 (this
"AGREEMENT"), by and between Xxxxxxx Corporation, a Delaware corporation (the
"COMPANY"), Pohlad Companies, a Minnesota corporation, Dakota Holdings, LLC,
a Delaware limited liability company ("DAKOTA HOLDINGS") and Xxxxxx Xxxxxx.
W I T N E S S E T H:
WHEREAS, the Company, Anchor Merger Sub, Inc., a Delaware corporation
("MERGER SUB"), and PepsiAmericas, Inc., a Delaware corporation ("PAS"), have
entered into an Agreement and Plan of Merger, dated as of August 18, 2000
(the "MERGER AGREEMENT"), pursuant to which, among other things, PAS will be
merged with and into Merger Sub, with Merger Sub as the surviving
corporation, and in connection therewith, certain outstanding shares of
common stock of PAS will be converted into shares of common stock, par value
$0.01 per share (the "COMMMON STOCK"), of the Company (the "MERGER");
WHEREAS, the execution of this Agreement upon the consummation of the
Merger (the "CLOSING") is a covenant of the Company and PAS in the Merger
Agreement and a condition to the Company's obligations to close the
transactions contemplated by the Merger Agreement;
WHEREAS, Dakota Holdings is a shareholder of PAS and will be
receiving Common Stock in the Merger;
WHEREAS, Pohlad Companies is the managing member of Dakota Holdings;
and
WHEREAS, in light of the transactions contemplated by the Merger
Agreement, the Company and the Shareholders (as defined herein) desire to set
forth in this Agreement certain terms and conditions concerning the
acquisition and disposition of Voting Securities (as defined herein) of the
Company by the Shareholder Group (as defined herein), and related provisions
concerning the Shareholder Group's relationship with and investment in the
Company immediately following the Closing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration,
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. CERTAIN DEFINITIONS. In addition to other terms defined
elsewhere in this Agreement, as used in this Agreement, the following terms
shall have the meanings ascribed to them below:
"AFFILIATE" shall mean, with respect to any person, any other person
that directly or indirectly through one or more intermediaries controls or is
controlled by or is under common
control with such person. For the purposes of this definition, "control,"
when used with respect to any particular person, means the power to direct
the management and 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.
"AFFILIATED TRANSACTION COMMITTEE" shall mean the Affiliated
Transaction Committee of the Board.
"AGREEMENT" shall have the meaning assigned to such term in the
preamble.
"BENEFICIAL OWNER" (and, with correlative meanings, "BENEFICIALLY
OWN" and "BENEFICIAL OWNERSHIP") of any interest means a Person who, together
with his or its Affiliates, is or may be deemed a beneficial owner of such
interest for purposes of Rule 13d-3 or 13d-5 under the Exchange Act, or who,
together with his or its Affiliates, has the right to become such a
beneficial owner of such interest (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise, conversion or exchange of
any warrant, right or other instrument, or otherwise; PROVIDED that a Person
shall not be deemed the Beneficial Owner of Voting Securities solely as a
result of having been granted a revocable proxy relating to such Voting
Securities in connection with any one special or annual meeting of
shareholders of the Company (including any postponements or adjournments
thereof), nor shall the procurement of such a proxy be deemed to give the
proxy holder "control" over any Person as to which such proxy holder does not
otherwise have control; and PROVIDED, FURTHER, that this definition shall be
subject to the last sentence of Section 3.7.
"BOARD" shall mean the Board of Directors of the Company in office at
the applicable time, as elected in accordance with the By-Laws.
"BUY-BACK EXCESS" shall have the meaning set forth in Section 3.2 of
this Agreement.
"BUY-BACK OFFER" shall have the meaning set forth in Section 3.2 of
this Agreement.
"BY-LAWS" shall mean the by-laws of the Company, as in effect
immediately following consummation of the Merger (including amendments
pursuant to the Merger Agreement), as they may be amended from time to time.
"CHARTER" shall mean the Certificate of Incorporation of the Company,
as in effect immediately following consummation of the Merger, as it may be
amended from time to time.
"CLOSING" shall have the meaning assigned in the second recital of
this Agreement.
