EXHIBIT 4.5
AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
This Amended and Restated Shareholders' Agreement (this "Agreement") dated
as of the 23rd day of September, 1993, by and among Delta Beverage Group, Inc.
(the "Company" or the "Corporation") and the parties set forth on Schedule I
attached hereto (the "Shareholders").
WITNESSETH:
WHEREAS, the Company intends to (i) issue shares of its newly designated
Preferred Stock (Series AA) (the "Series AA Stock") pursuant to a stock exchange
agreement between the Company and various holders of the Company's subordinated
debt, (ii) exchange the outstanding shares of Convertible Preferred Stock
(Series A) and Convertible Preferred Stock (Series C) for Non-voting Common
Stock and (iii) exchange the outstanding Convertible Preferred Stock (Series B)
for Common Stock, all as more fully set forth in the Company's Plan of
Recapitalization dated as of September 23, 1993; and
WHEREAS, certain of the Shareholders and the Company are parties to the
Shareholders' Agreement dated as of March 8, 1988, as amended by the First
Amendment to Shareholders' Agreement dated as of July 19, 1990 (the
"Shareholders' Agreement"); and
WHEREAS, the parties to the Shareholders' Agreement desire to amend the
Shareholders' Agreement to include the Non-voting Common Stock and Series AA
stock and the holders thereof desire to become parties to the Agreement; and
WHEREAS, each of the parties hereto desires to grant certain rights and
options with respect to the Common Stock, Non-voting Common Stock and Series AA
Stock, to provide reasonable restrictions upon the transfer of the Common Stock
and Non-voting Common Stock, and to agree to vote its shares in accordance with
the provisions of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings set forth in this Section 1:
1.1. "AFFILIATE" shall mean, with respect to any specified person, (i) a
person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the specified person, (ii)
any corporation or organization of which a specified person is, directly or
indirectly, the beneficial owner of 50% or more of any class of securities
having general voting powers, (iii) any trust or foundation in which a
Page 1 Exhibit 4.5
specified person has a substantial beneficial interest or as to which a
specified person serves as a trustee or in any similar fiduciary capacity and
retains voting powers of securities held in the trust or foundation, and (iv)
as to any specified natural person, that person's spouse, parents, children,
siblings, mothers- and fathers-in-law, sons- and daughters-in-law, and
brothers- and sisters-in-law. MEI Diversified Inc. and any successor shall
not be considered an Affiliate of any person for purposes of this Agreement.
1.2. "COMMISSION" shall mean the Securities and Exchange Commission, or any
other Federal agency then administering the Securities Act.
1.3. "COMMON STOCK" shall mean and include the Corporation's presently
authorized Voting Common Stock, $.01 par value per share, and any capital stock
of any class of the Corporation hereafter authorized which shall not be limited
to a fixed sum or percentage in respect of the rights of the holders thereof to
participate in dividends or in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, but shall
not include the Corporation's Non-voting Common Stock.
1.4. "COMMON STOCKHOLDER" shall mean a holder of the Corporation's Common
Stock.
1.5. "CONVERSION STOCK" shall mean the Common Stock of the Corporation into
which the Non-voting Common Stock is convertible or has been converted and all
shares of Common Stock of the Corporation issued in exchange or substitution
therefor.
1.6. "NON-VOTING COMMON STOCK" shall mean the Corporation's presently
authorized Non-voting Common Stock, $.01 par value per share.
1.7. "OUTSTANDING" when used with reference to Common Stock shall mean, at
any date as of which the number of shares thereof is to be determined, all
issued shares of Common Stock, except shares then owed or held by or for the
account of the Corporation, and shall include any certificates representing
fractional interests in shares of Common Stock.
1.8. "PERSON" or "PERSON" shall mean an individual, a corporation,
partnership, a sole proprietorship, a trust, an unincorporated organization, an
association or a government or any instrumentality, department, agency or
political subdivision thereof.
1.9. "PUBLIC COMPANY" shall mean any corporation or other entity having a
class of securities subject to the reporting requirements of Section 13 of the
Securities Exchange Act of 1934, as amended.
1.10. "PUBLIC MARKET" shall mean, with respect to the Common Stock,
that shares of such stock are (i) listed or admitted to unlisted trading
privileges on the New York Stock Exchange, Inc., (ii) listed or admitted to
unlisted trading privileges on another securities exchange, or (iii) traded in
the over-the-counter market as reported by NASDAQ or a similar organization if
NASDAQ is no longer reporting such information.
Page 2 Exhibit 4.5
1.11. "SECURITIES ACT" shall mean the Securities Act of 1933, or any
similar or successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
1.12. "STOCK" shall mean collectively the Common Stock, Non-voting
Common Stock and the Series AA Stock.
