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EXHIBIT 2.02
STOCK PURCHASE AND STOCKHOLDER'S AGREEMENT
STOCK PURCHASE AND STOCKHOLDER'S AGREEMENT (this "Agreement"), dated as
of January 28, 1998, among the Company, Artal Luxembourg S.A., Flowers (as
defined in Article I below) and Bermore, Ltd.
WHEREAS, Artal Luxembourg S.A. has requested, and Flowers has consented
to, a demand registration pursuant to Section 1.1(a) of the Original
Stockholders' Agreement;
WHEREAS, Artal Luxembourg S.A. and Flowers have caused the Company, on
December 12, 1997, to file the S-1 Registration Statement with the SEC relating
to the sale of the Artal IPO Shares and the Bermore IPO Shares;
WHEREAS, it is expected that the S-1 Registration Statement will be
declared effective by the SEC at 12:00 p.m. on the date hereof, subsequent to
the execution of this Agreement;
WHEREAS, based upon an evaluation of their discussions with the
Underwriters and generally prevailing market conditions, each of the parties
hereto believes that the Underwriting Agreement will be executed on the date
hereof;
WHEREAS, if the IPO is consummated, Artal Luxembourg S.A. and Flowers
have agreed that Flowers will purchase the Artal Control Shares simultaneously
with the Closing in connection with consummation of the Control Transaction,
upon the terms and conditions set forth in the New Stockholders' Agreement; and
WHEREAS, if the Control Transaction is consummated, Artal Luxembourg
S.A., Flowers and Bermore, Ltd. have agreed that Flowers also will purchase the
Bermore Control Shares simultaneously with the Closing in connection with
consummation of the Control Transaction, upon the terms and conditions set forth
herein;
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein shall have the
meanings set forth below:
"Affiliate" means any Person which, directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, another Person. The term "control" includes, without
limitation, the possession, directly or indirectly, of the power to direct the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" shall have the meaning specified in the
first paragraph hereof.
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"Artal" means Artal Luxembourg S.A., together and collectively
with any other Person who becomes the owner of Artal Shares in accordance with
Section 2.13 hereof.
"Artal Basket" means the number of Artal Shares that is equal
to the product of 1,031,850 and a fraction, (i) the numerator of which is the
number of Remaining Artal Shares and (ii) the denominator of which is the number
of Remaining Bermore Shares.
"Artal Control Shares" means the 9,581,169 Artal Shares to be
sold by Artal to Flowers upon Closing in connection with the consummation of the
Control Transaction.
"Artal IPO Shares" means the 7,121,485 shares of Common Stock
to be sold by Artal in the IPO, as such number may be increased or decreased
(whether to accomodate any exercises of overallotment options by the
Underwriters or otherwise, including pursuant to Section 2.10 hereof).
"Artal Shares" means (a) the Common Stock beneficially owned
by Artal on the date of this Agreement and (b) all Common Stock, Preferred
Stock, Common Stock Equivalents and indebtedness issued in respect thereof, in
exchange therefor, or in substitution thereof, in connection with a
Recapitalization.
"Bermore" means Bermore, Ltd., a Bermuda company, together and
collectively with any other Person who becomes the owner of Bermore Shares in
accordance with Section 4.2(a), (c) or (d) hereof.
"Bermore Control Shares" means the 1,616,691 Bermore Shares to
be sold by Bermore to Flowers upon Closing in connection with the consummation
of the Control Transaction.
"Bermore IPO Shares" means the 4,343,515 Bermore Shares to be
sold by Bermore in the IPO, as such number may be increased (whether to
accomodate any exercises of overallotment options by the Underwriters or
otherwise, including pursuant to Section 2.10 hereof).
"Bermore Shares" means (a) the Common Stock beneficially owned
by Bermore on the date of this Agreement, including, without limitation, shares
of Common Stock issuable upon exercise of the GFI Warrant, and (b) all Common
Stock, Preferred Stock, Common Stock Equivalents and indebtedness issued in
respect thereof, in exchange therefor, or in substitution thereof, in connection
with a Recapitalization.
"Closing" means the consummation of the IPO and, if the IPO is
consummated, the consummation of the Control Transaction.
"Closing Date" means the date on which the Closing occurs.
"Common Stock" means the Company's Common Stock, par
value $.01 per share, and any capital stock of any class of the
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Company hereafter authorized which is not limited to a fixed sum or percentage
of par or stated value in respect to the rights of the holders thereof to
participate in dividends or in the distribution of assets upon any liquidation,
dissolution or winding up of the Company.
"Common Stock Equivalents" means (without duplication with any
Common Stock or other Common Stock Equivalents) rights, warrants, options,
convertible securities, or exchangeable securities or indebtedness, or other
rights, exercisable for or convertible or exchangeable into, directly or
indirectly, Common Stock or securities exercisable for or convertible or
exchangeable into Common Stock, whether at the time of issuance or upon the
passage of time or the occurrence of some future event.
"Company" means Keebler Foods Company, a Delaware
corporation.
"Control Transaction Price Per Share" means the price per
share paid to Artal by Flowers for the Artal Control Shares.
"Control Transaction" means the sale of the Artal Control
Shares and the Bermore Control Shares to Flowers, which sale shall (i) occur
simultaneously with and is conditioned upon the consummation of the IPO and (ii)
result in Flowers owning 55.2% of the Common Stock.
"Custodian" has the meaning set forth in Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Excluded Artal Transfer" means any Transfer of Artal Shares
made in compliance with Section 2.13 (i) to or among its Affiliates, (ii) to or
among any members of its Family Group, (iii) pursuant to a pledge or similar
agreement to secure debt of the transferor (incurred in good faith and not for
the purposes of avoiding Artal's obligations under Section 4.3, Section 4.3 or
Article V) owing to a bank or other bona fide financial institution (provided
that such security interest has not yet been exercised by the pledgee),
including, without limitation, any such Transfer upon the exercise by such bank
or other bona fide financial institution of its rights under such pledge or
similar agreement to acquire beneficial or other ownership of the Artal Shares
pledged thereunder, or (iv) by an individual upon his or her death to his or her
estate, provided that the beneficiaries of the estate are Persons specified in
clause (i) or (ii) hereof.
"Family Group" means, with respect to any individual, such
individual's spouse and descendants and such individual's parents, grandparents,
aunts, uncles, brothers, sisters and their respective spouses and descendants
(in each case, whether natural
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or adopted) and any trust or similar entity established and maintained solely
for the benefit of such individual and/or his spouse, descendants and/or such
above-listed relatives and all of the aforesaid of the grantor of a trust that
is a stockholder of the Company.
"Flowers" means Flowers Industries, Inc., a Georgia corporation.
"GFI" means G.F. Industries, Inc., a Nevada corporation.
"GFI Warrant" means the warrant to purchase 6,135,781 shares of
Common Stock at $3.2272 per share, issued to GFI on June 4, 1996 and
subsequently transferred to Bermore.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust and Improvements
Act of 1976, as amended.
"Investor Joinder" means a joinder agreement, substantially in
the form of Annex B hereto, by which a Person becomes a party to this Agreement
after the date hereof.
"IPO" means a public offering of the Artal IPO Shares and the
Bermore IPO Shares to be consummated pursuant to the S-1 Registration Statement.
"Lockup Expiration Date" means the date on which the lockup
period provided for in the Underwriting Agreement has expired with respect to
Artal or has otherwise been terminated or waived with respect to Artal.
"Mandatory Sale Event" has the meaning set forth in Section 4.5.
"Mandatory Sale Shares" has the meaning set forth in Section
4.5.
"Monthly Transfer" has the meaning set forth in Section 4.2(e).
"New Stockholders' Agreement" means the Stock Purchase Agreement
dated as of January 28, 1998 among Artal, Flowers and the Company, including
Annex A thereto (as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof).
"Original GFI Agreement" means the GFI Stockholder's Agreement
dated as of June 4, 1996 among Artal, Flowers, GFI and the Company (including
all of the provisions of Annex A thereto).
"Original Stockholders' Agreement" means the Stockholders'
Agreement dated as of January 26, 1996 among Artal, Flowers and the Company.
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"Person" means an individual, a partnership, a joint venture,
a corporation, an association, a joint stock company, a limited liability
company, a trust, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means any capital stock of any class of the
Company hereafter authorized that provides for a preference on liquidation or
with respect to dividends over any other class of capital stock of the Company
or any similar kind of equity security.
"Recapitalization" means any stock split, reverse stock split,
dividend or combination, or any recapitalization, reclassification, merger,
consolidation, sale of all or substantially all assets, exchange or other
similar reorganization.
"Release Date" means the earliest of (i) the date on which
Artal owns less than 4,586,000 shares of Common Stock, (ii) the date that is
three years after the Lockup Expiration Date or (iii) the date on which Artal's
demand registration rights under the New Stockholders' Agreement have expired or
have otherwise been terminated or waived in their entirety.
"Remaining Artal Shares" means the Artal Shares owned by Artal
immediately upon consummation of the Closing, after giving effect to the sale of
the Artal IPO Shares and the Artal Control Shares.
"Remaining Bermore Shares" means the Bermore Shares owned by
Bermore immediately upon consummation of the Closing, after giving effect to the
sale of the Bermore IPO Shares and the Bermore Control Shares.
"Restricted Period" means the period from the Closing Date to
but excluding the Release Date.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Securities Holding Company" shall have the meaning
specified in Section 4.3.
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"Subsidiary" means any corporation of which the securities
having a majority of the ordinary voting power in electing the board of
directors are, at the time as of which any determination is being made, owned by
a Person either directly or through one or more of its Subsidiaries.
"Tag/Drag Notice" has the meaning set forth in Section 4.3(a).
"S-1 Registration Statement" means the Registration Statement
on Form S-1 filed with the SEC by the Company on December 12, 1997, as amended
through the date hereof, in respect of the IPO.
"Transfer" shall be construed broadly and shall include any
direct or indirect transfer by way of issuance, sale, assignment, hypothecation,
disposition, participation, pledge, gift, bequeath, intestate transfer,
distribution, liquidation, merger or consolidation.
"Underwriters" means the underwriters in respect of the IPO.
"Underwriting Agreement" means the underwriting agreement to
be executed among Artal, Bermore, the Company and the Underwriters in respect of
the IPO.
"Warrant Exercise Price Per Share" means $3.2272.
"Warrant Shares" means the 6,135,781 shares of Common Stock
issuable to Bermore upon the exercise of the GFI Warrant in the manner
contemplated by Section 2.3.
ARTICLE II
COVENANTS AND UNDERTAKINGS
2.1 Sale of Bermore Shares. Upon the terms and subject to the
conditions set forth in this Agreement and on the basis of the representations,
warranties, covenants, agreements, undertakings and obligations contained
herein, if the IPO is consummated and, simultaneously with such consummation,
the Control Transaction is consummated, (a) Bermore hereby agrees to sell at
Closing, free and clear of all liens, encumbrances and claims of any nature
(other than liens, encumbrances and claims resulting from the acts of the
Underwriters or Flowers, respectively), the Bermore IPO shares in the IPO and
the Bermore Control Shares to Flowers and (b) Flowers hereby agrees to purchase
from Bermore at Closing the Bermore Control Shares.