"COMBINED MAXIMUM OWNERSHIP PERCENTAGE" shall mean, calculated at a
particular point in time, a Total Ownership Percentage of 49.9%; PROVIDED
that in the event of a Permitted Acquisition (other than a Contingent Payment
Acquisition) which results in the
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Significant Shareholders' Total Ownership Percentage exceeding 49.9%, so long
as the Significant Shareholders' Total Ownership Percentage exceeds 49.9% due
to such Permitted Acquisition, the Combined Maximum Ownership Percentage
shall become the Significant Shareholders' Total Ownership Percentage giving
effect to such Permitted Acquisition.
"COMMISSION" shall mean the United States Securities and Exchange
Commission.
"COMMON STOCK" shall have the meaning assigned in the first recital
of this Agreement.
"COMPANY" shall have the meaning assigned in the preamble.
"CONTINGENT PAYMENT ACQUISITION" shall mean any acquisition of Voting
Securities pursuant to any Contingent Payment (as defined in the Merger
Agreement).
"DAKOTA HOLDINGS AGREEMENT" shall have the meaning set forth in
Section 3.7 of this Agreement.
"DIRECTOR" shall mean any member of the Board of Directors of the
Company in office at the applicable time, as elected in accordance with the
provisions of the By-Laws.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"FAMILY" shall mean, with respect to any natural person, (i) any
child, stepchild, parent, stepparent, spouse or sibling, and (ii) any
grandchild, grandparent, uncle, aunt, first cousin, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law
who Beneficially Owns greater than 1% of the Voting Power or who has entered
into an agreement or commitment with said natural person with respect to the
Voting Securities, and shall in each case include adoptive relationships.
"INDEPENDENT DIRECTOR" shall mean any person who is both (i)
independent of and otherwise unaffiliated with any member of the Shareholder
Group or the PepsiCo Group, and who is not a director, officer, employee,
consultant or advisor (financial, legal or other) of any member of the
Shareholder Group or the PepsiCo Group and has not served in any such
capacity in the previous two (2) years and (ii) not an officer or employee,
consultant or advisor (financial, legal or other) of the Company and has not
served in any such capacity in the previous two (2) years.
"MAXIMUM OWNERSHIP PERCENTAGE" shall mean, calculated at a particular
point in time, a Total Ownership Percentage equal to the "Shareholder Group's
Closing Ownership Percentage," which shall mean the Shareholder Group's Total
Ownership Percentage calculated as of Closing (giving full effect to the
conversion in the Merger of PAS common stock into Company Common Stock) on a
fully diluted basis (i) including purchases to be made in connection with the
Merger (including the right of Dakota Holdings to purchase Subscription
Shares (as defined in the Merger Agreement) pursuant to Section 4.7 of the
Merger Agreement (the "Subscription Rights") and the right of Pohlad
Companies or an affiliate thereof to acquire Common Stock with a value of $25
million from the PepsiCo Group (the "Pepsi Rights")) and
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(ii) assuming conversion of all options (other than the Subscription Rights
and the Pepsi Rights included in (i) above, but, including, without
limitation, options to acquire shares of PAS stock Beneficially Owned by
members of the Shareholder Group); PROVIDED that in the event of a Permitted
Acquisition (including any Contingent Payment Acquisition) which results in
the Shareholder Group's Total Ownership Percentage exceeding the Shareholder
Group's Closing Ownership Percentage, so long as the Shareholder Group's
Total Ownership Percentage exceeds Shareholder Group's Closing Ownership
Percentage due to such Permitted Acquisition, the Maximum Ownership
Percentage shall become the Shareholder Group's Total Ownership Percentage
giving effect to such Permitted Acquisition.
"MERGER" shall have the meaning set forth in the first recital of
this Agreement.
"MERGER AGREEMENT" shall have the meaning set forth in the first
recital of this Agreement.
"NYSE" shall mean the New York Stock Exchange, Inc.
"PEPSICO" shall mean PepsiCo, Inc., a North Carolina corporation.
"PEPSICO AFFILIATE" shall mean any Affiliate of PepsiCo (other than
the Company or its subsidiaries).
"PEPSICO GROUP" shall mean PepsiCo, any PepsiCo Affiliate, any
Permitted Significant Transferee (as defined in the PepsiCo Shareholder
Agreement) and any Person with whom PepsiCo, any PepsiCo Affiliate or any
Permitted Significant Transferee is part of a 13D Group, but shall exclude
any member of the Pohlad Group.