2. RESTRICTIONS ON TRANSFER.
2.1. RESTRICTION. The Company and each holder of Common Stock and each
holder of Non-voting Common Stock (at such time as it may hold Common Stock)
agrees that neither (i) any Common Stock, (ii) the ultimate beneficial ownership
("Ultimate Economic Interests") of any Common Stock (provided such ultimate
beneficial ownership shall not include stock ownership in any Public Company
which is a Public Company at the date of this Agreement), nor (iii) any of the
franchise rights relating to the Pepsi-Cola soft drink business of the Company
(including the capital stock of any of its subsidiaries holding such franchise
rights ("Franchise Rights") may be sold or otherwise transferred, directly or
indirectly, by the owners thereof (the "Owners") except pursuant to the terms
hereof. No Owner shall make any sale of less than its entire interest in the
Common Stock or the Franchise Rights. The Common Stock, the Ultimate Economic
Interests, and such Franchise Rights are referred to herein as "Property."
2.2. GRANT OF RIGHT TO PURCHASE. In the event that an Owner desires to
sell any Property, the Owner shall, except in those cases specified below, grant
Equity Beverage, Inc. ("PepsiCo Sub") the right to purchase the Common Stock or
Franchise Rights of such Owner (if such Property is Common Stock or Franchise
Rights) or the Common Stock beneficially owned by such Owner (if such Property
is Ultimate Economic Interests) at the purchase price ("Purchase Price")
specified herein. The provisions of this Section 2.2 shall not apply to the
Series AA Stock or the Non-voting Common Stock, but shall apply to the Common
Stock into which the Non-voting Common Stock is converted.
2.3. PURCHASE PRICE. The Purchase Price for purposes of this Section 2
shall be the higher of (i) the price negotiated between PepsiCo Sub and such
Owner, or (ii) the valuation amount ("Valuation Amount") as hereinafter provided
in Section 2.5. The Purchase Price of the Common Stock shall be determined on a
per share of Common Stock (fully diluted) basis, which determination shall, in
the case of a valuation, be based on the fair market value of the Company as a
whole and not on the value of the interest sold.
2.4. NOTICE OF INTENT TO TRANSFER. Such Owner shall give PepsiCo Sub
notice ("Notice") of such Owner's desire to sell such Property (except in cases
provided below where such Property may be sold without restriction). PepsiCo
Sub shall have 15 days after receipt of said Notice to exercise its purchase
right herein granted. In the event PepsiCo Sub exercises its right, the Owner
and PepsiCo Sub shall use their best efforts to establish the Purchase Price
through Negotiations.
Page 3 Exhibit 4.5
2.5. VALUATION FOR PURPOSES OF SECTION 2. In the event that the Owner and
PepsiCo Sub are unable to agree on a negotiated Purchase Price within 30 days
after receipt of the Notice, PepsiCo Sub may elect not to proceed with the
purchase of the Property. If it does proceed, the Purchase Price shall be the
amount determined pursuant to the procedures specified in this Section 2.5. The
Valuation Amount shall be determined by two nationally recognized independent
investment or merchant banks, one of which shall be selected by PepsiCo Sub and
the other selected by the Owner. Each such investment or merchant bank shall,
within 30 days of being requested to do so, determine the fair market value of
the Company or Franchise Rights, as the case may be, and the Valuation Amount
shall be the average of the two determinations. If, within five days of such
determination, either the Owner or PepsiCo Sub disagrees with such Valuation
Amount, the Owner and PepsiCo Sub forthwith shall cause such two investment or
merchant banks to select a third nationally recognized independent investment or
merchant bank which, within 30 days of being requested to do so, shall make its
own determination of fair market value of the Company or Franchise Rights, as
the case may be. The Valuation Amount shall then be the average of the fair
market value determination of the third investment or merchant bank and that one
of the two fair market determinations of the other investment or merchant banks
which is the nearer in amount to the fair market value determination of the
third investment or merchant bank. PepsiCo Sub shall pay the fees and expenses
of the investment or merchant banks rendering opinions as to the Valuation
Amount. PepsiCo Sub shall be entitled to specific performance of the provisions
of this Agreement. Within ten days after determination of the Valuation Amount,
PepsiCo Sub may, by written notice to Owner, elect not to proceed with the
purchase of the Property. Within ten days after determination of the Valuation
Amount, the Owner may, by written notice to PepsiCo Sub, rescind its offer to
sell the Property to PepsiCo Sub, whereupon Owner shall have no obligation to
sell, and PepsiCo Sub shall have no obligation to purchase the Property;
PROVIDED, HOWEVER, that if the Owner thus rescinds its offer to sell the
Property, the Owner shall pay the fees and expenses of the investment or
merchant banks rendering the opinions as to the Valuation Amount. The preceding
sentence shall in no way affect Owner's obligation to offer the Common Stock to
PepsiCo Sub pursuant to Section 2.2 in the event Owner desires to sell any
Property after the date of Owner's rescission of its offer to sell.
