EXHIBIT 10.6
PPC HOLDINGS, INC.
AMENDED AND RESTATED
CO-SALE AGREEMENT
This Amended and Restated Co-Sale Agreement (the "Agreement") is made
as of December 30, 1996, by and among PPC Holdings, Inc., a Delaware
corporation, (the "Company"), Xxxxxx X. Xxxxxxx, as trustee of the Xxxxxx X.
Xxxxxxx Trust, dated March 11, 1988, as amended (the "REM Trust"), Xxxx X.
Xxxxxxx as trustee of the Xxxx Xxxxxxx Xxxxxxx Trust, dated September 24,
1982, as amended (the "PBM Trust" and the REM Trust, individually, a "Trust"
and, collectively, the "Trusts"), and each of the undersigned stockholders
(each, a "Management Stockholder," and collectively, together with the REM
Trust and the PBM Trust, the "Stockholders").
RECITALS
A. The Stockholders' current ownership of the Company's outstanding
common stock (the "Stock") is set forth on SCHEDULE A attached hereto (which
schedule will be amended from time to time to reflect additional issuances of,
and changes in ownership of, the Stock). The Stockholders wish to enter into
this Agreement for their mutual benefit.
B. The purpose of this Agreement is to establish a mechanism for the
transfer of Stock now or hereafter held by the Management Stockholders in
connection with certain transfers of Stock by the REM Trust, the PBM Trust
and/or their affiliates.
AGREEMENT
Now, therefore, in view of the foregoing recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TAKE-ALONG RIGHT
(a) If at any time prior to the termination of this Agreement, the REM
Trust, the PBM Trust and/or any Affiliate (for purposes of this Agreement,
the term "Affiliate" shall have meaning defined in Rule 405 of the Securities
Act of 1933, as amended (the "Securities Act")) of the REM Trust or the PBM
Trust (collectively, together with the REM Trust and the Xxxx X. Trust, the
"Xxxxxxx Affiliates") propose to sell or exchange (in a business combination
or otherwise) all of their shares of Stock in a bona fide arms-length
transaction to any third party (a "100% Buyer"), other than a Xxxxxxx
Affiliate, the Xxxxxxx Affiliates shall have the right (the "Take-Along
Right") to require all of the Management Stockholders to sell or exchange all
of the Stock then beneficially owned by them to such 100% Buyer on the same
terms and subject to the same conditions as the sale or exchange by the
Xxxxxxx Affiliates. To exercise the Take-Along Right, the Xxxxxxx Affiliates
shall give written notice thereof (a "Take-Along Notice") to the Management
Stockholders. The Take-Along Notice shall state (i) the name and address of
the 100% Buyer, (ii) the price per share and the form of consideration which
the 100% Buyer proposes to pay for the purchased stock and (iii) the method
of payment and other terms and conditions of the proposed transfer.
The exercise of the Take-Along Right and the purchase and sale of the
Stock resulting from the exercise of the Take-Along Right shall take place at
the principal offices of the Company on the twentieth (20th) business day
following the date of delivery of the Take-Along Notice, or at such other
place, on such other date, or both, as the Xxxxxxx Affiliates and the 100%
Buyer shall agree upon in writing (the "Closing Date"). On the Closing Date,
each Management Stockholder shall deliver the certificate(s) representing all
of the Stock owned by him to the 100% Buyer in proper form for transfer with
appropriate stock powers executed in blank attached and with all documentary
or transfer tax stamps affixed, against payment of the purchase price
therefor by a wire transfer of funds to the respective bank accounts
designated by the Xxxxxxx Affiliates and each Management Stockholder or by
certified or official bank check or checks. By delivering such
certificate(s), each of the Xxxxxxx Affiliates and the Management
Stockholders shall be deemed to represent that the 100% Buyer will receive
good title to the securities transferred by them represented by such
certificates and instruments, free and clear of all liens, security
interests, pledges, charges, encumbrances, stockholders' agreements and
voting trusts.