"PEPSICO SHAREHOLDER AGREEMENT" shall mean the Amended and Restated
Shareholder Agreement, dated as of November 30, 2000, by and between the
Company and PepsiCo.
"PERMITTED ACQUISITION" shall mean the acquisition of Voting
Securities pursuant to (1) a transaction or series of transactions that would
not result, individually or in the aggregate, in any member of the
Shareholder Group, singly or as part of a partnership, limited partnership,
syndicate or other 13D Group, directly or indirectly, acquiring, proposing to
acquire, or publicly announcing or otherwise disclosing an intention to
propose to acquire, or offering or agreeing to acquire, by purchase or
otherwise, Beneficial Ownership of any Security so as to cause either (x) the
Shareholder Group's Total Ownership Percentage to exceed the Maximum
Ownership Percentage or (y) the Significant Shareholders' Total Ownership
Percentage to exceed the Combined Maximum Ownership Percentage, (2) the
acquisition of Voting Securities pursuant to any Contingent Payment
Acquisition or pursuant to any transaction contemplated by the Merger
Agreement, (3) the acquisition of Voting Securities pursuant to the right of
Dakota Holdings to acquire Common Stock with a value of $25 million from the
PepsiCo Group, in connection with the Merger; (4) a transaction (including
the grant of any options to purchase Common Stock granted to any member of
the Shareholder Group) approved by the Affiliated Transaction Committee (or,
if such Committee shall not be in existence, by a committee of the Board
composed entirely of Independent Directors), or (5) any acquisition of Voting
Securities by the PepsiCo Group permitted under the PepsiCo Shareholder
Agreement.
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"PERSON" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government or department or
agency of a government.
"REPURCHASE" shall have the meaning set forth in Section 3.2 of this
Agreement.
"RIGHTS AGREEMENT" shall mean the Shareholder Rights Agreement, dated
as of May 20, 1999, as amended.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SHAREHOLDERS" shall mean, collectively Pohlad Companies, Dakota
Holdings and Xxxxxx Xxxxxx, provided that Pohlad Companies shall only be
deemed a Shareholder under this Agreement so long as Pohlad Companies is a
member of the Shareholder Group.
"SHAREHOLDER GROUP" shall mean Xxxxxx Xxxxxx, any Affilate of Xxxxxx
Xxxxxx (other than the Company or its subsidiaries), any member of Xxxxxx
Xxxxxx'x Family, and any Person with whom Xxxxxx Xxxxxx, any Affiliate of
Xxxxxx Xxxxxx or any member of Xxxxxx Xxxxxx'x Family is part of a 13D Group.
"SIGNIFICANT SHAREHOLDERS" shall mean, collectively, the Shareholder
Group and the PepsiCo Group.
"13D GROUP" shall mean any group of Persons acquiring, holding,
voting or disposing of any Voting Security which would be required under
Section 13(d) of the Exchange Act and the rules and regulations thereunder to
file a statement on Schedule 13D with the Commission as a "person" within the
meaning of Section 13(d)(3) of the Exchange Act; PROVIDED that a Person shall
not be deemed to be part of a 13D Group with another Person solely as a
result of having been granted a revocable proxy relating to such Person's
Voting Securities in connection with any one special or annual meeting of
shareholders of the Company (including any postponements or adjournments
thereof); PROVIDED, FURTHER, that the members of the Shareholder Group shall
not be deemed to be part of a 13D Group with any member of the PepsiCo Group
solely due to ownership of interests in Dakota Holdings so long as all
members of the Shareholder Group are in compliance with the proviso in the
first sentence of Section 3.7.
"TOTAL OWNERSHIP PERCENTAGE" shall mean, calculated at a particular
point in time, the Voting Power represented by the Voting Securities
Beneficially Owned by the Person (or Persons) whose Total Ownership
Percentage is being determined.
"TOTAL VOTING POWER" shall mean, calculated at a particular point in
time, the aggregate Votes represented by all then outstanding Voting
Securities.
"TRADING DAY", with respect to a Voting Security, shall mean a day on
which the principal national securities exchange on which such Voting
Security is listed or admitted to trading is open for the transaction of
business or, if such security is not listed or admitted to trading on any
national securities exchange, any day other than a Saturday, Sunday or a day
on which banking institutions in the City of New York are authorized or
obligated to close.