2.2 Purchase Price and Payment for Bermore Control Shares. If the IPO
is consummated, the product of (a) the Control Transaction Price Per Share and
(b) the number of Bermore Control Shares shall be paid at Closing to Bermore by
Flowers in cash by wire transfer in same-day funds to an account specified in
writing by Bermore to Flowers at least two business days prior to Closing.
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2.3 Exercise of GFI Warrant. At the Closing, the following actions
shall occur, or shall be deemed to occur, simultaneously, notwithstanding
anything to the contrary contained in the GFI Warrant:
(a) Bermore shall, by delivery of a written notice to the Company,
exercise the GFI Warrant and the Company shall, without receipt of any cash
consideration by the Company directly from Bermore in respect of such exercise,
(i) cancel the GFI Warrant and deliver to Bermore a stock certificate registered
in its name representing 6,135,781 shares of Common Stock and (ii) cancel such
stock certificate and issue (A) to Flowers a stock certificate registered in its
name representing 1,616,691 shares of Common Stock, which certificate shall bear
all appropriate legends and other notations, if any, and (B) a stock certificate
to the Underwriters representing a number of shares of Common Stock equal to
the Bermore IPO Shares registered in such names as may be requested by the
Underwriters, which certificate shall not bear any restrictive legends; and
(b) An amount equal to $19,801,392.44 shall be deducted from the net
amount to be wired to Bermore by the Underwriters as consideration for
the Warrant Shares, and such amount shall be wired by the Underwriters to the
Company on behalf of Bermore and shall constitute valid payment in full by
Bermore for the shares of Common Stock issued upon exercise of the GFI Warrant,
in accordance with the terms of the GFI Warrant.
2.4 Remaining Bermore Shares. At the Closing, the Company shall (a)
deliver to Bermore a stock certificate registered in Bermore's name for the
Remaining Bermore Shares, which stock certificate shall not bear any restrictive
legends, and (b) an acknowledgment that, in its belief, as of the Closing Date,
Bermore is eligible to sell the Remaining Bermore Shares pursuant to paragraph
(k) of Rule 144 of the Securities Act, subject to the expiration of the lockup
period provided for in the Underwriting Agreement.
2.5 Termination of Original GFI Agreement. Artal, Flowers, Bermore, and
the Company covenant and agree that the Original GFI Agreement will terminate
effective upon the Closing without any further action by the parties thereto,
except that provisions contained in Annex A thereof which by their terms are
applicable after the consummation of any offering made pursuant thereto
(including, without limitation, provisions relating to indemnification and
contribution), shall continue to remain in full force and effect as provided
therein in respect of the Bermore IPO Shares.
2.6 Resignation of Board Representative. Bermore covenants to
cause to be delivered at Closing the resignation of its representative to the
Company's Board of Directors, such resignation to be effective immediately upon
Closing.
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2.7 Artal Registration Rights. From the date of the New Stockholders'
Agreement until the Release Date, the Company, Artal and Flowers covenant and
agree (a) not to make any changes or amendments to or with respect to, or effect
a waiver or termination of Artal's rights or benefits under or with respect to,
Annex A of the New Stockholders' Agreement, without having received Bermore's
prior written approval of such change, amendment, waiver or termination, and (b)
to provide Bermore with executed copies of the New Stockholders' Agreement and
all changes, amendments, waivers and terminations relating thereto; provided,
however, that such prior written approval shall not be (a) unreasonably withheld
or delayed by Bermore and (b) required if any such change, amendment, waiver or
termination does not materially and adversely affect Artal's rights, benefits or
obligations thereunder.
2.8 Reports Regarding Monthly Transfers. During the Restricted Period,
Bermore shall deliver in writing by facsimile to Artal, five business days after
the last day of each month, a list of all Monthly Transfers during such month by
Bermore pursuant to Section 4.2(e) and the prices per share paid to Bermore in
respect of such Monthly Transfers. If no Monthly Transfers are made by Bermore
during any such month, Bermore will not be obligated to deliver any such list to
Artal.
2.9 Restrictions on Other Agreements. Bermore shall not grant
any proxy or enter into or agree to be bound by any voting trust or voting
agreement with respect to the Bermore Shares or enter into any stockholder
agreements or arrangements of any kind with any Person with respect to any
Bermore Shares on terms inconsistent with the provisions of this Agreement
(whether or not such agreements are with Persons that are parties to this
Agreement), including but not limited to, agreements or arrangements with
respect to the acquisition or disposition of Bermore Shares in a manner which
is inconsistent with this Agreement.
2.10 IPO. (a) The procedures, further agreements, rights and
obligations of the parties hereto regarding the sale of the Bermore IPO Shares
under the S-1 Registration Statement (including any procedures, further
agreements, rights and obligations applicable after the Closing) shall be
governed by the procedures in Annex A of the Original GFI Agreement applicable
to incidental registrations pursuant to Section 1.2 of such Annex A, except
that, notwithstanding anything to the contrary contained therein or in the
Stockholders' Agreement dated as of January 26, 1996 among the Company, Artal
and Flowers, Artal hereby agrees to use its reasonable best efforts to have
included in the IPO 4,519,090 Warrant Shares and, (i) if less than 4,519,090
Warrant Shares are included in the IPO or (ii) the aggregate number of shares
of Common Stock requested to be sold in the IPO shall be cut back by the
Underwriters, Artal shall, in each case, reduce the number of Artal Shares to
be sold in the IPO to the extent (and only to the extent) necessary to enable
Bermore to sell 4,519,090 Warrant Shares in the IPO.
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(b) If the Underwriters exercise any overallotment option in
accordance with the terms of the Underwriting Agreement, the number of Artal
Shares and Bermore Shares that Artal and Bermore, respectively, will be required
to sell in order to accomodate any such exercise shall be directly proportional
to the number of Artal IPO Shares and Bermore IPO Shares, respectively.
2.11 Compliance with Securities Laws. In connection with the
transactions contemplated by this Agreement, the parties hereto agree to
cooperate with one another in complying with the applicable provisions of the
Securities Act and the Exchange Act, and all other applicable federal and state
securities laws, and each of them agrees to furnish the other, or its counsel,
with such information and to take such actions as may be reasonably requested in
respect of such compliance.
2.12 Consents and Approvals. The parties agree to use their respective
best efforts to obtain the waiver, consent and approval of all other persons
whose waiver, consent or approval is required in order to consummate the
transactions contemplated by this Agreement.
2.13 Artal Investor Joinders. Prior to making any Excluded Artal
Transfer at any time prior to the termination of this Agreement, Artal shall
obtain an Investor Joinder from such transferee, and such transferee, by
execution thereof, (i) shall agree to become and automatically be deemed to be
subject to, and have the benefit of, all of the rights and obligations contained
in this Agreement applicable to Artal and (ii) shall have made on the date
thereof all representations and warranties made on the date hereof by Artal
(modified, if necessary, to reflect the nature of such Person as a corporation,
partnership, other entity or natural person). Promptly thereafter, Artal shall
cause originally executed copies of such Investor Joinder to be delivered to
Bermore, Flowers and the Company and shall notify Bermore, Flowers and the
Company of the number and type of Artal Shares Transferred.
2.14 FIRPTA Certificates. At the Closing, the Company shall deliver to
Bermore a certificate substantially in the form of Annex C-1, and as promptly as
practicable and in any event no more than 30 days thereafter the Company shall
deliver to the Internal Revenue Service a certificate substantially in the form
of Annex C-2.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Artal, Flowers and the Company.
Each of Artal, Flowers and the Company (solely as to itself) hereby represents
and warrants to each of the other parties hereto as follows:
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(a) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has the
requisite power and authority to own, lease and operate its properties and
assets and to conduct its business as now conducted by it. It has all requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery by it of this Agreement and the
performance by it of its obligations hereunder have been duly authorized by all
necessary action. This Agreement has been duly executed and delivered by it and,
assuming the due authorization, execution and delivery thereof by the other
parties hereto, constitutes its valid and legally binding obligation,
enforceable against it in accordance with its terms; and
(b) The execution, delivery and performance of this Agreement
by it will not, with or without the giving of notice or lapse of time, or both,
(i) conflict with its certificate of incorporation or by-laws (or the
corresponding documents of any of its Subsidiaries) or (ii) result in any breach
of any terms or provisions of, or constitute a default under, or conflict with
any material contract, agreement or instrument to which it or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound,
except for such breaches, defaults or conflicts (A) which shall have been cured
or waived prior to the Closing or (B) which, in the aggregate, would not
reasonably be expected to have a material adverse effect on the financial
position, results of operations, assets, liabilities, properties or business of
it and its Subsidiaries, taken as a whole, or (iii) violate any material
provision of law, statute, rule or regulation to which it is subject or any
material order, judgment or decree applicable to it.
(c) There is no suit, action, proceeding, claim or
investigation pending or, to its knowledge, threatened against or affecting it
which, if pursued and/or resulting in a judgment, would have a material adverse
affect on its right to consummate the transactions contemplated hereby.
3.2 Representations and Warranties of Bermore. Bermore hereby
represents and warrants to each of the other parties hereto as follows:
(a) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has the
requisite power and authority to own, lease and operate its properties and
assets and to conduct its business as now conducted by it. It has all requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery by it of this Agreement and the
performance by it of its obligations hereunder have been duly authorized by all
necessary action. This Agreement has been duly executed and delivered by it and,
assuming the due authorization, execution and delivery thereof by the other
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parties hereto, constitutes its valid and legally binding obligation,
enforceable against it in accordance with its terms;
(b) The execution, delivery and performance of this Agreement
by it will not, with or without the giving of notice or lapse of time, or both,
(i) conflict with its certificate of incorporation or by-laws (or the
corresponding documents of any of its Subsidiaries) or (ii) result in any breach
of any terms or provisions of, or constitute a default under, or conflict with
any material contract, agreement or instrument to which it or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound,
except for such breaches, defaults or conflicts (A) which shall have been cured
or waived prior to the Closing and (B) which, in the aggregate, would not
reasonably be expected to have a material adverse effect on the financial
position, results of operations, assets, liabilities, properties or business of
it and its Subsidiaries, taken as a whole, or (iii) violate any material
provision of law, statute, rule or regulation to which it is subject or any
material order, judgment or decree applicable to it; and
(c) There is no suit, action, proceeding, claim or
investigation pending or, to its knowledge, threatened against or affecting it
which, if pursued and/or resulting in a judgment, would have a material adverse
affect on its right to consummate the transactions contemplated hereby.