2.6. PERMITTED TRANSFERS. The provisions of Section 2.1 through 2.5 of
this Agreement shall not apply to any of the following transfers ("Unrestricted
Transfer"):
(a) Any sale or transfer by an Owner of Property to any Affiliate of
Pohlad Companies, a Minnesota corporation controlled by Xxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxx.
(b) Any transfer by an Owner of Property to any Affiliate of such Owner.
(c) Any transfer by Xxxxxx Industries, Inc., an original purchaser of
Common Stock, of any or all of its shares of Common Stock to any of the
following: Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxxx.
Any Unrestricted Transfer may be without compliance with the
restrictions set forth in this Agreement; PROVIDED, HOWEVER, that any Stock sold
or transferred in an
Page 4 Exhibit 4.5
Unrestricted Transfer shall be made subject to the restrictions set forth in
this Agreement and any transferee, as a condition of the transfer, shall
agree to be subject to the terms of this Agreement.
2.7. BOTTLING APPOINTMENT RESTRICTIONS. The restrictions on transfer
contained in Section 2.1 of this Agreement are in addition to any similar
restrictions on transfer contained in the bottling appointments relating to the
Pepsi-Cola soft drink business of the Company. The parties hereto understand
that any public offering of any of the outstanding shares of Stock (by the
Company or any holder) shall constitute a violation of the Company's bottling
appointments issued by PepsiCo, Inc. unless consented to by PepsiCo, Inc.
3. VOTING AGREEMENT.
3.1. AGREEMENT TO VOTE FOR CERTAIN NOMINEES AS DIRECTORS. For a period
of ten years from the date of this Agreement, each party hereto agrees as
follows:
(a) To vote all shares of Common Stock owned by it (i) for the election
of one director named by PepsiCo, Inc., (ii) for the election of one director
named by Arbeit & Co., and (iii) for the election of two directors named by
the written direction of the holders of at least 60% of the outstanding
shares of the Non-voting Common Stock (excluding for purposes of such
direction and for purposes of determining the outstanding shares any holder
of Non-voting Common Stock to the extent such holder determines that it is
not, by reason of the Bank Holding Company Act and regulations thereunder,
permitted to make such direction).
(b) In the event any person ceases to be a director for any reason
before his or her term expires (a "withdrawing director"), to vote in favor
of another person as a director named by the person or group described in
clause (a) above which originally named the withdrawing director to be a
director.
(c) To use its best efforts to elect or cause to be elected all persons
named in accordance with the foregoing procedure; PROVIDED, HOWEVER, that the
right of each person, group, or entity listed in clause (a) above to name a
director shall cease if such person, group or entity does not own any Stock
on the record date of the shareholders' meeting at which directors are to be
elected or, if such election is to be otherwise than at a shareholders'
meeting, at the time of such naming.
3.2. PROCEDURE REGARDING NOMINEES. The Agreement set forth in Section
3.1 above of each of the parties to vote its shares of Common Stock in favor
of the nominees named pursuant to the provisions of Section 3.1(a) or 3.1(b)
shall be subject to the limitations and procedures set forth in this Section
3.2.
(a) PepsiCo, Inc. and Arbeit & Co. may each select one nominee, and the
holders of at least 60% of the shares of the outstanding Non-voting Common
Stock may collectively select two nominees, for submission to a committee of
the Board of Directors of the Company which shall consist of all directors
not nominated by PepsiCo, Inc., Arbeit & Co., and the holders of the
Non-voting Common Stock (the "Committee").
Page 5 Exhibit 4.5
(b) The Committee shall then determine whether the nominees thus submitted
are reasonably satisfactory to the Committee to serve as members of the Board of
Directors of the Company. The Committee shall notify the nominating corporation
or group in the event that the Committee determines that any nominee submitted
by such corporation or group is not reasonably satisfactory to the Committee.
In such event, the corporation or group making the rejected nomination may
submit another nominee for consideration by the Committee. If the Committee
determines that the second nominee is also not reasonably satisfactory to the
Committee, the Committee shall notify the corporation or group making such
nomination. Thereafter, the corporation or group whose nominees have been
determined not to be satisfactory to the Committee may submit a third nominee
for consideration by the Committee and the Committee shall select one of the
three nominees of such corporation or group.
(c) After the Committee has determined that the nominees are reasonably
satisfactory to the Committee, the Committee shall include such nominees,
together with other nominees selected by the Committee, for election by the
holders of the Common Stock as directors of the Company at the next annual
meeting of stockholders of the Company.
4. LEGEND. The following legend shall be noted on all certificates
representing shares of Common Stock and Non-voting Common Stock hereafter issued
which are subject to the terms of this Agreement:
"The shares represented by this certificate are subject to certain
substantial restrictions on transfer and voting, as provided in an
agreement dated as of September 15, 1993, among the holders of the
capital stock of the corporation, a copy of which agreement is on file
with the Secretary of the corporation."