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"TRANSFER" shall mean any sale, transfer, pledge, encumbrance or
other disposition to any Person, and to "TRANSFER" shall mean to sell,
transfer, pledge, encumber or otherwise dispose of to any Person.
"VOTES" shall mean votes entitled to be cast generally in the
election of Directors, assuming the conversion of any securities then
convertible into Common Stock or shares of any other class of capital stock
of the Company then entitled to vote generally in the election of Directors.
"VOTING POWER" shall mean, calculated at a particular point in time,
the ratio, expressed as a percentage, of (a) the Votes represented by the
Voting Securities with respect to which the Voting Power is being determined
to (b) Total Voting Power.
"VOTING SECURITIES" shall mean the Common Stock and shares of any
other class of capital stock of the Company then entitled to vote generally
in the election of Directors and any securities then convertible into Common
Stock or shares of any other class of capital stock of the Company then
entitled to vote generally in the election of Directors.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Shareholders as of the date hereof as
follows:
(a) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has all necessary corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the
Company and all necessary and appropriate action has been taken by the
Company to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) This Agreement has been duly executed and delivered by the
Company and assuming due authorization and valid execution and delivery
by each of the Shareholders, this Agreement is a valid and binding
obligation of the Company, enforceable against it in accordance with its
terms.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
of the Shareholders and Dakota Holdings represents and warrants to the
Company as of the date hereof as follows:
(a) Each of Pohlad Companies and Dakota Holdings has been duly
organized and is validly existing and in good standing under the laws of
its state of organization and has all necessary power and authority to
enter into this Agreement and to carry out its obligations hereunder.
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(b) This Agreement has been duly and validly authorized by each of
Pohlad Companies and Dakota Holdings and all necessary and appropriate
action has been taken by each of Pohlad Companies and Dakota Holdings to
execute and deliver this Agreement and to perform its obligations
hereunder.
(c) This Agreement has been duly executed and delivered by each of
Pohlad Companies, Dakota Holdings and Xxxxxx Xxxxxx and assuming due
authorization and valid execution and delivery by the Company, this
Agreement is a valid and binding obligation of each of Pohlad Companies,
Dakota Holdings and Xxxxxx Xxxxxx, enforceable against each of Pohlad
Companies, Dakota Holdings and Xxxxxx Xxxxxx in accordance with its
terms.
ARTICLE III
SHAREHOLDER AND COMPANY CONDUCT
Section 3.1. ACQUISITION OF VOTING SECURITIES. Subject to the
provisions of this Agreement, during the term of this Agreement, the
Shareholders agree with the Company that, without the prior approval of the
Affiliated Transaction Committee, the Shareholders will not, and will cause
each member of the Shareholder Group not to, take any of the following
actions:
(a) singly or as part of a partnership, limited partnership,
syndicate or other 13D Group, directly or indirectly, acquire, propose
to acquire, or publicly announce or otherwise disclose an intention to
propose to acquire, or offer or agree to acquire, by purchase or
otherwise, Beneficial Ownership of any Voting Security so as to cause
either (x) the Shareholder Group's Total Ownership Percentage to exceed
the Maximum Ownership Percentage or (y) to the best of the Shareholder's
knowledge, the Significant Shareholders' Total Ownership Percentage to
exceed the Combined Maximum Ownership Percentage, other than pursuant to
a Permitted Acquisition;
(b) form, join or in any way participate in a 13D Group with
respect to any Voting Securities of the Company or any securities of its
subsidiaries if such 13D Group's Total Ownership Percentage would exceed
the Maximum Ownership Percentage;
(c) initiate (including by means of publicly proposing or
announcing or otherwise disclosing an intention to propose, solicit,
offer, seek to effect or negotiate) a merger, acquisition or other
business combination transaction relating to the Company (other than a
merger, acquisition or business combination of a third party (not a
member of the Shareholder Group) with the Company) which would not be,
if consummated, a Permitted Acquisition.
The Shareholder Group shall not be prohibited by the terms of this
Agreement from taking any action or exercising any right which is not
inconsistent with the terms of this Agreement, including soliciting or
obtaining the revocable proxy of any other shareholder of the Company with
respect to the election of directors or any other matter, seeking the
election of new directors, calling special meetings of shareholders of the
Company, making shareholder
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proposals, engaging in discussions with the Board or the management of the
Company or otherwise voting its Voting Securities in any manner in which any
member of the Shareholder Group shall determine in its sole discretion. In
addition, this section shall not be deemed to restrict Directors affiliated
with the Shareholders from participating as officers or Board members in the
direction of the Company.
