AMENDMENT NO.1 TO STOCKHOLDERS AGREEMENT
Exhibit
10.16
AMENDMENT
NO.1
This
Amendment No.1 to STOCKHOLDERS AGREEMENT amends as of on or about April 20,
2006
the Stockholders Agreement dated as of November 18, 2005 (the “Agreement”)
by and
between Chicken Acquisition Corp., a Delaware corporation (the “Company”),
Trimaran Pollo Partners, L.L.C., a Delaware limited liability company
(“Trimaran”),
the
individuals set forth on Schedule A hereto (together with the employees of
the
Company or its Subsidiaries (as defined in Section 1.1) who become parties
to
this Agreement pursuant to the terms and conditions of this Agreement, the
“Management
Stockholders”))
and
such other Persons that become parties to this Agreement pursuant to the
terms
and conditions of this Agreement (the “Additional
Stockholders”).
Capitalized terms not defined herein have the meanings set forth in the
Agreement.
RECITALS
WHEREAS,
the parties hereto wish to increase the number of days to exercise the call
right in Section 6.1 and the put right in Section 6.3 of the Agreement from
seventy-five (75) to ninety (90) days so that the rights in the Agreement will
cover the same periods as apply to similar rights in Section 4 of the form
of
Exchange Stock Option Agreement and Section 7 of the form of Non-Qualified
Stock
Option Agreement and used by the Company;
NOW,
THEREFORE, the parties hereto agree as follows:
1. Section
6.1 of the Agreement is deleted in its entirety and replaced with the
following:
“6.1 Call
Rights.
(a) Voluntary
Termination or Termination for Cause.
If,
prior to a Qualified Public Offering, a Management stockholder’s employment with
the Company or any of its Subsidiaries is terminated by reason of Voluntary
Termination (other than Retirement) or for Cause, then the Company shall have
the right, for ninety (90) days following the date of termination of such
employment and subject in each case to the provisions of Section 6.4, to give
notice to purchase or cause to be purchased from such Management Stockholder
and
his or her Permitted Transferees, and such Management Stockholder and his or
her
Permitted Transferees shall be required to sell on one occasion to the Company,
all shares of Company Stock then held by such Person(s), or which may be
acquired upon exercise of Options or Exchange Options subsequent to such
termination, at a price equal to the lesser of Cost or the Fair Market Value
of
all such shares of Company Stock. All shares of Common Stock acquired by such
Management Stockholder pursuant to an exercise of Options in accordance with
the
terms of the applicable Options or the Company Option Plan upon such termination
shall be subject to the call right described above.
(b) Termination
for any other Reason.
If,
prior to a Qualified Public Offering, a Management Stockholder’s employment with
the Company or any of its Subsidiaries is terminated by death, Disability or
Retirement or any other reason not covered by Sections 6.1(a), then the Company
shall have the right, for ninety (90) days following the date of termination
of
such employment and subject in each case to the provisions of Section 6.4,
to
give notice to purchase or cause to be purchased from such Management
Stockholder and his or her Permitted Transferees, and such Management
Stockholder and his or her Permitted Transferees shall be required to sell
on
one occasion to the Company, all shares of Company Stock then held by such
Person(s), or which may be acquired upon exercise of Options or Exchange Options
subsequent to such termination, at a price equal to the Fair Market Value of
such shares of Company Stock. All shares of Company Stock acquired by such
Management Stockholder pursuant to an exercise of Options in accordance with
the
terms of the applicable Options or the Company Option Plan upon such termination
shall be subject to the call right described above.
(c) Notice
of Exercise: Closing.
If the
Company (of its designee) desires to exercise its right to purchase shares
of
Company Stock pursuant to its rights under this Section 6.1, the Company (or
its
designee) shall, not later than the expiration date of the ninety (90) day
call
period referred to in Section 6.1 (a) and (b) above (as it may be extended
pursuant to the provisions of Section 6.4), send written notice of its intention
to purchase or cause to be purchased all of the shares of Company Stock held
by
such Management Stockholder and his or her Permitted Transferees pursuant to
this Section 6.1. Subject in each case to the provisions of Section 6.4, the
closing of the purchase shall take place at the principal office of the Company
ten (10) days following the giving of such notice or as soon thereafter as
practicable but in no event later than twenty (20 days after the giving of
such
notice. The purchase price shall be paid in accordance with Section
6.5.”
2. Section
6.3 of the Agreement is deleted in its entirety and replaced with the
following:
“6.3 Put
Rights.
(a) Termination
other than Voluntary, for Cause or Death.
If,
prior to a Qualified Public Offering, a Management stockholder’s employment with
the Company or any of it Subsidiaries is terminated as a result of a resignation
by such Management Stockholder for Good Reason (but excluding Retirement if
included within any definition of Good Reason) or by the Company or any of
its
Subsidiaries without Cause, or by death or Disability, then the Management
Stockholder shall have the right, for ninety (90) days following the date of
termination of such employment and subject in each case to the provisions of
Section 6.4, to give notice to the Company to purchase from such Management
Stockholder and his or her Permitted Transferees, and the Company shall be
required to purchase on one occasion from such Management Stockholder and his
or
her Permitted Transferees, all shares of Company Stock then held by such
Person(s), or which may be acquired upon exercise of Options or Exchange Options
subsequent to such termination, at a price equal to the Fair Market Value of
such shares of Company Stock. All shares of Common Stock acquired by such
Management Stockholder pursuant to an exercise of Options in accordance with
the
terms of the applicable Options or the Company Option Plan upon such termination
shall be subject to the put right described above.
(b) Notice
of Exercise; Closing.
If the
Management Stockholder desires to exercise its right to sell shares of Company
Stock pursuant to its rights under this Section 6.3, then the applicable
Management Stockholder shall, not later than the expiration date of the ninety
(90) day put period referred to in Section 6.3 (a) above (as it may be extended
pursuant to the provision of Section 6.4), send written notice of its intention
to sell all of the shares of Company Stock held by such Management Stockholder
and his or her Permitted Transferees pursuant to this Section 6.3. Subject
in
each case to the provisions of Section 6.4, the closing of the purchase shall
take place at
the
principal office of the Company ten (10) days following the giving of such
notice or as soon thereafter as practicable but in no event later than twenty
(20) days after the giving of such notice. The purchase price shall be paid
in
accordance with Section 6.5.”
3. Except
as
expressly amended above, the Agreement shall remain in force.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment No. 1
to
Stockholders Agreement as of the date first written above.
| MANAGEMENT STOCKHOLDER | ||
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| By: | /s/ Management Stockholders listed on Schedule A | |
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| CHICKEN ACQUISITION CORP. | ||
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| By: | /s/ Xxxxxx Flyer | |
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| TRIMARAN POLLO PARTNERS, L.L.C | ||
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| By: | /s/ Xxxxxx Flyer | |
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Schedule
A
Management
Stockholders
Xxxxx
Xxxxxxxxxx
Xxxxx
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The
Xxxxxx Family Trust
The
Xxxxx
Family Trust
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Xxxxxxxxx
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Xxxxx
Xxxxx
Xxxxx
Xxxxxx
Fine
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Xxxxxx
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Xxxx
Xxxxxxxx
Xxxxxxx
Xxxx
Xxxxxx
Xxxxxxxx
Xxxxx
Xxxxxxx
Xxx
Xxxxxx
Xxxxxx
Family Trust
Xxxx
Xxxxxxxx
Xxxxxxx
Xxxxxx
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxx
Xxxxx
Xxxxx
Weeks
Xxxxxxx
Xxxxxxx