5. AVAILABILITY OF EQUITABLE REMEDIES. The parties hereto agree and
acknowledge that a breach of the provisions of this Agreement could not be
adequately compensated by money damages. Accordingly, each party hereto shall
be entitled, in addition to any other right or remedy available to it, to an
injunction restraining such breach or any threatened breach and to specific
performance of any such provision of this Agreement, and in either case, no bond
or other security shall be required in connection therewith, and the parties
hereto hereby consent to such injunction and to the ordering of specific
performance.
6. POHLAD COMPANIES CORPORATE OPPORTUNITIES.
(a) Pohlad Companies, a Minnesota corporation, covenants and agrees that
for a period of ten years from the date hereof, any soft drink opportunities
available to Pohlad Companies and its Affiliates within the states set forth on
Schedule II hereto, will be first offered to the Company and that the Company
may in its sole discretion elect to pursue such opportunities. For purposes of
this Section 6, "soft drink opportunity" means any business opportunity to
bottle or distribute brand name soft drinks or carbonated water pursuant to a
franchise or similar agreement providing an exclusive territory with respect to
the distribution and sale of such brand name soft drinks.
Page 6 Exhibit 4.5
(b) Pohlad Companies shall provide written notice of the terms and
conditions of such opportunity to the Company. If the Company elects to pursue
such opportunity, it shall provide written notice of such election to Pohlad
Companies within 15 days of the notice of the opportunity given to the Company
by Pohlad Companies. If the Company fails to provide timely written notice to
Pohlad Companies of its election to pursue such opportunity or fails to enter
into a definitive agreement with respect to such business opportunity within 120
days after the date of the original notice to the Company by Pohlad Companies of
the availability of such business opportunity, Pohlad Companies or any of its
Affiliates may pursue such business opportunity for its or their own account and
without any obligation whatsoever to the Company.
7. REGISTRATION RIGHTS.
7.1. REGISTRATION ON REQUEST.
(a) REQUEST BY HOLDERS OF CONVERSION STOCK. At any time after the Company
has sold in a public offering shares of Common Stock registered under the
Securities Act, upon the written request of the holders of more than 50% of the
shares of Non-voting Common Stock requesting that the Company effect the
registration under the Securities Act of all or part of the Conversion Stock
into which their shares may be converted and specifying the intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all other holders of Non-voting Common Stock and
thereupon will, as soon as practicable but in no event later than 120 days after
such request, effect the registration under the Securities Act of:
(i) the shares of Conversion Stock which the Company has been so
requested to register; and
(ii) all other shares of Conversion Stock which the Company has been
requested to register by any other holder of shares of Non-voting Common
Stock by written request given to the Company within 30 days after the
giving of such written notice by the Company (which request shall specify
the intended method of disposition of such Conversion Stock), all to the
extent necessary to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the shares of Conversion Stock to be so
registered. The Company shall be obligated to effect only one registration
upon request of the holders of Non-voting Common Stock pursuant to this
Section 7.1.
(b) REGISTRATION STATEMENT FORM. The registration requested pursuant to
this Section 7.1 shall be effected by the filing of a registration statement on
Form S-1 or such other form as may be available, in the sole discretion of the
Company.
(c) EXPENSES. The Company will pay all registration expenses in
connection with registration requested pursuant to this Section 7.1.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested pursuant
to this Section 7.1 will not be deemed to have been effected unless it has been
declared effective
Page 7 Exhibit 4.5
by the Commission; PROVIDED, HOWEVER, that if, after it has become effective,
the offering of Stock pursuant to such registration is interrupted by any
stop order, injunction or other order or requirement of the Commission or any
other governmental or administrative agency or any court prevents or
otherwise limits the sale of Stock of the Company pursuant to the
registration, such registration shall be deemed not have been effected. If
(i) a registration requested pursuant to this Section 7.1 is deemed not to
have been effected or (ii) the registration requested pursuant to this
Section 7.1 did not remain effective for a period of at least 120 days and
less than all the registered shares were sold, then the Company shall remain
obligated to effect one registration pursuant to this Section 7.1, unless the
registration did not become effective or remain effective solely as a result
of bad faith actions of the holders of Non-voting Common Stock requesting
registration.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant to
this Section 7.1 involves an underwritten offering, the Company shall have the
right to approve the selection of the managing underwriter designated by the
holders of more than 50% of the shares of Non-voting Common Stock, which
approval shall not be unreasonably withheld.