Section 3.2. REQUIRED REDUCTION OF OWNERSHIP PERCENTAGE. (a) If at
any time the Shareholders become aware that the Shareholder Group's Total
Ownership Percentage exceeds the Maximum Ownership Percentage, other than as
permitted pursuant to the terms of this Agreement, then the Shareholders
shall, or shall cause the Shareholder Group to, consistent with the
provisions of this Agreement, promptly (in any event, prior to the earliest
to occur of (i) the record date for the next annual or special meeting of
shareholders of the Company, (ii) the record date for the taking of any
action of shareholders of the Company by written consent or (iii) the
purchase of any additional Voting Securities by any member of the Shareholder
Group) take all action necessary to reduce the amount of Voting Securities
Beneficially Owned by the Shareholder Group such that the Shareholder Group's
Total Ownership Percentage is not greater than the Maximum Ownership
Percentage.
(b) If at any time the Shareholder becomes aware that the
Significant Shareholders' Total Ownership Percentage exceeds the Combined
Maximum Ownership Percentage as a result of a reduction in the number of
Voting Securities outstanding (including, without limitation, as a result of
a purchase of Common Stock by the Company) (such excess, the "BUY-BACK
EXCESS"), then the Shareholder shall, or shall cause the Shareholder Group
to, consistent with the provisions of this Agreement, promptly (in any event,
prior to the earliest to occur of (x) the record date for the next annual or
special meeting of shareholders of the Company, (y) the record date for the
taking of any action of shareholders of the Company by written consent or (z)
the purchase of any additional Voting Securities by any member of the
Shareholder Group) take all action necessary to reduce the amount of Voting
Securities Beneficially Owned by the Shareholder Group by the amount of such
Buy-Back Excess in the following manner and order:
(i) First, for purposes of clauses (ii) and (iii)
below, the Buy Back Excess shall be reduced by the amount, if any,
of Voting Securities received by the PepsiCo Group as an Aggregate
Contingent Payment (as defined in the Merger Agreement), to the
extent such Aggregate Contingent Payment has not been previously
used to reduce the Buy-Back Excess pursuant to this Section.
(ii) Second, by Transferring to a Person other than the
Significant Shareholders the pro rata amount (based on the relative
amounts of Voting Securities purchased by each of the Shareholder
Group and the PepsiCo Group since August 18, 2000) of Voting
Securities, if any, purchased by the Shareholder Group since August
18, 2000;
(iii) Third, by Transferring to a Person other than the
Significant Shareholders the pro rata amount of any remaining
Buy-Back Excess (based on the relative Total Ownership Percentages,
after giving effect to (i) and (ii) above,
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of the Shareholder Group and the PepsiCo Group immediately prior to
the time when the Combined Maximum Ownership Percentage was exceeded).
(iv) Fourth, notwithstanding the foregoing, the maximum
number of Voting Securities that the Shareholder Group shall be
required to Transfer pursuant to (ii) and (iii) above shall not
exceed the amount that would be required to be Transferred if the
PepsiCo Group made its corresponding pro rata Transfers consistent
with (ii) and (iii) above.
(c) If at any time the Shareholders become aware that the
Significant Shareholders' Total Ownership Percentage exceeds the Combined
Maximum Ownership Percentage, other than as a result of a reduction in the
total number of Voting Securities (which situation shall be governed by
paragraph (b) above) or as permitted pursuant to the terms of this Agreement,
then the Shareholders shall, or shall cause the Shareholder Group to,
consistent with the provisions of this Agreement, promptly (in any event,
prior to the earliest to occur of (i) the record date for the next annual or
special meeting of shareholders of the Company, (ii) the record date for the
taking of any action of shareholders of the Company by written consent or
(iii) the purchase of any additional Voting Securities by any member of the
Shareholder Group) take all action necessary to reduce the amount of Voting
Securities Beneficially Owned by the Shareholder Group such that the
Significant Shareholders' Total Ownership Percentage is not greater than the
Combined Maximum Ownership Percentage; PROVIDED that if the Shareholder
becomes aware that the Significant Shareholders' Total Ownership Percentage
exceeds the Combined Maximum Ownership Percentage due to an acquisition by a
member of the PepsiCo Group of Voting Securities or the addition to the
PepsiCo Group of a new Affiliate that Beneficially Owns Voting Securities,
the Shareholder shall promptly inform the Company of such fact but shall not
be required to reduce the amount of Voting Securities Beneficially Owned by
the Shareholder Group due to such event so long as the Shareholder Group is
in compliance with the other provisions of this Agreement.