2. TAG-ALONG RIGHT
If, at any time prior to the termination of this Agreement, the Xxxxxxx
Affiliates propose to sell in one transaction or in any of a series of
transactions to a single purchaser (including such purchaser's Affiliates, a
"Control Buyer"), other than a Xxxxxxx Affiliate or other than pursuant to a
registration statement under the Securities Act or pursuant to Rule 144
thereunder, shares of Stock which, together with all other shares of Stock
sold or to be sold to such Control Buyer in such transaction or series of
transactions, equals or exceeds fifty percent (50%) of the outstanding Stock
of the Company on a fully diluted basis, the Xxxxxxx Affiliates shall so
notify the Management Stockholders, describing in such notification the
material terms of such proposed sale. Each Management Stockholder shall have
the option, exercisable by written notice to the Xxxxxxx Affiliates within
ten (10) business days after the Xxxxxxx Affiliates notify the Management
Stockholders of their intention to effect such a sale, to require the Xxxxxxx
Affiliates to provide as part of their proposed sale that each electing
Management Stockholder (each, a "Tag-Along Seller") be given the right to
participate, PRO RATA in proportion to the respective numbers of shares of
Stock owned by the Xxxxxxx Affiliates, the Tag-Along Sellers and any other
stockholders of the Company who exercise a right or have an obligation to
participate with the Xxxxxxx Affiliates in such a sale, in such transaction
or series of transactions on the same terms and conditions (including but not
limited to obligations with respect to indemnification) as the Xxxxxxx
Affiliates, and, if such option is exercised by any Tag-Along Seller, the
Xxxxxxx Affiliates shall not proceed with such sale unless the Tag-Along
Sellers are given the right so to participate.
3. TERMINATION OF AGREEMENT
This Agreement shall terminate upon the first to occur of:
(a) STOCKHOLDER VOTE. The written agreement of all of the Stockholders;
(b) BANKRUPTCY. The bankruptcy or insolvency of the Company;
2.
(c) STOCKHOLDER. At such time as only the Xxxxxxx Affiliates remain as
Stockholders, the Stock of the Management Stockholders and any other
stockholders having been purchased by the Company or the Xxxxxxx Affiliates;
and
(d) QUALIFIED PUBLIC OFFERING. Upon the completion by the Company of a
"Qualified Public Offering" which shall mean a firm commitment underwritten
public offering of shares of common stock (i) which is registered under the
Securities Act on Form S-1 (or successor form for the registration of the
sale of securities without qualification as to the size of the issuer or
offering, type of purchaser, or any limitation on the availability of audited
financial statements of the issuer) and (ii) resulting in proceeds to the
Company, net of expenses, discounts and commissions, of not less that $30
million.
4. LEGEND
(a) Each certificate representing shares of Stock now or hereafter
owned by a Stockholder or issued to any person in connection with a transfer
pursuant hereunder shall be endorsed with the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN CO-SALE AGREEMENT BY AND BETWEEN THE
REGISTERED HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST
TO THE SHARES), THE CORPORATION AND CERTAIN HOLDERS OF STOCK OF
THE CORPORATION. A COPY OF SUCH AGREEMENT IS MAINTAINED AT THE
CORPORATION'S PRINCIPAL CORPORATE OFFICES."
(b) Each Stockholder agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in Section 4(a) above to enforce
the provisions of this Agreement and the Company agrees to promptly do so.
The legend shall be removed upon termination of this Agreement.
5. OWNERSHIP
Each Stockholder represents and warrants that he is the sole legal and
beneficial owner of the shares of Stock subject to this Agreement and that no
other person has any interest (other than any security interest granted in
connection with a purchase money financing of the acquisition of such shares
that has been provided or approved by the Company, or a community property or
marital property interest) in such shares.
6. SPECIFIC PERFORMANCE
The parties hereby declare that it is impossible to measure in money
the damages that will accrue to a Stockholder or his estate by reason of a
failure to perform any of the
3.
obligations under or other breach of, this Agreement. Therefore, any
Stockholder or his personal representative shall be entitled to specific
enforcement of the provisions of this Agreement, and any person (including
each Stockholder and the Company) against whom an action for specific
performance is brought hereby waives the claim or defense therein that there
exists an adequate remedy at law to redress the nonperformance or other
breach of this Agreement.