(d) Upon exercise of the GFI Warrant in the manner
contemplated by Section 2.3, Bermore will own the Bermore IPO Shares and the
Bermore Control Shares free and clear of any liens, claims or encumbrances of
any nature. Except for the rights under the Original GFI Agreement, or as
contemplated by this Agreement, Bermore has not granted any option or right, and
is not a party to any other agreement which requires, or which upon the passage
of time, the payment of money or the occurrence of any other event, may require,
Bermore to transfer any of the Bermore Shares to any other Person other than an
Affiliate of Bermore. When Flowers pays for and acquires the Bermore Control
Shares as contemplated by this Agreement, Flowers will receive them free and
clear of any liens, claims, or encumbrances of other persons, other than liens,
claims or encumbrances resulting from the acts of Flowers. When the Bermore IPO
Shares are delivered in accordance with the instructions of the Underwriters'
and paid for by the Underwriters as contemplated by this Agreement and the
Underwriting Agreement, such shares will be delivered free and clear of any
liens, claims, or encumbrances of other persons, other than liens, claims or
encumbrances resulting from the acts of the Underwriters.
ARTICLE IV
TRANSFER RESTRICTIONS ON REMAINING BERMORE SHARES
4.1 Transfer Restriction. During the Restricted Period,
Bermore agrees, without the prior written consent of Artal,
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except in accordance with Section 4.2 or pursuant to the exercise of any
overallotment options by the Underwriters in respect of the IPO, not to market,
attempt to arrange for or consummate the Transfer of any Bermore Shares (or any
securities convertible into or exchangeable for Bermore Shares). Prior to making
any permitted (whether as result of the exceptions set forth in Section 4.2 or
otherwise) Transfer of Bermore Shares at any time prior to the termination of
this Agreement (other than a Transfer pursuant to Section 4.2(b) or (e)),
Bermore shall obtain an Investor Joinder from such transferee, and such
transferee, by execution thereof, (i) shall agree to become and automatically be
deemed to be subject to, and have the benefit of, all of the rights and
obligations contained in this Agreement applicable to Bermore, (ii) shall have
made on the date thereof all representations and warranties made on the date
hereof by Bermore (modified, if necessary, to reflect the nature of such Person
as a corporation, partnership, other entity or natural person), (iii) shall have
appointed Xxxxxxx Xxxxxxxx or such one Person as Bermore and all of its
permitted transferees (other than Persons to whom Bermore Transfers Bermore
Shares pursuant to Section 4.2(b) or (e)) shall agree upon as its true and
lawful attorney-in-fact for purposes of exercising its rights and obligations
contained in this Agreement and (iv) shall have appointed Bermore, Ltd. or such
two Persons (which may include Bermore) as Bermore, Ltd. (if it remains a party
to the Agreement) and all of its permitted transferees (other than Persons to
whom Bermore Transfers Bermore Shares pursuant to Section 4.2(b) or (e)) shall
agree upon as true and lawful custodians (each a "Custodian" which may act
independently of the other in respect of Bermore Shares which have been
Transfered to it) for all Bermore Shares owned by such transferee and subject to
this Agreement and, simultaneously upon execution of such Investor Joinder,
shall Transfer all such Bermore Shares to the Custodian listed on the Investor
Joinder. Promptly thereafter, Bermore shall cause originally executed copies of
such Investor Joinder to be delivered to Artal, Flowers and the Company and
shall notify Artal, Flowers and the Company of the number and type of Bermore
Shares Transferred.
4.2 Exceptions. The restriction on Transfer contained in Section 4.1
above shall be inapplicable with respect to:
(a) any Transfers of Bermore Shares among Affiliates
of Bermore or members of Bermore's Family Group;
(b) any Transfer of Bermore Shares by Bermore pursuant to the
terms of Section 4.3, 4.4 or 4.5 or pursuant to a registered, underwritten
offering under Article V;
(c) any Transfers of Bermore Shares (A) to the extent of the
grant of a security interest in such Bermore Shares pursuant to a pledge or
similar agreement to secure debt of the transferor (incurred in good faith and
not for purposes of avoiding the transfer restrictions contained in this
Agreement) owing to a bank or other bona fide financial institution;
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provided that such security interest has not yet been exercised by the pledgee,
and (B) upon the exercise by such bank or other bona fide financial institution
of its rights under such pledge or similar agreement to acquire beneficial or
other ownership of the Bermore Shares pledged thereunder;
(d) any Transfers of Bermore Shares by a member of Bermore's
Family Group upon his or her death to his or her estate, provided that the
beneficiaries of the estate are Persons specified in clause (a) of this Section
4.2;
(e) subject to compliance with Section 1.4 of Annex A hereto,
Transfers (in addition to Transfers pursuant to the other provisions of this
Section 4.2) by Bermore which do not in the aggregate exceed 85,987 Bermore
Shares in any one month (any such Transfer during any such month, a "Monthly
Transfer"), it being understood that, to the extent Bermore does not sell an
aggregate of 85,987 Bermore Shares in any such month (for any reason
whatsoever), Bermore shall not in any event, as a result thereof, be entitled to
increase the number of Bermore Shares which it is entitled to sell in any other
month pursuant to this Section 4.2(e); and
provided, that in order to facilitate compliance with federal securities laws
and the provisions of this Agreement, the aggregate number of permitted
transferees under Sections 4.2(a), (c) and (d) shall not exceed 45 Persons at
any time during the term of this Agreement without the consent of Artal, which
consent will not be unreasonably withheld or delayed.
4.3 Tag Along. (a) At any time during the Restricted Period,
at least 15 days prior to making any Transfer of any Artal Shares to either the
Company or Flowers (or, for all purposes of this Section 4.3 and Section 4.4,
any of their respective Affiliates other than Artal), Artal shall deliver a
written notice (the "Tag/Drag Notice") to Bermore, specifying in reasonable
detail the type and number of Artal Shares proposed to be transferred, the
identity of the prospective transferee(s), the terms and conditions of the
Transfer (including without limitation, the price (or the formula for
determining the price) to be paid for each Artal Share and, in the event that
the consideration to be received by Artal in connection with such transaction
includes non-cash consideration, Artal's good faith reasonable estimate of the
cash value of such non-cash consideration), Artal's good faith estimate after
due inquiry of the maximum number of shares of Common Stock that the proposed
transferee would be willing to purchase in connection with such transfer, and
all information reasonably required to make the calculations set forth in this
Section 4.3(a). Bermore may elect to participate in the proposed Transfer by
delivering written notice to Artal within 10 days after delivery of the Tag/Drag
Notice. If Bermore has elected to participate in such Transfer pursuant to the
terms hereof, Bermore shall be entitled to sell in the proposed Transfer, at the
same price (treating debt of
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Artal actually assumed by the Company or Flowers, as the case may be, as a cash
payment to Artal, equal to the amount assumed) and on the same terms and
conditions (provided that such conditions are capable of being fulfilled by
Bermore) as Artal, up to a number of Bermore Shares equal to the product of (i)
the number of Artal Shares which Artal proposes to sell in the proposed Transfer
and (ii) a fraction, (A) the numerator of which is the number of Remaining
Bermore Shares and (B) the denominator of which is the number of Remaining Artal
Shares; provided that the number of Bermore Shares which Bermore is permitted to
sell pursuant to this Section 4.3(a) shall not in any event include any shares
of Common Stock other than Remaining Bermore Shares. It is expressly understood
by the parties hereto that if Artal is selling Common Stock in such Transfer,
Bermore may only participate in such Transfer by selling Common Stock and not
any Common Stock Equivalents and that, to the extent that Bermore wishes to sell
shares of Common Stock underlying any such Common Stock Equivalents, it must
exercise, convert or exchange such Common Stock Equivalents in order to Transfer
such underlying shares of Common Stock. If Bermore elects to participate in such
Transfer, it shall be obligated to pay its pro rata portion of the transaction
costs associated therewith. If the aggregate amount of Bermore Shares which
Bermore elects and is permitted under the foregoing provisions to sell in the
proposed Transfer is, together with the aggregate amount of Artal Shares which
Artal proposes to so sell, more than the total number of shares of Common Stock
that the Company or Flowers, as the case may be, wishes to purchase, then each
of Artal and Bermore shall be entitled to sell to the Company or Flowers, as the
case may be, that number of shares of Common Stock equal to the number of shares
of Common Stock to be so purchased by the Company or Flowers, as the case may
be, from Artal and Bermore, multiplied by a fraction, the numerator of which is
the number of such shares of Common Stock that Artal or Bermore, as the case may
be, elects and is permitted under the foregoing provisions to sell and the
denominator of which is the aggregate number of shares of Common Stock Artal and
Bermore elect to sell and are permitted to sell under the foregoing provisions.
If Bermore has not delivered written notice to Artal that Bermore elects to
participate in a proposed Transfer within the 10-day period provided above for
the delivering of such notice, then Artal shall have the right, for a period of
45 days after the expiration of such 10-day period, to consummate such proposed
Transfer to the Company or Flowers, as the case may be, at the same price and on
the same terms and conditions stated in the related Tag/Drag Notice. If, at the
end of such 45-day period, Artal has not consummated such proposed Transfer to
the Company or Flowers, as the case may be, the terms of this Section 3.3 shall
again be in effect with respect to such proposed Transfer to the Company or
Flowers, as the case may be.
(b) For purposes of Section 4.3(a) and Section 4.5(a), if
Artal has Transferred all or part of its Artal Shares to one or more of its
Subsidiaries or other entities controlled by it (a
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"Securities Holding Company"), a sale or other disposition by Artal (by merger
or otherwise) of an equity or beneficial interest in a Securities Holding
Company to, for purposes of Section 4.3(a), the Company or Flowers, as the case
may be, or, for purposes of Section 4.5(a), any other Person, shall be treated
as follows: (i) if such sale or other disposition is of 50% or more of the
equity or beneficial interest in such Securities Holding Company, then such sale
or other disposition shall be deemed to be a Transfer of all such Artal Shares
directly or indirectly owned or controlled by such Securities Holding Company,
and (ii) if such sale or other disposition is of less than 50% of the equity or
beneficial interest in such Securities Holding Company, then such sale or other
disposition shall be deemed to be a Transfer of a percentage of the number of
Artal Shares directly or indirectly owned or controlled by such Securities
Holding Company equal to the percentage of the equity or beneficial interest in
such Securities Holding Company sold or disposed of in such transaction. In
either such event, if the Securities Holding Company owns assets other than the
Artal Shares, the consideration paid to Artal by the Company or Flowers, as the
case may be, or such other Person, for the Transfer and allocable to the Artal
Shares, in the absence of agreement of Artal and Bermore, shall be determined by
an investment banking firm of national reputation selected by mutual agreement
of the parties hereto, provided, that such investment banking firm shall not
have a material direct or indirect financial interest in or other relationship
with the Company or any of its Subsidiaries or Affiliates.
(c) The exercise or nonexercise of the rights of Bermore in this
Section 4.3 to participate in one or more Transfers by Artal to the Company or
Flowers, as the case may be, shall not adversely affect Bermore's rights to
participate in subsequent Transfers by Artal to the Company or Flowers.