(d) During the term of this Agreement, if the Company purchases
shares of Common Stock from the public, whether by tender offer, open market
purchase or otherwise (a "REPURCHASE"), the Company shall contemporaneously
with the Repurchase offer to purchase from the Shareholder Group, on the same
terms and conditions, including price, as in the Repurchase, a percentage of
those shares of Common Stock Beneficially Owned by the Shareholder Group
equal to the percentage of shares of Common Stock to be Repurchased from the
Beneficial Owners of shares of Common Stock other than the Shareholder Group
(the "BUY-BACK OFFER"). The Company shall provide notice to the Shareholders
of its intention to engage in a Repurchase and of the mechanism by which the
Repurchase shall occur not less than thirty (30) days in advance of the date
on which the Repurchase is to be consummated, and the Shareholders shall
provide notice to the Company within ten (10) days of receipt of such notice
of whether the Shareholder Group intends to accept the Buy-Back Offer.
Section 3.3. TOP-UP RIGHTS. During the term of this Agreement, if
the Shareholder Group's Total Ownership Percentage is below the Maximum
Ownership Percentage and the Significant Shareholders' Total Ownership
Percentage is below the Combined Maximum Ownership Percentage, the
Shareholder Group may at its option purchase Voting Securities from time to
time in the open market or otherwise in an amount not in excess of the amount
that would
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cause either (x) the Shareholder Group's Total Ownership Percentage to exceed
the Maximum Ownership Percentage or (y) the Significant Shareholders' Total
Ownership Percentage to exceed the Combined Maximum Ownership Percentage.
Section 3.4. CHARTER AND BY-LAWS. During the term of this Agreement
the Company shall not, and the Shareholder Group shall not, and shall not
facilitate any effort to, amend, alter or repeal, or propose the amendment,
alteration or repeal of, any provision of the Charter or the By-Laws in any
manner which is inconsistent with the terms of this Agreement. If at any time
during the term of this Agreement the provisions of this Agreement shall
conflict with the provisions of the Charter or the By-Laws, the parties shall
use all reasonable efforts, consistent with their fiduciary responsibilities,
to cause the provisions of the Charter and the By-Laws to be brought into
conformity with the provisions of this Agreement.
Section 3.5. RIGHTS AGREEMENT. During the term of this Agreement,
the Company hereby agrees not to (i) amend any provision of the Rights
Agreement in any manner which is inconsistent with the terms of this
Agreement or the Merger Agreement and which adversely affects the rights of
the Shareholder Group under the terms of this Agreement or (ii) adopt any new
rights agreement which is inconsistent with the terms of this Agreement or
the Merger Agreement and which adversely affects the rights of the
Shareholder Group under the terms of this Agreement.
Section 3.6. NO AGREEMENTS. During the term of this Agreement,
except as specifically contemplated in Section 3.7, no member of the
Shareholder Group shall, directly or indirectly, enter into any agreement or
other understanding with any member of the PepsiCo Group with respect to the
holding, voting, acquisition or disposition of Voting Securities.