7. EXECUTION OF DOCUMENTS MAY BE CONDITION TO TRANSFER
Any transferee or assignee (other than the Company), by gift, sale, or
otherwise, must, as a condition to such transfer or gift, execute such
documents as may be reasonably requested by the Company in order to confirm
the agreement of such donee, assignee, purchaser, or successor in interest to
be bound by all the terms, provisions and conditions of this Agreement as
though an original signatory hereto, and to assume any and all obligations of
the transferor or assignor hereof. Any shares of Stock transferred or
assigned to the Company shall, upon such transfer or assignment, cease to be
subject to the terms, provisions and conditions of this Agreement.
8. ENTIRE AGREEMENT
This instrument evidences the entire agreement of the parties
concerning the matters covered herein, and supersedes all prior oral or
written agreements or other understandings including, without limitation,
that certain Co-Sale Agreement dated as of April 28, 1995, by and among the
Company, the Trusts and Xxxxx X. Xxxxxxxxx.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
10. AMENDMENT
This Agreement may be amended only by written agreement signed by
all of the Stockholders; provided that, with the written consent of the
Company, additional stockholders may become parties hereto as Management
Stockholders by executing a counterpart hereof; provided further that
SCHEDULE A attached hereto may be amended from time to time by the Company to
reflect additional issuances of Stock, changes in the ownership of the Stock
and the addition of new Management Stockholders. The Company shall provide
notice to each of the Stockholders with regard to any such additional parties
and any such amendments to SCHEDULE A.
11. NOTICES
Any and all notices, designations, consents, offers, acceptances,
and any other communications provided for herein shall be given in writing
which shall be addressed and delivered or sent either by first class mail or
hand delivery, in the case of the Company, to its
4.
principal office, and in the case of any Stockholder, to his address
appearing in the current records of the Company or to such other address as
may be designated by him.
12. AGREEMENT TO PERFORM NECESSARY ACTS
Each party agrees to perform any further acts and to execute and
deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement.
13. INVALID PROVISION
The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions, and this Agreement
shall be construed in all respects as if the invalid or unenforceable
provision were omitted.
14. HEIRS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of
the parties, their heirs, legal representatives, personal representatives,
beneficiaries, successors, and assigns. Notwithstanding the preceding
sentence, the rights of the Stockholders hereunder are only assignable in
accordance with Section 7 hereof. Each Stockholder hereby directs his
personal representative to perform this Agreement and to execute all
documents necessary to effect the purposes of this Agreement. The failure of
any Stockholder to execute a will shall not affect the rights or obligations
of any Stockholder, the estate of any Stockholder, or the Company under this
Agreement. Except as expressly contemplated hereby, no third party
(including without limitation any stockholder of the Company who, for any
reason, is not a party hereto) shall be entitled to enforce any term,
covenant or condition of this Agreement or have any rights hereunder.
15. ATTORNEYS' FEES
In the event any action is instituted by any party against another
for the purpose of determining or enforcing his or its rights under this
Agreement, the prevailing party shall be entitled to recover from the other
party all costs in connection with the action, including reasonable
attorneys' fees, as determined by the Court.
16. COUNTERPARTS
This Agreement may be executed 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.
5.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement
on the date specified above.
PPC HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX, as Trustee of the
Xxxxxx X. Xxxxxxx Trust dated March 11,
1988, as amended
/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX, as Trustee of the Xxxx
Xxxxxxx Xxxxxxx Trust dated September 24,
1982, as amended
MANAGEMENT STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
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XXXXXXXX X. XXXXX
/s/ Xxxxxxxx Xxxx
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XXXXXXXX XXXX
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
/s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
6.
Amended and Restated Co-Sale Agreement by and among the stockholders of
the Company named therein dated as of December 30, 1996.
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SCHEDULE A OMITTED IN ACCORDANCE
WITH ITEM 601(b)(2) OF REGULATION S-K
Schedule A Issued and Outstanding Common Stock of the Stockholders
Xxxxx-Xxxx'x Incorporated will furnish supplementally a copy of any
omitted schedule or exhibit to the Securities and Exchange Commission upon
request; provided, however, that Xxxxx-Xxxx'x Incorporated may request
confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any
schedule or exhibit so furnished.