4.4 Drag-Along. (a) In the case that Artal proposes to make a
Transfer of Artal Shares to the Company or Flowers, as the case may be, at any
time after Closing and prior to the Release Date that would trigger Bermore's
tag along rights pursuant to Section 4.3, Artal may elect, by so specifying in
the Tag/Drag Notice, to require Bermore to, and Bermore will, participate in
such transaction on the same terms and conditions as Artal with respect to a
number of Bermore Shares determined as set forth below. Bermore shall be
required to sell in the proposed Transfer, at the same price (treating debt of
Artal actually assumed by the proposed transferee as a cash payment to Artal,
equal to the amount assumed) and on the same terms and conditions as Artal
(provided that such conditions are capable of being fulfilled by Bermore), a
number of Bermore Shares (such number being hereinafter referred to as the "Drag
Along Number") of each type being Transferred by Artal equal to the lesser of
(i) the product of (A) the number of Artal Shares which Artal proposes to sell
in the proposed Transfer and (B) a fraction, (x) the numerator of which is the
number of Remaining Bermore Shares and
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(y) the denominator of which is the number of Remaining Artal Shares, (ii) the
number of such Bermore Shares specified by Artal in the relevant Tag/Drag Notice
and (iii) the number of Remaining Bermore Shares owned by Bermore at the time of
delivery of such Tag/Drag Notice; provided that the number of Bermore Shares
which Bermore is required to sell pursuant to this Section 4.4(a) shall not in
any event include any shares of Common Stock other than Remaining Bermore
Shares. It is expressly understood by the parties hereto that if Artal proposes
to Transfer Common Stock and so elects, Bermore must Transfer a number of shares
of Common Stock equal to the Drag Along Number by selling Common Stock (and not
Common Stock Equivalents) and, if necessary, it must exercise, convert or
exchange such Common Stock Equivalents in order to Transfer such underlying
shares of Common Stock. If Bermore is required to participate in such Transfer,
Artal shall be obligated to pay all the transaction costs associated therewith.
(b) In connection with any proposed transaction described in
Section 4.4(a) above, Bermore agrees (i) to consent to and raise no objections
(other than with respect to its rights under this Section 4.4) to, and to take
all other actions (including, without limitation, voting, or entering into
written consents with respect to, all of its Bermore Shares in favor of such
transaction) reasonably necessary or desirable to cause, the consummation of
such transaction and (ii) to sell, Transfer and deliver its Bermore Shares as
required by the terms of such transaction; provided, however, that,
notwithstanding anything to the contrary contained herein, Bermore will not be
required to register any Bermore Shares under the Securities Act in order to
comply with its obligations under this Section 4.4; and provided further,
however, that, if Bermore has, prior to its receipt of a Tag/Drag Notice,
entered into a binding agreement to Transfer Bermore Shares (so long as such
agreement does not otherwise violate this Agreement), Bermore shall not be
prohibited from consummating such Transfer, notwithstanding anything to the
contrary contained in this Section 4.4.
(c) If the Drag Along Number is less than the number of
Bermore Shares Bermore may sell in the proposed Transfer pursuant to its rights
under Section 4.3, then, notwithstanding the exercise by Artal of its rights
under this Section 4.4, Bermore may elect to sell such additional Bermore Shares
pursuant to its rights under Section 4.3.
4.5 Mandatory Sale Events (a) If, during any of the three
successive 12-month periods commencing on the Lockup Expiration Date, Artal
proposes to Transfer, in the aggregate (other than Excluded Artal Transfers,
Transfers pursuant to Section 4.3 or 4.4 or Transfers pursuant to registered,
underwritten offerings under Article V), a number of Artal Shares that is
greater than the Artal Basket, then Bermore shall mandatorily participate in any
additional Transfers in excess of the Artal Basket by Artal (other than Excluded
Artal Transfers,
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Transfers pursuant to Section 4.3 or 4.4 or Transfers pursuant to registered,
underwritten offerings under Article V) which are consummated during the
remainder of such 12-month period, on the same terms and conditions as Artal
with respect to a number of Bermore Shares determined as set forth below (each
such Transfer a "Mandatory Sale Event", and the aggregate number of Artal Shares
and Bermore Shares proposed to be Transferred pursuant to such Mandatory Sale
Event, the "Mandatory Sale Shares"). As promptly as practicable after Artal has
(i) with respect to a negotiated Transfer to a third party, agreed to Transfer
the applicable Mandatory Sale Shares to such third party, or (ii) with respect
to an open market sale, decided it intends to Transfer the applicable Mandatory
Sale Shares, but in each case in no event less than two business days prior to
the consummation of such Mandatory Sale Event, Artal shall deliver a written
notice to Bermore via facsimile, specifying in reasonable detail the type and
number of Mandatory Sale Shares, the identity of the prospective transferee(s)
(or, if applicable, that the Transfer will be an open market transaction), the
terms and conditions of the Transfer (including without limitation, the price
(or the method of determining the price) to be paid for each Mandatory Sale
Share and, in the event that the consideration to be received by Artal in
connection with such Mandatory Sale Event includes non-cash consideration,
Artal's good faith reasonable estimate of the cash value of such non-cash
consideration) and all information reasonably required to make the calculations
set forth in this Section 4.5(a). Bermore shall be required to sell in
connection with any Mandatory Sale Event, at the same price (treating debt of
Artal actually assumed by the proposed transferee as a cash payment to Artal,
equal to the amount assumed) and on the same terms and conditions as Artal
(provided that such conditions are capable of being fulfilled by Bermore), the
lesser of (i) the number of Remaining Bermore Shares owned by Bermore at the
time of such Mandatory Sale Event and (ii) a number of Bermore Shares equal to
the product of (A) the number of Mandatory Sale Shares and (B) a fraction, (x)
the numerator of which is number of Remaining Bermore Shares and (y) the
denominator of which is the sum of the number of Remaining Bermore Shares and
the number of Remaining Artal Shares; provided that the number of Bermore Shares
which Bermore is required to sell pursuant to this Section 4.5(a) shall not in
any event include any shares of Common Stock other than Remaining Bermore
Shares. It is expressly understood by the parties hereto that if Bermore is
required to Transfer Bermore Shares pursuant to this Section 4.5, Bermore must
Transfer the requisite number of shares of Common Stock (and not Common Stock
Equivalents) and, if necessary, it must exercise, convert or exchange such
Common Stock Equivalents in order to Transfer such underlying shares of Common
Stock. If Bermore is required to participate in such Mandatory Sale Event, it
shall be obligated to pay its pro rata portion of the transaction costs
associated therewith.
(b) In connection with any Mandatory Sale Event, Bermore
agrees (i) to consent to and raise no objections (other
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than with respect to its rights under this Section 4.5) to, and to take all
other actions (including, without limitation, voting, or entering into written
consents with respect to, all of its Bermore Shares in favor of such
transaction) reasonably necessary or desirable to cause, the consummation of
such transaction and (ii) to sell, Transfer and deliver the Mandatory Sale
Shares which are Remaining Bermore Shares as required by the terms of such
Mandatory Sale Event, including, without limitation, delivery of certificates
for such Remaining Bermore Shares (or arrangement of book-entry transfers in
respect of such Remaining Bermore Shares) in order to permit timely settlement
in accordance with the terms of such Mandatory Sale Event; provided, however,
that, notwithstanding anything to the contrary contained herein, Bermore will
not be required to register any Bermore Shares under the Securities Act in order
to comply with its obligations under this Section 4.5; and provided further,
however, that, if Bermore has, prior to its receipt of a Mandatory Sale Notice,
entered into a binding agreement to Transfer Bermore Shares (so long as such
agreement does not otherwise violate this Agreement), Bermore shall not be
prohibited from consummating such Transfer, notwithstanding anything to the
contrary contained in this Section 4.5.
4.6 Prohibited Transfers. Any Transfer of Bermore Shares or
Artal Shares made in violation of this Agreement (including, without limitation,
a Transfer made without obtaining a necessary Investor Joinder) shall be null
and void. The Company shall not permit such Transfer to be recorded on the
Company's books and records and shall not otherwise cooperate in consummating
such Transfer.
ARTICLE V
REGISTRATION RIGHTS
The procedures and further agreements of the parties hereto
set forth in Annex A to this Agreement are incorporated herein by reference.
ARTICLE VI
CONDITIONS
The obligations of each party hereto at Closing are subject to
satisfaction of the following conditions by each of the other parties hereto
(any or all of which may be waived with respect to any party by the other
parties hereto):
6.1 Representations True at Closing. The representations and
warranties of such party contained in this Agreement will be true and
correct in all material respects at the Closing Date with the same
effect as though made on that date, except to the extent such
representations and warranties expressly relate to an earlier date (in
which case such representations and warranties shall be true and
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correct in all material respects on and as of such earlier date), and
such party will have delivered to each of the other parties hereto a
certificate dated that date and signed by the President, a Vice
President or such other authorized agent or attorney-in-fact of such
party to that effect.
6.2 Covenants. Such party will have fulfilled in all material
respects all its obligations under this Agreement required to have been
fulfilled prior to or at the Closing, and will have delivered to each
of the other parties hereto a certificate dated that date and signed by
the President, a Vice President or such other authorized agent or
attorney- in-factof such party to that effect.
6.3 No Injunction, etc. No order will have been entered by any
court or governmental or regulatory authority and be in force which
invalidates this Agreement or restrains the completion of the
transactions which are the subject of this Agreement.
6.4 Consents. All consents or waivers necessary for the
consummation of the transactions contemplated hereby will have been
received on or prior to the Closing Date.
6.5 Effectiveness of S-1 Registration Statement. The S-1
Registration Statement shall have been declared effective by the SEC, and no
stop order suspending effectiveness shall have been issued, and no action, suit,
proceeding or investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and be continuing. The Artal IPO Shares and the
Bermore IPO Shares shall have been registered for issuance under all applicable
Blue Sky laws or shall be exempt from such registration, and no stop order shall
have been issued with respect to the issuance or sale of such securities by any
Blue Sky authority.
6.6 Consummation of IPO. The consummation of the IPO shall
have occurred contemporaneously with the Closing.
ARTICLE VII
MISCELLANEOUS
7.1 Time and Place of Closing. If the IPO is consummated, the
Closing shall be held at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another place or date is agreed to in
writing by the parties hereto.
7.2 Transactions at Closing. At the Closing, each of the
following transactions shall occur:
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(a) The transactions contemplated by Sections 2.1, 2.2, 2.3,
2.4, 2.5 and 2.6, in each case in accordance with such section.
(b) The delivery by each of the parties hereto of the
certificates contemplated by Sections 6.1 and 6.2, in each case in accordance
with such sections.
7.3 Survival of Representations and Warranties. All
representations, warranties, agreements, covenants and obligations made or
undertaken by each party hereto in this Agreement or in any document or
instrument executed and delivered pursuant hereto have been relied upon by the
other parties hereto, shall survive the Closing hereunder, and shall not merge
in the performance of any obligation by any party hereto.
7.4 Termination. (a) This Agreement may be terminated or
abandoned prior to Closing only (i) by the mutual consent of the Company, Artal,
Flowers and Bermore, notwithstanding prior approval by any or all of such
parties, and (ii) will terminate automatically without any further action by the
parties hereto (A) if the Underwriting Agreement has not been (x) executed by
the parties thereto and (y) prior to such execution, consented to by Flowers in
writing, in each case by 11:59 p.m. on the date hereof, or (B) simultaneously
upon the termination or abandonment, if any, of the Underwriting Agreement. In
the event of a termination of this Agreement prior to Closing, (i) each party
shall pay the costs and expenses incurred by it in connection herewith, (ii) no
party (or any of its officers, directors, employees agents or representatives)
shall be liable to any other party for any costs, expenses, damage or loss of
anticipated profits hereunder, (iii) each party shall retain any and all rights
attendant to any breach of any covenant, representation or warranty made
hereunder and (iv) the Original GFI Agreement shall remain in full force and
effect.