(f) PRIORITY IN REQUESTED REGISTRATION. If a requested registration
pursuant to this Section 7.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing that, in its opinion, the number
of securities requested to be included in such registration by all selling
shareholders exceeds the number which can be sold in an orderly manner in such
offering, the number of shares of Conversion Stock and any other shares of
Common Stock held by selling shareholders to be included in such registration
shall be allocated in a PRO RATA basis among all such selling shareholders on
the basis of the relative number of shares of Common Stock or Conversion Stock
requested to be registered by each such selling shareholder.
7.2. INCIDENTAL REGISTRATION. (a) RIGHT TO INCLUDE STOCK. If the
Company at any time proposes to register any of its securities under the
Securities Act, whether or not for sale for its own account, it will each
such time give prompt written notice, which shall be in any event at least 20
days written notice prior to filing the registration statement, to all
holders of Conversion Stock, of its intention to do so and of such holders'
rights under this Section 7.2; PROVIDED, HOWEVER, that the Company shall not
be required to give such notice or to include shares of Stock in a
registration statement pursuant to this Section 7 if the proposed
registration statement relates solely to (x) securities to be offered to
employees pursuant to a stock option, stock savings or other employee benefit
plan, (y) securities proposed to be issued in exchange for securities or
assets of, or in conjunction with a merger or consolidation with, another
corporation, or (z) securities to be offered by the Company only to a class
or series of its then existing security holders. Upon the written request of
any holder of Non-voting Common Stock or Conversion Stock made within ten
business days after the receipt of notice pursuant to this Section 7.2 (which
request shall specify the intended number of shares of Conversion Stock to be
registered), the Company will effect the registration under the Securities
Act of all shares of Conversion Stock which the Company has been so requested
to register, provided that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company must give written
Page 8 Exhibit 4.5
notice of such determination to each holder of shares of Stock, and,
thereupon, shall be relieved of its obligation to register any Stock in
connection with such registration (but not from its obligation to pay the
registration expenses in connection therewith), and (ii) if a registration
requested pursuant to this Section 7.2 shall involve an underwritten public
offering, any holder of shares of Conversion Stock requesting that shares of
Stock be included in such registration may elect, in writing at least 30 days
prior to the effective date of the registration statement filed in connection
with such registration, not to register such securities in connection with
such registration.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant to
this Section 7.2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration by all selling shareholders
exceeds the number which can be sold in an orderly manner in such offering, the
number of shares of Conversion Stock and any other shares of Common Stock held
by selling shareholders to be included in such registration shall be allocated
on a PRO RATA basis among all such selling shareholders on the basis of the
relative number of shares of Common Stock or Conversion Stock requested to be
registered by each such selling shareholder.
(c) EXPENSES. The Company will pay all registration expenses in
connection with the registration of shares of Conversion Stock requested
pursuant to this Section 7.2; PROVIDED, HOWEVER, that the Company shall not
be obligated to pay registration expenses in connection with more than two
registrations of Conversion Stock requested pursuant to Section 7.2 (not
including any registrations in which the Company determined not to register
Conversion Stock). The Company shall not have fulfilled its obligation to
pay registration expenses in connection with a registration requested
pursuant to Section 7.2 if (i) the registration did not become effective or
(ii) the registration did not remain effective for a period of at least 120
days and less than all of the registered shares were sold, unless the
registration did not become effective or remain effective solely as a result
of bad faith actions of the holders of shares of Non-voting Common Stock or
Conversion Stock requesting registration.
7.3. REGISTRATION PROCEDURES. If and whenever the Company is required to
effect or cause the registration of any Conversion Stock under the Securities
Act as provided in this Agreement, the Company will, as expeditiously as
possible:
(a) prepare and, in any event within 120 days after the end of the
period within which requests for registration may be given to the Company,
file with the Commission a registration statement with respect to such Stock
and, within 180 days after the date requests for registration were first
given, cause such registration statement to become effective; PROVIDED,
HOWEVER, that the Company may discontinue any registration of its securities
which is being effected pursuant to Section 7.2 at any time prior to the
effective date of the registration statement relating thereto as provided in
Section 7.2;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
not less than 120 days
Page 9 Exhibit 4.5
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
seller or sellers of Conversion Stock set forth in such registration
statement;
(c) furnish to each seller of such Conversion Stock such number of
copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such registration statement (including
each preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Conversion Stock by such seller;
(d) register or qualify such Conversion Stock covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions as each seller shall reasonably request, and do any and all
other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Conversion
Stock owned by such seller;
(e) cause such Conversion Stock covered by such registration statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Conversion Stock;
(f) immediately notify each seller of any such Conversion Stock covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (b) of this Section 7.3, if the
Company becomes aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing, and within five days prepare and furnish to all
sellers a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as there-after delivered to the
purchasers of such Conversion Stock, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of circumstances then existing;
(g) otherwise to comply with all applicable rules and regulations of the
Commission, and make available to its security-holders, as soon as
practicable, an earnings statement covering the period of at least twelve
months, but not more than 18 months, beginning with the first month after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(h) make available for inspection by any seller of such Conversion Stock
covered by such registration statement, by any underwriter participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other
Page 10 Exhibit 4.5
agent retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties of
the Company as shall be reasonably necessary to enable them to exercise their
due diligence responsibilities, and cause all of the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with
such registration statement.