Section 3.7. DAKOTA HOLDINGS. Notwithstanding the provisions of
Section 3.6, members of the Shareholder Group (whether existing or newly
formed) and members of the PepsiCo Group may be parties to the Amended and
Restated Limited Liability Company Agreement of Dakota Holdings, attached as
Annex A to this Agreement (the "DAKOTA HOLDINGS AGREEMENT"), and to hold
interests in Dakota Holdings pursuant to the Dakota Holdings Agreement,
PROVIDED that (i) the Dakota Holdings Agreement expressly provides that (x)
the members of the Shareholder Group who are parties to the Dakota Holdings
Agreement have sole power with respect to the voting of that percentage of
the Voting Securities owned by Dakota Holdings equal to the Class A
Percentage Interest (as defined in the Dakota Holdings Agreement) (the "CLASS
A PERCENTAGE") of the Shareholder Group members and with respect to the
voting of such Voting Securities members of the PepsiCo Group shall have no
power, influence or discretion, and (y) the members of the PepsiCo Group who
are parties to the Dakota Holdings Agreement ultimately have sole power with
respect to the voting of their Class A Percentage of the Voting Securities
owned by Dakota Holdings and with respect to the voting of such Voting
Securities members of the Shareholder Group shall have no power, influence or
discretion which is not subject to the ultimate power of the PepsiCo Group to
direct the voting; and (ii) Dakota Holdings shall not take any action to
acquire, directly or indirectly, Beneficial Ownership of any additional
Voting Securities (excluding any Voting Securities acquired pursuant to
transactions contemplated by the Merger Agreement (including any Contingent
Payment Acquisitions) and excluding Voting Securities acquired through stock
dividends on then-owned Voting Securities and excluding the acquisition of
Voting Securities pursuant to the
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right of Pohlad Companies to acquire Common Stock with a value of $25 million
from the PepsiCo Group, in connection with the Merger). So long as the
proviso in the preceding sentence is complied with, for purposes of
calculating the Shareholder Group's Total Ownership Percentage, those Voting
Securities over which a member of the PepsiCo Group has the sole powers
described in clause (y) of clause (i) in the proviso in the preceding
sentence shall not be considered Beneficially Owned by the Shareholder Group
and a transfer of interests in Dakota Holdings from a member of the
Shareholder Group to a member of the PepsiCo Group shall be permitted with
the consent of the Affiliated Transaction Committee (or, if such Committee
shall not be in existence, by a committee of the Board composed entirely of
Independent Directors), which consent shall not be unreasonably withheld.
Section 3.8. SPECIAL MEETINGS REQUESTED BY THE SHAREHOLDER;
NOMINATIONS. In the event that during the term of this Agreement the
Shareholder Group requests a special meeting of the stockholders of the
Company in accordance with the By-Laws, or the Shareholder Group nominates an
alternative slate of directors to the slate proposed by the Board at any
annual meeting of stockholders of the Company in accordance with the By-Laws,
the Company hereby agrees that the Company shall not, without the
Shareholders' consent, from the date of receipt of such request for a special
meeting or the date of receipt of such nomination, as the case may be, until
the adjournment of the requested special meeting or the annual meeting, as
the case may be, (i) take any action effecting a material change in its
capital structure, (ii) declare or pay a dividend (other than any regular
quarterly dividend), (iii) materially increase the compensation of any
executive officer or (iv) take any material action not in the ordinary course
of business; PROVIDED that this provision shall not restrict the ability of
the Company to comply with commitments entered into prior to the date of such
request.
Section 3.9. OPTIONS. The Company shall not grant to any member of
the Shareholder Group any options to purchase Common Stock unless such grant
is approved by the Affiliated Transaction Committee (or, if such Committee
shall not be in existence, by a committee of the Board composed entirely of
Independent Directors).
ARTICLE IV
BOARD COMPOSITION; CHIEF EXECUTIVE
Section 4.1. BOARD COMPOSITION; CHIEF EXECUTIVE. (a) As of the
Effective Time (as defined in the Merger Agreement) of the Merger, the Board
shall consist of the current directors of the Company and Xxxxxx Xxxxxx.
(b) Immediately following the Effective Time, Xxxxxx Xxxxxx shall
be elected Chief Executive Officer of the Company by the Board.
ARTICLE V
EFFECTIVENESS AND TERMINATION
Section 5.1. EFFECTIVENESS. This Agreement shall take effect
immediately upon the Closing and shall remain in effect until it is
terminated pursuant to Section 5.2 hereof.