(b) Should Closing occur, this Agreement shall not terminate,
shall remain in full force and effect and shall be binding on any party hereto
until the earlier of (i) the Release Date or (ii) the date on which Bermore no
longer owns any Remaining Bermore Shares (except that, notwithstanding any such
termination, provisions contained in Annex A hereof which by their terms are
applicable after the consummation of any offering made pursuant thereto
(including, without limitation, provisions relating to indemnification and
contribution), shall continue to remain in full force and effect as provided
therein in respect of any Remaining Bermore Shares).
7.5 Remedies. (a) Each party hereto shall have all rights and
remedies reserved for such party pursuant to this Agreement and all of the
rights which such parties have under any law or equity. Any Person having any
rights under any provision of this Agreement will be entitled to enforce such
rights specifically, to recover damages by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law or equity.
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(b) The parties hereto agree that if any parties seek to
resolve any dispute arising under this Agreement pursuant to a legal proceeding,
the "prevailing" parties to such proceeding shall be entitled to receive
reasonable fees and expenses (including reasonable attorneys' fees and expenses)
incurred in connection with such proceedings. For purposes of this Section
7.5(b), a party shall be deemed to be a "prevailing" party only if it prevails
on each element of its claim (including the amount and type of damages sought).
If neither party is the prevailing party, the parties agree to request the court
or other decision making body to make a separate determination as to the
allocation of fees and expenses.
(c) It is acknowledged that it will be impossible to measure
in money the damages that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them and that in the event of any such
failure, an aggrieved Person will be irreparably damaged and will not have an
adequate remedy at law. Any such Person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such obligations,
and if any action should be brought in equity to enforce any of the provisions
of this Agreement, none of the parties hereto shall raise the defense that there
is an adequate remedy at law.
7.6 Consent to Amendments. Except as expressly set forth
herein, the provisions of this Agreement may be amended with the prior written
consent of each of Artal and Bermore only, and each of Artal and Bermore can
waive in writing any of its respective rights hereunder without any action by
any other party hereto except that (i) no such amendment or waiver in respect of
the Control Transaction or Section 2.2 hereof may be effected without the prior
written consent of Flowers and (ii) no such amendment or waiver which materially
and adversely affects the Company's obligations in respect of the registration
rights contained in Annex A hereto may be effected without the prior written
consent of the Company.
7.7 Antidilution. The parties hereto agree that all references
herein to the GFI Warrant, amounts of shares of Common Stock and the Warrant
Exercise Price Per Share give effect to a 1-for-10 reverse stock split of the
Common Stock consummated by the Company prior to the date hereof and assume
consummation of a 57.325-for-1 stock split of the Common Stock to be consummated
by the Company immediately prior to Closing. An appropriate and proportionate
adjustment shall be made to all references to amounts of shares of Common Stock
referenced herein for any Recapitalization consummated by the Company after the
date hereof.
7.8 Successors and Assigns. Except as otherwise expressly
provided herein, all provisions contained in this Agreement by or on behalf of
any of the parties hereto will bind and inure to the benefit of the respective
successors and
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permitted transferees of the parties hereto whether so expressed or not. This
Agreement is not intended to create any third party beneficiaries.
7.9 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law. The parties agree that (i) the provisions of this
Agreement shall be severable in the event that any of the provisions hereof are
held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, (ii) such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable and (iii) the remaining provisions shall remain
enforceable to the extent permitted by law.
7.10 Counterparts. This Agreement may be executed in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
7.11 Notices. All notices, demands and other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing or sent by facsimile and shall be deemed to have been given
(i) when personally delivered or sent by facsimile (with proof of receipt at the
number to which notices are required to be sent), (ii) one business day after
being sent by overnight courier (receipt confirmation requested) or (iii) five
business days after being mailed by certified or registered mail (return receipt
requested and postage prepaid) to the recipient. Such notices, demands and other
communications will be sent to each party hereto (and such party's permitted
transferees or assigns, if any) at the address or addresses indicated on the
signature pages hereto, or to such one other address or to the attention of such
one other person as the recipient party (together with its permitted transferees
or assigns, if any) has specified by prior written notice under this Section
7.11 to the sending party.
7.12 Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws, except for matters directly within the purview of the General
Corporation Law of the State of Delaware (the "DGCL") which shall be governed by
the DGCL.
7.13 Further Assurances. Each party hereto shall do
and perform or cause to be done and performed all such further
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acts and things and shall execute and deliver all such other agreements,
certificates, instruments, and documents as any other party hereto reasonably
may request in order to carry out the provisions of this Agreement and the
consummation of the transactions contemplated hereby.
7.14 Jurisdiction; Venue; Process. (a) The parties to this
Agreement agree that jurisdiction and venue in any action brought by any party
hereto pursuant to this Agreement shall properly lie and shall be brought in any
federal or state court located in the State of New York. By execution and
delivery of this Agreement, each party hereto irrevocably submits to the
jurisdiction of such courts for itself or himself and in respect of its or his
property with respect to such action. The parties hereto irrevocably agree that
venue would be proper in such court, and hereby irrevocably waive any objection
that such court is an improper or inconvenient forum for the resolution of such
action.
(b) Artal hereby irrevocably and unconditionally designates
and directs Xx. Xxxxx Xxx Xxxxx, with offices on the date hereof at Northwestern
University School of Law, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as
its agent to receive service of any and all process and documents on its behalf
in any legal action or proceeding related to this Agreement and agrees that
service upon such agent shall constitute valid and effective service upon Artal
and that failure of such agent to give any notice of such service to Artal shall
not affect or impair in any way the validity of such service or of any judgment
rendered in any action or proceeding based thereon.
7.15 Brokers. Each party hereto agrees to indemnify and hold
harmless each of the other parties hereto from and against any fee, claim, loss
or expense arising out of any claim by any investment banker, broker or finder
employed or alleged to have been employed by it.
7.16 Waiver. Any failure on the part of any party hereto to
comply with any of its obligations, agreements or conditions hereunder may be
waived by any other party to whom such compliance is owed. No waiver of any
provision of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver.
7.17 Expenses. All expenses incurred by the parties hereto in
connection with or related to the authorization, preparation and execution of
this Agreement and the closing of the transactions contemplated hereby,
including, without limitation, all fees and expenses of brokers, agents,
representatives and counsel and accountants employed by any such party, shall be
borne solely and entirely by the party which has incurred the same.
Notwithstanding the foregoing, (a) the payment of Artal's expenses shall
governed by Section 14.7 of the
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New Stockholders' Agreement and (b) except for the underwriting discounts in
respect of the Bermore IPO Shares, Bermore's out-of-pocket expenses and the fees
and disbursements of Bermore's counsel, the Company will bear all costs and
expenses in connection with the registration of the Bermore IPO Shares, review
and finalization of underwriting arrangements and all other aspects of the IPO
in accordance with Annex A of the Original GFI Agreement.
7.18 Headings. The section and other headings in this
Agreement are inserted solely as a matter of convenience and for reference, and
are not a part of this Agreement.
7.19 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior
agreements, representations, warranties, or communications, whether oral or
written, among the parties hereto relating to the transactions contemplated
hereby or the subject matter herein, except to the extent set forth in Section
2.5.
7.20 Pronouns. All pronouns used herein shall be deemed to
refer to the masculine, feminine or neuter gender, as the context requires.
7.21 Annexes Incorporated. All Annexes attached hereto are
incorporated herein by reference.
7.22 Time of Essence. Time is of the essence in this
Agreement.
7.23 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
* * * *
25
25
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
Name: KEEBLER FOODS COMPANY
Address for Notices: with copies to:
Keebler Foods Company Winston & Xxxxxx
000 Xxxxx Xxxxxx 00 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 0-000 Xxxxxxxxx No.: 0-000-000-0000
Attn: Chief Executive Officer Attn: Xxxxx Xxxx, Esq.
KEEBLER FOODS COMPANY
By: /s/ Xxxxxx X. X'Xxxxx
-----------------------
Name: Xxxxxx X. X'Xxxxx
Title: Vice President, Secretary
& General Counsel
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
Name: BERMORE, LTD.
Address for with copies
Notices: to:
Xxxxxxxx House Xxxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx x/x X.X. Xxxxxxxxxx, Xxx.
X.X. Xxx XX 0000 999 Xxxxx Way, Suite 200
Xxxxxxxx, Bermuda HM FX Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No: 0-000-000-0000 Facsimile No.: 0-000-000-0000
Attn: Director
and:
Xxxxxxx, Xxxxxxxx & Xxxxx
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
X.X. Xxx XX 0000
Facsimile No.: 0-000-000-0000
Attn: Xxxx Xxxxxxxx, Esq.
BERMORE, LTD.
By: /s/ Xxxxxxx X.X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. X. Xxxxxxxx
Title: Attorney-in-Fact
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
Name: ARTAL LUXEMBOURG S.A.
Address for with copies
Notices: to:
Artal Luxembourg S.A. The Invus Group, Ltd.
00 Xxxxxxxxx Xxxxx 000 X. 00xx Xxxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-00-00-00 Facsimile No.: 0-000-000-0000
Attn: Managing Director Attn: President
and:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 0-000-000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
ARTAL LUXEMBOURG S.A.
By: /s/ Xxxx X. Komler
---------------------------
Name: Xxxx X. Komler
Title: Managing Director
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
Name: FLOWERS INDUSTRIES, INC.
Address for with copies
Notices: to:
Flowers Industries, Inc. Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx 0000 Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000 000 Xxxxxxxxx Xxxxxx, X.X.
Facsimile No.: 0-000-000-0000 Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Facsimile No.: 1-404-581-8330
Attn: Xxxxxx X. Xxxxx, Esq.
FLOWERS INDUSTRIES, INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
----------------------------------
Name: G. Xxxxxxx Xxxxxxxx
Title: Secretary & General Counsel
29
ANNEX A
PROVISIONS REGARDING REGISTRATION RIGHTS
This Annex A is part of and is incorporated into that certain
Stock Purchase and Stockholder's Agreement (the "Agreement"), dated as of
January 28, 1998, among the Company, Artal, Flowers and Bermore. Capitalized
terms used in this Annex A and not otherwise defined shall have the meanings
ascribed to them in the Agreement. Certain capitalized terms used herein are
defined in Section 2.1 of this Annex A.
It is understood that certain incidental registration rights
have been granted to various management investors pursuant to certain management
stockholder's agreements pursuant to the Original Stockholders' Agreement,
including Annex A thereto, and certain demand and incidental registration rights
have been granted to Artal pursuant to Annex A of the New Stockholders'
Agreement and that, subject to restrictions contained in the New Stockholders'
Agreement, additional registration rights may be extended in the future to
holders of securities of the Company.