The Company may require each seller of Conversion Stock as to which any
registration is being effected to furnish the Company such information regarding
such seller from time to time as may be required by the Securities Act.
Each holder of Conversion Stock will be deemed to have agreed that, upon
receipt of any notice from the Company of the kind described in clause (f) of
this Section 7.3 such holder will forthwith discontinue disposition of
Conversion Stock pursuant to the registration statement covering such Conversion
Stock until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (f) of this Section 7.3, and, if so directed
by the Company, such holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such holder's
possession, of the prospectus relating to such Conversion Stock at the time of
receipt of the Company's notice. In the event the Company shall give any such
notice, the time period described in clause (b) of this Section 7.3 shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to clause (f) of this Section 7.3 to and
including the date when each seller of Conversion Stock covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus described by clause (f) of this Section 7.3.
7.4. (a) INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Securities Act
pursuant to Sections 7.1 or 7.2, the Company agrees to (i) indemnify and hold
harmless, to the extent permitted by law, the seller of any Conversion Stock
covered by such registration statement, its directors and officers and
general and limited partners (and the directors and officers thereof), each
other person who participates as an underwriter in the offering or sale of
such securities and each other person, if any, who controls such seller or
any such underwriter within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, and
expenses to which such seller, any such director or officer or general or
limited partner or any such underwriter or controlling person may become
subject under the Securities Act, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (aa) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, or (bb) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (ii) reimburse such seller and
each such director, officer, general and limited partner, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that
Page 11 Exhibit 4.5
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary Prospectus in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation thereof; and PROVIDED, HOWEVER, that the Company will not be
required to indemnify any person who participates as an underwriter in the
offering or sale of Conversion Stock or any other person, if any, who
controls such underwriter within the meaning of the Securities Act to the
extent that any such loss, claim, damage or liability for which
indemnification is claimed results from such underwriter's failure to send or
give a copy of the final prospectus to the person asserting an untrue
statement or an alleged untrue statement or omission or alleged omission at
or prior to the written confirmation of such sale, if such statement or
omission was corrected in such final prospectus and the Company has
previously furnished copies thereof to such underwriter. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of such seller or any such director, officer, general or limited
partner, underwriter or controlling person and shall survive the transfer of
such securities by such seller.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Conversion Stock in any registration statement
filed in accordance with this Section 7, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of
such Conversion Stock or any underwriter, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 7.4(a)) the
Company, any directors, officers and other controlling persons thereof, and
all other prospective sellers with respect to any statement or alleged
statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed by such seller or underwriter specifically stating that it is for
use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company or any of the prospective sellers or any of their respective
directors, officers or controlling persons and shall survive the transfer of
such securities by such seller.
(c) NOTICE OF CLAIMS. Promptly after the receipt of an indemnified party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 7.4 such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 7.4 except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's judgment a
conflict of interest between such indemnified and
Page 12 Exhibit 4.5
indemnifying parties exists in respect of such claim, the indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it
may wish, with counsel reasonably satisfactory to such indemnified party and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred in connection with the defense thereof. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by claimant or plaintiff
to such indemnified party, of a release from all liability in respect to such
claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding subdivisions of this Section 7.4 (with appropriate modifications)
shall be given by the Company and each seller of Conversion Stock with respect
to any required registration or other qualification of securities under any
federal or state law or regulation or governmental authority other than the
Securities Act.
(e) RULE 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of any holder of Conversion Stock, make publicly
available other information), and it will take such further action as any holder
of Conversion Stock may reasonably request, all to the extent required from time
to time to enable such holder to sell all or a portion of Conversion Stock
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Conversion Stock,
the Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
(f) HOLDBACK AGREEMENT.
(i) If any registration pursuant to Sections 7.1 or 7.2 shall be in
connection with an underwritten public offering, each holder of Conversion Stock
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any Conversion Stock, and
shall not effect any such public sale or distribution of any other equity
security of the Company or of any security convertible into or exchangeable for
any equity security of the Company (in each case, other than a part of such
underwritten public offering) within seven days before or 90 days after the
effective date of such registration, and the Company hereby also so agrees and
agrees to cause each other holder of at least 10% of the aggregate number of the
shares of its Common Stock to so agree.