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Section 5.2. TERMINATION. This Agreement shall terminate upon
written agreement of the Company (which shall require the approval of the
Affiliated Transaction Committee (or, if such Committee shall not be in
existence, by a committee of the Board composed entirely of Independent
Directors)) and the Shareholders at any time to terminate this Agreement,
which termination shall occur at a time to be fixed in such mutual agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1. INJUNCTIVE RELIEF. Each party hereto acknowledges that
it would be impossible to determine the amount of damages that would result
from any breach of any of the provisions of this Agreement and that the
remedy at law for any breach, or threatened breach, of any of such provisions
would likely be inadequate and, accordingly, agrees that each other party
shall, in addition to any other rights or remedies which it may have, be
entitled to seek such equitable and injunctive relief as may be available
from any court of competent jurisdiction to compel specific performance of,
or restrain any party from violating, any of such provisions. In connection
with any action or proceeding for injunctive relief, each party hereto hereby
waives the claim or defense that a remedy at law alone is adequate and
agrees, to the maximum extent permitted by law, to have each provision of
this Agreement specifically enforced against him or it, without the necessity
of posting bond or other security against him or it, and consents to the
entry of injunctive relief against him or it enjoining or restraining any
breach or threatened breach of such provisions of this Agreement.
Section 6.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the Company
and by the Shareholders and their respective successors and permitted
assigns, and no such term or provision is for the benefit of, or intended to
create any obligations to, any other Person.
Section 6.3. AMENDMENTS; WAIVER. (a) This Agreement may be amended
only by an agreement in writing executed by the parties hereto. Any approval
of an amendment of this Agreement upon the part of the Company shall require
the approval of the Affiliated Transaction Committee (or, if such Committee
shall not be in existence, by a committee of the Board composed entirely of
Independent Directors) at a duly convened meeting thereof.
(b) Either party may waive in whole or in part any benefit or right
provided to it under this Agreement, such waiver being effective only if
contained in a writing executed by the waiving party. No failure by any party
to insist upon the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy consequent
upon breach thereof shall constitute a waiver of any such breach or of any
other covenant, duty, agreement or condition, nor shall any delay or omission
of either party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter. Any waiver of any
benefit or right provided to the Company under this Agreement shall require
the approval of a majority of the Board and approval of the Affiliated
Transaction Committee (or, if such Committee shall not be in existence, by a
committee of the Board composed entirely of Independent Directors) at a duly
convened meeting thereof.
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Section 6.4. NOTICES. Except as otherwise provided in this
Agreement, all notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered personally or by courier,
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested), or when received by facsimile
transmission if promptly confirmed by one of the foregoing means, as follows:
If to the Shareholders:
Pohlad Companies
Suite 3800
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx, P.A.
0000 XXX Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
If to the Company:
Xxxxxxx Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
or to such other address or facsimile number as either party may, from time
to time, designate in a written notice given in a like manner.
Section 6.5. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
without giving effect to principles of conflicts of law.
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Section 6.6. HEADINGS. The descriptive headings of the several
sections in this Agreement are for convenience only and do not constitute a
part of this Agreement and shall not be deemed to limit or affect in any way
the meaning or interpretation of this Agreement.
Section 6.7. INTEGRATION. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to its subject matter other than those expressly
set forth or referred to herein.
Section 6.8. SEVERABILITY. If any term or provision of this
Agreement or any application thereof shall be declared or held invalid,
illegal or unenforceable, in whole or in part, whether generally or in any
particular jurisdiction, such provision shall be deemed amended to the
extent, but only to the extent, necessary to cure such invalidity, illegality
or unenforceability, and the validity, legality and enforceability of the
remaining provisions, both generally and in every other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 6.9. CONSENT TO JURISDICTION. In connection with any suit,
claim, action or proceeding arising out of this Agreement, the Shareholder
and the Company each hereby consent to the in personam jurisdiction of the
United States federal courts and state courts located in the State of
Delaware; the Shareholders and the Company each agree that service in the
manner set forth in Section 6.4 hereof shall be valid and sufficient for all
purposes; and the Shareholders and the Company each agree to, and irrevocably
waive any objection based on forum non conveniens or venue not to, appear in
any United States federal court or state court located in the State of
Delaware.
Section 6.10. COUNTERPARTS. This Agreement may be executed by the
parties hereto in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Shareholders have caused
this Agreement to be duly executed by their respective authorized officers as
of the date set forth at the head of this Agreement.
XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Sr. X.X.
XXXXXX COMPANIES
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
DAKOTA HOLDINGS, LLC
By: Pohlad Companies, Member
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Financial Officer
XXXXXX XXXXXX (on behalf of all members
of the Shareholder Group other than
Pohlad Companies and Dakota Holdings)
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
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