1.1 Incidental Registrations. If, at any time during (and
solely during) the Restricted Period, (a) Artal has exercised a demand
registration right pursuant to the New Stockholders' Agreement, including Annex
A thereto (as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the Agreement) (an "Artal Demand Right") and has
delivered a demand notice to the Company in connection therewith to cause the
Company to register any Artal Shares under the Securities Act for an
underwritten, public offering (or, in connection with a registered, underwritten
offering of Artal Shares pursuant to an effective Shelf Registration Statement,
has delivered a notice to the Company regarding its intention to effect such an
offering), or (b) the Company proposes to engage in a registration of securities
in which Artal will be entitled to exercise its incidental registration rights
under Section 1.2(a) of Annex A of the New Stockholders' Agreement (as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the Agreement) (an "Artal Piggyback"), the Company will each
such time give prompt written notice to each Custodian of Artal's (or the
Company's, as the case may be) intention to do so and of Bermore's rights under
this Section 1.1, at least (i) with respect to the exercise of an Artal Demand
Right, 15 days prior to the anticipated date of the initial filing of the
related registration statement (or, in the case of a registered, underwritten
offering pursuant to an effective Shelf Registration Statement, 15 days prior to
the formal commencement of such registered, underwritten offering of Artal
Shares) or (ii) with respect to an Artal Piggyback, 30 days prior to the
anticipated date of the initial filing of the related registration statement.
Such notice shall state the number of shares requested to be included in such
offering by Artal (or, if such number is not known by the Company at the time of
delivery of such notice, the Company shall notify Bermore of such number
promptly upon receipt thereof) and shall offer Bermore the opportunity to
include in such registration statement
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(or, in the case of an effective Shelf Registration Statement, include in such
registered, underwritten offering) a number of Bermore Shares equal to the
product of (i) the number of Artal Shares which Artal proposes to sell in the
proposed registered, underwritten offering and (ii) a fraction, (A) the
numerator of which is the number of Remaining Bermore Shares and (B) the
denominator of which is the number of Remaining Artal Shares. Upon the written
request of Bermore delivered to Artal and the Company within (i) with respect to
the exercise an Artal Demand Right, 10 days after the receipt of the Company's
notice (which request shall specify the number of Bermore Shares intended to be
disposed of by Bermore) or (ii) with respect to an Artal Piggyback, 20 days
after the receipt of the Company's notice (which request shall specify the
number of Bermore Shares intended to be disposed of by Bermore), the Company
shall (and Artal shall use its best efforts do cause the Company to do so), if
applicable, use its best efforts to effect the registration under the Securities
Act of all Artal Shares and Bermore Shares of the class then being registered
which the Company has been so requested to register by Artal and Bermore, to
permit the disposition of the Artal Shares and Bermore Shares so to be
registered; provided that, (i) the investment banker or investment bankers and
manager or managers that will manage the offering will be selected (i) with
respect to an Artal Demand Right, by Artal or (ii) with respect to an Artal
Piggyback, by the Company, and Bermore will not have the right to designate or
select any underwriters in connection with such offering, (ii) if Bermore elects
to participate in such registered, underwritten offering, it must sell the
Bermore Shares to be included in such offering to the underwriters on the same
terms and conditions as apply to Artal (except that indemnification obligations
of Bermore shall be limited to those obligations set forth in Section 1.7(b))
and complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements, and (iii) if, at any time after giving
written notice of its intention to register any shares of Common Stock (or, with
respect to an effective Shelf Registration Statement, of its intention to sell
Artal Shares pursuant to a registered, underwritten offering) pursuant to this
Section 1.1 and, prior to the effective date of the related registration
statement (or, in the case of an effective Shelf Registration Statement, prior
to the execution of an underwriting agreement in connection with the applicable
offering of Artal Shares), Artal (in the case of the exercise of an Artal Demand
Right) or the Company (in the case of the exercise of an Artal Piggyback), as
the case may be, shall determine for any reason not to register (or, in the case
of an effective Shelf Registration Statement, not to sell Artal Shares in a
registered, underwritten offering) such shares of Common Stock, Artal or the
Company, as the case may be, shall give written notice to Bermore and,
thereupon, (A) Artal shall be relieved of its obligation to cause the Company to
register (or, in the case of an effective Shelf Registration Statement, sell)
any Bermore Shares in connection with such
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registered, underwritten offering and (B) the Company shall be relieved of its
obligation to register (or, in the case of an effective Shelf Registration
Statement, sell) any Bermore Shares in connection with such registered,
underwritten offering. A registration (or, in the case of an effective Shelf
Registration Statement, a sale pursuant to a registered, underwritten offering)
effected pursuant to this Section 1.1 is referred to herein as an "Incidental
Registration."
1.2 Priority in Incidental Registrations. If the managing
underwriter in connection with a registered, underwritten offering pursuant to
Section 1.1 advises the Company that, in its opinion, the number of securities
which the Company and any other persons entitled to include securities in such
registration (or, in the case of an effective Shelf Registration Statement, the
applicable registered, underwritten offering) propose to include therein exceeds
the largest number of securities which can be sold without having an adverse
effect on such offering, including the price at which such securities can be
sold, the Company will include in such registration (or, in the case of an
effective Shelf Registration Statement, the applicable registered, underwritten
offering) up to such maximum number of securities (i) first, all the securities
the Company initially proposes to sell for the account of (A) Artal, pursuant to
the Company's contractual requirement to do so contained in Annex A of the New
Stockholders' Agreement, and (B) Bermore, pursuant to the Company's contractual
requirement to do so contained herein to register securities owned by Bermore,
and (ii) second, to the extent that the number of securities referred to in
clause (i) is less than the number of securities which the Company has been
advised can be sold in such offering without having the adverse effect referred
to above, all securities owned by any other holder of securities electing and
entitled to register (or, in the case of a registered, underwritten offering
under an effective Shelf Registration Statement, sell) such securities pursuant
to any similar registration rights agreement; provided that if the number of
securities to be included in such registration (or, in the case of an effective
Shelf Registration Statement, the applicable registered, underwritten offering)
by Artal and Bermore pursuant to clause (i) of this Section exceeds the number
which the Company has been advised can be sold in such offering without having
the adverse effect referred to above, the number of securities included in such
registration by each of Artal and Bermore shall be limited to such extent and
shall be allocated pro rata among Artal and Bermore on the basis of the relative
number of securities requested (and, in the case of Bermore, entitled) to be
included in such registration (or, in the case of an effective Shelf
Registration Statement, the applicable registered, underwritten offering) by
each of Artal and Bermore.
1.3 Rule 415. Notwithstanding anything to the contrary
contained herein, if, during the Restricted Period, Artal proposes to cause the
Company to register any Artal Shares under
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Rule 415 of the Securities Act pursuant to a Registration Statement on Form S-3
(a "Shelf Registration Statement"), (i) Artal will each such time give prompt
written notice to Bermore of its intention to do so and of Bermore's rights
under this Section 1.3, at least 15 days prior to the anticipated date of the
initial filing of such Shelf Registration Statement, (ii) Bermore will
mandatorily elect to include all Bermore Shares for registration under such
Shelf Registration Statement and (iii) the Company shall use its best efforts to
effect the registration under the Securities Act of all Artal Shares and Bermore
Shares of the class then being registered which the Company has been so
requested to register by Artal and Bermore, to permit the disposition of the
Artal Shares and Bermore Shares so to be registered. Except for registered,
underwritten offerings in which Bermore elects to participate in accordance with
Section 1.1, Bermore will not be required to, and will not, effect sales of
Bermore Shares (including, without limitation, sales of Bermore Shares pursuant
to Article IV of the Agreement) under such Shelf Registration Statement, and
Bermore will not be entitled to exercise any Incidental Registration or other
similar "piggyback" rights in respect of sales by Artal of Artal Shares under
such Shelf Registration Statement, other than its Incidental Registration rights
under Section 1.1 in connection with registered, underwritten offerings;
provided, that it is understood by the parties hereto that nothing contained in
this Section 1.3 or elsewhere in this Annex A shall limit Bermore's rights to
Transfer Remaining Bermore Shares outside of such Shelf Registration Statement
pursuant to Section 4.2, 4.3, 4.4 or 4.5 of the Agreement (subject to compliance
by Bermore with Section 1.4).
1.4 Hold-Back Agreements. Bermore hereby agrees that, each
time it is given the opportunity to sell Bermore Shares in an Incidental
Registration pursuant to Section 1.1 (whether or not it elects to exercise its
Incidental Registration rights and include any Bermore Shares for sale in the
applicable registered, underwritten offering), if requested (pursuant to a
timely written notice) by the managing Underwriter or Underwriters of such
registered, underwritten offering, not to effect any sale or distribution of any
of the issue being registered or a similar security of the Company or any
securities convertible or exchangeable or exercisable for such securities
(including, without limitation, any sales pursuant to Rule 144 or Section 4.2(e)
of the Agreement and excluding Transfers pursuant to Section 4.2(a), (b) (but
only to the extent Artal is permitted to engage in the underlying Transfer in
connection with the selling restrictions contained in the applicable
underwriting agreement, as the same may be amended, waived or otherwise
modified), (c) or (d) of the Agreement), except as part of such underwritten
offering, during the period (as requested by the managing Underwriter) beginning
not more than 10 days prior to, and ending up to 180 days after, the closing
date of each underwritten offering made pursuant to such Registration Statement
(or such shorter period as the managing Underwriter or Underwriters may
33
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agree), to the extent timely notified in writing by the Company or by the
managing Underwriter or Underwriters; provided, however, that such period shall
in any event commence and terminate on the same date as the selling restrictions
applicable to Artal in connection with such registered, underwritten offering
commence and terminate, after giving effect to any waiver, shortening or other
modification of such period in respect of Artal, whether before or after the
consummation of such underwritten offering; provided further, however, that,
without limiting the exceptions granted to Bermore in this Section 1.4, Bermore
shall be entitled to the benefit of the same exceptions granted to Artal by the
managing Underwriter or Underwriters, whether or not included in the applicable
Underwriting Agreement; and provided further, however, that the Company will
notify Bermore as promptly as practicable if any such underwritten offering has
been terminated, abandoned or indefinitely postponed, and, upon receipt of such
notice from the Company, Bermore no longer will be subject to the Transfer
restrictions contained in this Section 1.4 in respect of (and solely in respect
of) the related underwritten offering. The Company shall, as promptly as
practicable, advise Bermore of the expected closing date of any such
underwritten offering and any subsequent changes with respect thereto.