(ii) The Company agrees (aa) not to effect any public sale or
distribution of its equity securities (other than any such sale or distribution
of such securities in
Page 13 Exhibit 4.5
connection with any merger or consolidation by the Company or any Subsidiary
or the acquisition by the Company or a Subsidiary of the capital stock or
substantially all of the assets of any other person or in connection with an
employee stock option or other benefit plan) during the seven days prior to,
and during the 90 day period beginning on, the effective date of any
registration statement in which the holders of Conversion Stock are
participating (except as part of such registration), and (bb) that any
agreement entered into after the date of this Agreement pursuant to which the
Company issued or agrees to issue any privately placed equity securities
shall contain a provision under which holders of such securities agree not to
effect any public sale or distribution of any such securities during such
period, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such registration, if permitted).
8. RIGHT TO PURCHASE SERIES AA STOCK.
(a) Each holder of Series AA Stock hereby agrees to sell its shares of
Series AA Stock upon the terms and conditions set forth in this Section 8.
Commencing on the date hereof and until 5:00 p.m. Minneapolis time on
September 15, 2013, any of Pohlad Companies, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx or any of their Affiliates (collectively, the "Pohlads"), may
elect to purchase all, but not less than all, of the shares of Series AA Stock
held by the Series AA Stockholders. Written notice of such election to purchase
shall be made to each Series AA Stockholder.
(b) The purchase price per share of Series AA Stock for purposes of this
Section 8 shall be $5,000, subject to adjustment from time to time as set forth
below, plus accrued and unpaid dividends, if any (the "Purchase Price"). In
case the Company shall at any time subdivide the outstanding shares of the
Series AA Stock, or issue a stock dividend on its outstanding Series AA Stock
(other than any dividend payable pursuant to Article SIXTH of the Company's
Amended and Restated Certificate of Incorporation), the Purchase Price in effect
immediately prior to such subdivision or the issuance of such dividend shall be
proportionately decreased, and in case the Company shall at any time combine the
outstanding shares of the Series AA Stock, the Purchase Price in effect
immediately prior to such combination shall be proportionately increased,
effective at the close of business on the date of such subdivision, dividend or
combination, as the case may be.
(c) The closing of the purchase of the Series AA Stock pursuant to this
Section 8 shall be held at a mutually acceptable place on a mutually acceptable
date not more than 90 days after the end of the Notice Period. At such closing,
the purchaser shall pay the full Purchase Price for the outstanding shares
purchased by it upon surrender of the certificate or certificates therefor,
which shall be sold free and clear of all liens, claims and encumbrances.
Unless otherwise agreed by the parties, the total Purchase Price shall be
payable by wire transfer of funds or by certified or cashier's check.
9. CERTAIN AGREEMENTS OF THE COMPANY.
9.1. AGREEMENT TO OBTAIN CONSENT TO CERTAIN ACTIONS. For so long as
Equity Beverage, Inc. holds any shares of Common Stock, the Company agrees
that it will not take,
Page 14 Exhibit 4.5
nor will it permit any of its Subsidiaries to take, any of the following
actions without the prior written consent of Equity Beverage, Inc.:
(a) The acquisition or divestiture of any business, operation, or entity
outside of the soft drink business. For purposes of this Section 9, "Soft Drink
Business" means any business involved in the bottling or distribution of brand
name soft drinks pursuant to a franchise or similar agreement providing an
exclusive territory with respect to the distribution and sale of such brand name
soft drinks.
(b) Any investment in a franchise for the operation of a soft drink
business in a territory which is outside of the territories covered by the
franchise agreements between PepsiCo, Inc. and the Company as in effect on March
7, 1988.
(c) Any investment in a franchise in the soft drink business which, if
consummated, would obligate the Company to discontinue the distribution and sale
of any product subject to a franchise agreement with PepsiCo, Inc.
10. MISCELLANEOUS.
10.1. STATUS OF TRANSFEREES. By acquiring any share of Stock, any
transferee of any of the parties executing this Agreement shall be deemed to be
a party to this Agreement and to agree to be subject to all the terms and
conditions of this Agreement as if such transferee had signed this Agreement.
10.2. TERMINATION. Except for the provisions of Sections 2, 6, and 7,
this Agreement shall terminate at such time as there shall be a Public Market
for the Common Stock.
10.3. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered, or shall be
sent by certified or registered mail, return receipt requested, postage prepaid
and addressed to each party at its address for communications contained in the
records of the Company or to such other address as may have been furnished to
each of the other parties hereto by notice given in accordance the provisions of
this Section from any party. All notices shall be deemed to have been given
either at the time of delivery thereof to any officer or employee of the person
entitled to receive such notice at the address of such person, or, if mailed, at
the completion of the fifth full business day following the time of such mailing
thereof to such address, as the case may be. Whenever pursuant to this
Agreement, notice is required to be given to any or all of the parties hereto,
such requirement shall be satisfied if such notice is given, in the manner
prescribed, at the addresses of such persons contained in the records of the
Company as may be amended from time to time as herein provided.