1.5 Registration Procedures. In connection with the
registration of any Bermore Shares pursuant to an Incidental Registration, the
Company shall effect such registrations to permit the sale of such Bermore
Shares in accordance with the intended method or methods of disposition thereof
determined for both the Artal Shares and the Bermore Shares by Artal (in the
case of an exercise of an Artal Demand Right) or the Company (in the case of the
exercise of an Artal Piggyback), as the case may be (except that, in connection
with a Shelf Registration Statement, the plan of distribution contained in the
applicable Prospectus shall state that Bermore may, as contemplated by the last
proviso to Section 1.3 and Article IV of the Agreement, Transfer Bermore Shares
from time to time pursuant to Rule 144 or in other transactions exempt from or
not subject to the registration requirements of the Securities Act), the Company
shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on Form S-3 (or, if such form is not available for the
sale of such Bermore Shares and the Artal Shares requested to be sold by Artal
in such registered, underwritten offering, such other form as is available for
such sale) thereof in accordance with the intended method of distribution
thereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that before filing any Registration Statement or Prospectus or any amendments or
supplements thereto (not including documents that would be incorporated or
deemed to be incorporated therein by reference), the Company shall afford
Bermore and its counsel an opportunity
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to review copies of all such documents proposed to be filed and give good faith
consideration to any comments from Bermore or its counsel in respect of such
documents.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the effectiveness
period; cause the related Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it with respect to
the disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify Bermore promptly (but in any event within 5
business days), and confirm such notice in writing, (i) when a Registration
Statement, Prospectus or prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules and all documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any Prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time when a Prospectus is
required by the Securities Act to be delivered in connection with sales of
Bermore Shares the representations and warranties of the Company contained in
any agreement (including any underwriting agreement) contemplated by Section
1.5(k) below cease to be true and correct in any material respect, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Bermore Shares for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the
case of such Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
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which they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use its best efforts (including, if necessary, by the
filing of any amendments or supplements to the Registration Statement or the
Prospectus) to prevent the issuance of any order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
a Registration Statement or any of the Bermore Shares for sale in any
jurisdiction, and, if any such order is issued, to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If requested by the managing or sole Underwriter in
connection with such underwritten offering, (i) promptly incorporate in a
Registration Statement, Prospectus, prospectus supplement or post-effective
amendment such information as the managing or sole Underwriter reasonably
requests to be included therein to comply with applicable law, (ii) make all
required filings of such Registration Statement, Prospectus, prospectus
supplement or post-effective amendment as soon as practicable after the Company
has received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments
to such Registration Statement; provided, however, that the Company shall not be
required to take any actions under this Section 1.5(e) that are not, in the
opinion of counsel for the Company, in compliance with applicable law.
(f) Furnish to Bermore and its counsel, if Bermore so
requests, and to each managing Underwriter, without charge, one conformed copy
of the Registration Statement or Statements and each post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to Bermore, its counsel and the Underwriters,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of prospectus) and each amendment or supplement thereto as such Persons may
reasonably request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by Bermore in connection
with the offering and sale of the Bermore Shares covered by such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Bermore Shares, to use its
best efforts to register or qualify, and cooperate with Bermore, the
Underwriters or sales agents and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Bermore Shares for offer and sale under the securities
or "blue sky" laws of such jurisdictions within the United States as
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Bermore or the managing Underwriters or sales agents reasonably request in
writing; use its best efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period during which the related
Registration Statement is required to be kept effective; and use its best
efforts to do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Bermore Shares covered by the
applicable Registration Statement; provided, however, that the Company will not
be required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified or (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with Bermore and the managing or sole
Underwriters to facilitate the timely preparation and delivery of certificates
representing Bermore Shares to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such Bermore Shares to be in such
denominations and registered in such names as the managing or sole Underwriter
or Bermore may reasonably request at least two business days prior to any sale
of Bermore Shares.
(j) Upon the occurrence of any event contemplated by clause
(v) or (vi) of Section 1.5(c) above, as promptly as practicable after and in any
event within ten business days of the Company's having become aware of such
event, prepare a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any such document or
other required document so that, as thereafter delivered to the purchasers of
the Bermore Shares being sold thereunder, such Prospectus will not contain 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, in light of the
circumstances under which they were made, not misleading, and so that such
Registration Statement will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(k) Enter into an underwriting agreement in form, scope and
substance as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing or sole Underwriter in order
to expedite or facilitate the registration or the disposition of the applicable
Artal Shares and such Bermore Shares, and in such connection, (i) make such
representations and warranties to the Underwriters, with respect to, among other
things, the business of the Company and its subsidiaries, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and scope as
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are customarily made by issuers to Underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions shall be reasonably
satisfactory (in form, scope and substance) to the managing or sole
Underwriters), addressed to the Underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the Underwriters; (iii) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of the
Underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings; (iv) cause the Company's management to be made available
for, and assist in, the marketing and disposition of the applicable Artal Shares
and such Bermore Shares in the manner and to the extent reasonably requested by
the Underwriters, including, without limitation, participation by management in
customary road shows, investor conferences and other similar presentations; and
(v) enter into an underwriting agreement which contains indemnification
provisions and procedures no less favorable than those set forth in Section 1.7
hereof with respect to all parties to be indemnified pursuant to said Section
and with respect to the Underwriters and each Person, if any, who controls such
Underwriters (within the meaning of either Section 15 or the Securities Act or
Section 20 of the Exchange Act) and any other Persons customarily covered by an
indemnity of underwriters. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(l) Use its best efforts to cause the Bermore Shares covered
by a Registration Statement to be rated with the appropriate rating agencies, if
applicable, if so requested for the applicable Artal Shares by Artal or the
managing or sole Underwriter.
(m) Use its best efforts to cause all Bermore Shares covered
by such Registration Statement to be (i) listed on each securities exchange on
which securities issued by the Company are then listed, or (ii) authorized to be
quoted on the NASDAQ or the National Market System of the NASDAQ if the
securities so qualify, in each case, if requested for the applicable Artal
Shares by Artal or the managing or sole Underwriter.
(n) Make available for inspection by a representative of
Bermore, any Underwriter participating in any such disposition of Bermore
Shares, any accountant or counsel retained by Bermore, the Underwriters and any
counsel to the Underwriters (collectively, the "Inspectors"), at the offices
where normally
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kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company and
its subsidiaries to supply all information, in each case reasonably requested by
any such Inspector in connection with such Registration Statement; provided,
however, that any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information, shall
be kept confidential by such Inspector unless (i) disclosure of such information
is required by court or administrative order, (ii) disclosure of such
information, in the opinion of counsel to such Inspector, is necessary to avoid
or correct a misstatement or omission of a material fact in the Registration
Statement, Prospectus or any supplement or post-effective amendment thereto or
disclosure is otherwise required by law, or (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by such Inspector; without limiting the foregoing, no such
information shall be used by such Inspector as the basis for any market
transactions in securities of the Company or its subsidiaries in violation of
law.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) commencing at the end of
any fiscal quarter in which Bermore Shares are sold to Underwriters in a
registered, underwritten offering.
The Company may require Bermore to furnish to the Company such
information regarding Bermore and the distribution of such Bermore Shares as the
Company may, from time to time, reasonably request in writing, provided that
such information shall be used only in connection with such registration. The
Company may exclude Bermore Shares from such registration if Bermore
unreasonably fails to furnish such information as promptly as practicable after
receiving such request.
Bermore agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (ii), (iv)
or (v) of Section 1.5(c), Bermore will forthwith discontinue disposition of such
Bermore Shares covered by such Registration Statement or Prospectus until
Bermore's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 1.5(j), or, if earlier, until it is advised in writing
(the "Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any supplements or amendments thereto. In
the event the Company shall give any such notice at any time during the
effectiveness period of a Registration Statement for registration of an offering
on a continuous basis under Rule 415, the
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effectiveness period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when Bermore shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 1.5(j) or (y) the Advice.
1.6 Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registration Statement is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the National Association of Securities Dealers, Inc. in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or "blue sky" laws (including, without limitation, fees and
disbursements of counsel for the Underwriters or counsel for the Company, in
connection with "blue sky" qualifications of the Bermore Shares and
determination of the eligibility of the Bermore Shares for investment under the
laws of such jurisdictions as provided in Section 1.5(h), in the case of the
Bermore Shares, (ii) printing expenses (including, without limitation, expenses
of printing certificates for Bermore Shares in a form eligible for deposit with
The Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested for the applicable Artal Shares by the managing or
sole Underwriter or by Artal), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 1.5(k) (including, without limitation, the expenses of any special audit
and "cold comfort" letters required by or incident to such performance), (vi)
rating agency fees, (vii) Securities Act liability insurance, if the Company so
desires such insurance, (viii) the expense of any annual audit and (ix) the fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange.
(b) Without limiting Section 1.6(a), in connection with any
Registration Statement hereunder, Bermore shall bear no fees and expenses of any
kind other than the discounts, commissions, or fees of Underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of Bermore Shares and the fees and disbursements of counsel
chosen by Bermore, if any, and actual out-of-pocket expenses incurred by Bermore
in connection with the related Registration Statement.
1.7 Indemnification, Contribution.
(a) Indemnification by the Company. The Company shall
indemnify and hold harmless, to the full extent permitted by law, Bermore, its
officers, directors and agents and employees, each
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Person who controls Bermore (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act), the officers, directors, agents and
employees of each such controlling person and any financial or investment
adviser or other representatives thereto (each, an "Indemnified Party"), from
and against any and all losses, claims, damages, liabilities, actions or
proceedings (whether commenced or threatened), reasonable costs (including,
without limitation, reasonable costs of preparation and reasonable attorneys'
fees and expenses) and reasonable expenses (including reasonable expenses of
investigation) (collectively, "Losses"), as incurred, arising out of or based
upon (i) any untrue or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or form of prospectus or in any amendment
or supplements thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or any amendment or supplement thereto or any
preliminary prospectus, in light of the circumstances under which they were
made) not misleading, except to the extent that the same arise out of or are
based upon information furnished in writing to the Company by such Indemnified
Party or Bermore expressly for use therein, or (ii) any violation by the Company
of any federal, state or common law rule or regulation applicable to the Company
and relating to action required of or inaction by the Company in connection with
any such registration. Such indemnity and reimbursement of costs and expenses
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Indemnified Party.
(b) Indemnification by Bermore. In connection with any
Registration Statement in which Bermore is participating, an authorized officer
of Bermore shall furnish to the Company in writing such information as the
Company reasonably requests for use in connection with any Registration
Statement or Prospectus and Bermore shall indemnify, to the full extent
permitted by law, the Company and its respective directors, officers, agents and
employees, each Person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, from and against all
Losses arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus, or form of
prospectus, or arising out of or based upon any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any Prospectus or form of
prospectus, in light of the circumstances under which they were made), to the
extent, but only to the extent, that such untrue or alleged untrue statement is
contained in, or such omission or alleged omission is required to be contained
in, any information so furnished in writing by Bermore to the Company expressly
for use in such Registration Statement or Prospectus and that such
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13
statement or omission was relied upon by the Company in preparation of such
Registration Statement, Prospectus or form of prospectus; provided, however,
that Bermore shall not be liable in any such case to the extent that Bermore has
furnished in writing to the Company within a reasonable period of time prior to
the filing of any such Registration Statement or Prospectus or amendment or
supplement thereto information expressly for use in such Registration Statement
or Prospectus or any amendment or supplement thereto which corrected or made not
misleading, information previously furnished to the Company, and the Company
failed to include such information therein. In no event shall the liability of
Bermore hereunder be greater in amount than the dollar amount of the proceeds
(net of payment of all expenses) received by Bermore upon the sale of the
Bermore Shares giving rise to such indemnification obligation. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified party.