10.4. WAIVER. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver or
to deprive that party of the right thereafter to insist upon
Page 15 Exhibit 4.5
strict adherence to that term or any other term of this Agreement. Any
waiver or amendment must be in writing and, if by a corporation, authorized
by a resolution of the board of directors of the waiving party.
10.5. BINDING EFFECT. The provisions of this Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns of the parties hereto which are not natural
persons and the respective assigns, heirs, and personal representatives of
the parties hereto who are natural persons.
10.6. NO THIRD PARTY BENEFICIARIES. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person
not a party to this Agreement (except as provided in Section 10).
10.7. SEPARABILITY. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
10.8. HEADINGS. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
10.9. COUNTERPARTS; GOVERNING LAW. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of Minnesota,
without giving effect to conflict of laws.
Page 16 Exhibit 4.5
IN WITNESS WHEREOF, the parties have duly executed this Amended and
Restated Shareholders' Agreement as of the date first above written.
DELTA BEVERAGE GROUP, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Its CEO
--------------------------------------
FIRST BANK SYSTEM, INC.
By /s/ illegible
-----------------------------------------
Its EVP
--------------------------------------
NORWEST EQUITY CAPITAL, INC.
By /s/ illegible
-----------------------------------------
Its VP
--------------------------------------
THE XXXXXX XXXXXXX LEVERAGED
MEZZANINE FUND, L.P.
By CIGNA Funding Limited Partnership,
a General Partner
By CIGNA Leveraged Capital Fund, Inc.,
its General Partner
By /s/ Xxx X. Xxxxxxx
-------------------------------------
Its Vice President
--------------------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Xxxxxx Xxxxx
------------------------------------------
Its Vice President and Managing Director
---------------------------------------
Page 17 Exhibit 4.5
MASSMUTUAL CORPORATE INVESTORS
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Its Senior Vice President
--------------------------------------
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ illegible
-----------------------------------------
Its Vice President
--------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY*
By /s/ Xxx X. Xxxxxxx
-----------------------------------------
Its Managing Director
--------------------------------------
CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY*
By /s/ Xxx X. Xxxxxxx
-----------------------------------------
Its Managing Director
--------------------------------------
* THIS ENTITY IS EITHER THE REGISTERED OWNER OF ONE OR MORE OF THE SECURITIES
PERTAINING HERETO OR IS A BENEFICIAL OWNER OF ONE OR MORE OF SUCH
SECURITIES OWNED BY AND REGISTERED IN THE NAME OF A NOMINEE FOR THAT
ENTITY.
Page 18 Exhibit 4.5
POHLAD COMPANIES
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Its
--------------------------------------
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
XXXXXX INDUSTRIES, INCORPORATED
By /s/ illegible
-----------------------------------------
Its CFO
--------------------------------------
EQUITY BEVERAGE, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Its Vice President
--------------------------------------
ARBEIT & CO.
By /s/ Xxxx X. Xxxx
-----------------------------------------
Its General Manager
--------------------------------------
INSURANCE COMPANY OF NORTH
AMERICA*
By /s/ Xxx X. Xxxxxxx
-----------------------------------------
Its Managing Director
--------------------------------------
Page 19 Exhibit 4.5
FIRST COLONY LIFE INSURANCE
COMPANY
By /s/ illegible
-----------------------------------------
Its Senior Vice President
--------------------------------------
* THIS ENTITY IS EITHER THE REGISTERED OWNER OF ONE OR MORE OF THE SECURITIES
PERTAINING HERETO OR IS A BENEFICIAL OWNER OF ONE OR MORE OF SUCH
SECURITIES OWNED BY AND REGISTERED IN THE NAME OF A NOMINEE FOR THAT
ENTITY.
Page 20 Exhibit 4.5
SCHEDULE I
Pohlad Companies
Xxxxxx Industries, Incorporated
Equity Beverage, Inc.
Arbeit & Co.
CIGNA Property and Casualty Insurance Company
ICO,Inc.
The Xxxxxx Xxxxxxx Leveraged Mezzanine Fund, L.P.
The Xxxxxx Xxxxxxx Senior Debt Fund, L.P.
Connecticut General Life Insurance Company
The Northwestern Mutual Life Insurance Company
Massachusetts Mutual Life Insurance Company
MassMutual Corporate Investors
Norwest Equity Capital, Inc.
First Bank System, Inc.
Insurance Company of North America
First Colony Life Insurance Company
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Page 21 Exhibit 4.5
SCHEDULE II
Pohlad Companies Opportunities - Restricted States
Louisiana
Arkansas
Missouri
Mississippi
Alabama
Georgia
South Carolina
North Carolina
Tennessee
Kentucky
Virginia
Xxxx Xxxxxxxx
Xxxxxxxx xx Xxxxxxxx
Xxxxxxxx
Xxxxx
Page 22 Exhibit 4.5