(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party or parties from which
such indemnity is sought (the "indemnifying parties") of the commencement of any
action, suit, proceeding or investigation or written threat thereof (a
"Proceeding") with respect to which such indemnified party seeks indemnification
or contribution pursuant hereto; provided, however, that the failure to so
notify the indemnifying parties shall not relieve the indemnifying parties from
any obligation or liability except to the extent that the indemnifying parties
have been prejudiced by such failure. The indemnifying parties shall have the
right, exercisable by giving written notice to an indemnified party promptly
after the receipt of written notice from such indemnified party of such
Proceeding, to assume, at the indemnifying parties' expense, the defense of any
such Proceeding, with counsel reasonably satisfactory to such indemnified party;
provided, however, that an indemnified party or parties (if more than one such
indemnified party is named in any Proceeding) shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless: (1) the indemnifying parties agree to
pay such fees and expenses; (2) the indemnifying parties fail promptly to assume
the defense of such Proceeding or fail to employ counsel reasonably satisfactory
to such indemnified party or parties; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such indemnified party
or parties and the indemnifying parties or an affiliate of the indemnifying
parties or such indemnified parties, and there may be one or more defenses
available to such indemnified party or parties that are different from or
additional to those available to the indemnifying parties, in which case, if
such indemnified party or parties notifies the indemnifying parties in writing
that it elects to employ separate counsel at the expense of the indemnifying
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14
parties, the indemnifying parties shall not have the right to assume the defense
thereof and such counsel shall be at the expense of the indemnifying parties, it
being understood, however, that, unless there exists a conflict among
indemnified parties, the indemnifying parties shall not, in connection with any
one such Proceeding but substantially similar or related Proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such indemnified party
or parties. Whether or not such defense is assumed by the indemnifying parties,
such indemnifying parties or indemnified party or parties will not be subject to
any liability for any settlement made without its or their consent (but such
consent will not be unreasonably withheld or delayed). The indemnifying parties
shall not consent to entry of any judgment or enter into any settlement (i)
which provides for other than monetary damages without the consent of the
indemnified party or parties (which consent shall not be unreasonably withheld
or delayed) or (ii) that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party or parties of a
release, in form and substance satisfactory to the indemnified party or parties,
from all liability in respect of such Proceeding for which such indemnified
party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 1.7 is unavailable to an indemnified party or is insufficient to hold
such indemnified party harmless for any Losses in respect of which this Section
1.7 would otherwise apply by its terms, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the amount paid or payable by such indemnified party
as a result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party, on the one hand,
and indemnified party, on the other hand, shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been taken by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent such
party would have been indemnified for such expenses if the indemnification
provided for in Section 1.7(a) or 1.7(b) was available to such party.
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The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 1.7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section 1.7(d), Bermore, in its
capacity as an indemnifying party, shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by Bermore
exceeds the amount of any damages that Bermore has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
1.8 Rules 144 and 144A. The Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations promulgated thereunder (or, if the Company is not required
to file such reports, it will, upon the request of Bermore, make publicly
available other information so long as such information is necessary to permit
sales under Rules 144 and 144A), and will take such further action as Bermore
may reasonably request, all to the extent required from time to time to enable
Bermore to sell Bermore Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A. Upon the
request of Bermore, the Company shall deliver to Bermore a written statement as
to whether it has complied with such requirements.
1.9 Suspension; Postponement. Notwithstanding anything to the
contrary contained herein, the provisions regarding the Company's right to
suspend or postpone any Demand Registration Statement (as such term is defined
in Annex A of the New Stockholders' Agreement) or the sale of securities
thereunder contained in Section 1.1(g) of such Annex A shall be binding upon
Bermore, if and only if Bermore is selling Bermore Shares under such Demand
Registration Statement and then only with respect to the Bermore Shares being
sold therein, as and to the same extent such Section 1.1(g) is binding upon
Artal, and shall be deemed to be incorporated by reference herein.
1.10 Additional Registration Rights. The Company shall not
grant any registration rights after the date hereof (i) that are superior to the
rights granted to Artal under the New Stockholders' Agreement (including,
without limitation, Artal's piggyback registration rights under the New
Stockholders' Agreement) or (ii) which would give another party the right to
include shares of Common Stock in any Demand Registration Statement which is
being filed pursuant to the New Stockholders' Agreement (except where such right
to include shares in a Demand Registration Statement is subordinate to the right
of Artal and its Assignees (as such term is defined in the
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New Stockholders' Agreement) to include shares in such Demand Registration
Statement with respect to prioritization in the event of an Underwriter cutback)
or (iii) which would give any party demand registration rights exercisable at
any time prior to the expiration of Artal's demand registration rights under the
New Stockholders' Agreement or (iv) which are superior to the piggyback
registration rights granted to Bermore pursuant to this Agreement.
1.11 Exchange Act Reports. The Company will, to the extent
reasonably requested by Bermore, provide information to Bermore and otherwise
assist Bermore in connection with all filings with the SEC or the New York Stock
Exchange required to be made by Bermore or its Affiliates in respect of the
Company, including, without limitation, filings on Schedule 13D or 13G under the
Exchange Act, with the understanding that the ultimate responsibility for making
such filings and for the accuracy of such filings remains with Bermore and its
Affiliates.
2.1 Definitions. Capitalized terms used in this Annex A shall
have the meanings set forth below:
"Advice" shall have the meaning specified in Section 1.5.
"Artal Demand Right" shall have the meaning specified
in Section 1.1.
"Artal Piggyback" shall have the meaning specified in
Section 1.1.
"Indemnified Party" shall have the meaning specified in
Section 1.7(a).
"Inspectors" shall have the meaning specified in
Section 1.5(n).
"Losses" shall have the meaning specified in Section 1.7(a).
"NASDAQ" means the National Association of Securities
Dealers Automated Quotation System.
"Proceeding" shall have the meaning specified in
Section 1.7(c).
"Prospectus" means the prospectus included in the Registration
Statement, including any form of prospectus or any preliminary prospectus, as
amended or supplemented by any prospectus supplement and by all other amendments
or supplements to such prospectus, including all post-effective amendments and
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17
all material, if any, incorporated by reference or deemed to be incorporated by
reference into such prospectus.
"Registration Statement" means any registration statement of
the Company under which any of the Registrable Securities are included therein
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, all registration statements filed
pursuant to Rule 462(b) under the Securities Act and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 415" means Rule 415 promulgated by the SEC under the
Securities Act as such rule may be amended from time to time, or any similar
rule then in force.
"Underwriter" has the meaning set forth in Section 2(11) of
the Securities Act.
46
ANNEX B
INVESTOR JOINDER
By execution of this Investor Joinder, the undersigned agrees
to become a party to that certain Stock Purchase and Stockholder's Agreement,
dated as of January 28, 1998 (the "Agreement"), among Keebler Foods Company (the
"Company") and certain stockholders of the Company, which stockholders included
on such date Bermore, Ltd., Artal Luxembourg S.A. and Flowers Industries, Inc.
By execution of this Investor Joinder, the undersigned shall have all rights,
and shall observe all the obligations, applicable to [fill in name of
transferor] (except as otherwise set forth in the Agreement), and to have made
on the date hereof all representations and warranties made by such Investor
Stockholder, modified, if necessary, to reflect the nature of the undersigned as
a corporation, partnership, other entity or natural person.
[If Completed By A Permitted Transferee of Bermore] [The undersigned hereby (i)
appoints Xxxxxxx Xxxxxxxx or such one Person as Bermore, Ltd. (if it remains a
party to the Agreement) and all of its permitted transferees shall agree upon,
as the undersigned's true and lawful attorney-in-fact for purposes of exercising
the undersigned's rights and obligations under the Agreement (the "Attorney"),
(ii) appoints Bermore, Ltd. or such two Persons (which may include Bermore,
Ltd.) as Bermore, Ltd. (if it remains a party to the Agreement) and all of its
permitted transferees shall agree upon, as the undersigned's true and lawful
custodians (each a "Custodian" which may act independently of the other in
respect of shares which have been transferred to it) in respect of the shares of
common stock, par value $.01, of the Company transferred to the undersigned on
the date hereof and (iii) simultaneously upon execution hereof shall deposit
such shares with the Custodian listed below and instruct each Custodian to take
all actions in respect of such shares as may at any time or from time to time be
requested by the Attorney.]
[Custodian to whom shares transferred: _____________]
Name:_________________________
Address for with copies
Notices: to:
______________________________ _____________________________
______________________________ _____________________________
______________________________ _____________________________
______________________________ _____________________________
______________________________ _____________________________
47
If an individual, are you presently married or separated?
yes _____ no _____
(If yes, you must also have your spouse execute a spousal consent in the form
attached hereto.)
Signature:___________________
Date:___________________
48
CONSENT AND AGREEMENT OF SPOUSE
I, _________________________________, am the spouse of
____________________, one of the stockholders of Keebler Foods Company, a
Delaware corporation (the "Company"). I acknowledge that my spouse is a party to
that certain Stock Purchase and Stockholder's Agreement, dated as of January 28,
1998, among the Company and certain stockholders of the Company, which
stockholders included on such date Bermore, Ltd., Artal Luxembourg S.A. and
Flowers Industries, Inc. (the "Agreement"), and that I have read the Agreement.
I consent to, agree to, approve and ratify each and every one of the terms and
provisions of the Agreement, and I further agree to provide all notices and
information required of me in the time and manner set forth in the Agreement.
Executed this ____ day of __________, 199_.
_________________________________
(Signature of Consenting Spouse)
49
ANNEX C-1
FIRPTA Certificate
The undersigned hereby certifies to Bermore, Ltd. as to the
status of Keebler Foods Company (the "Company"), and to the status of the stock
of the Company, under the Foreign Investment in Real Property Tax Act of 1980.
Pursuant to Sections 1.1445-2(c)(3) and 1.897.2(h) of the Treasury Regulations,
the undersigned hereby certifies on behalf of the Company:
1. This certificate is given under Treasury Regulations
Sections 1.1445-2(c)(3)(i) and 1.897-2(h);
2. The Company is not, and has not been during the five-year
period ending the date hereof, a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), and no stock of the Company is a United States real
property interest within the meaning of Section 897(c)(1) of the Code;
3. The Company's U.S. employer identification number is
00-0000000;
4. The office address of the Company is: 000 Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000;
5. The office address of Bermore, Ltd. is: Xxxxxxxx House, 00
Xxxxxx Xxxxxx, X.X. Xxx XX 0000, Xxxxxxxx, Bermuda HMFX; and
6. This certificate and any applicable supplemental statements
shall be submitted to the Internal Revenue Service pursuant to Treasury
Regulation Section 1.897-2(h).
Each Company understands that this certification may be
disclosed to the Internal Revenue Service by Bermore, Ltd. and that any false
statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury the officer executing this
certificate on behalf of the Company hereby declares that he has examined this
certification and to the best of his knowledge and belief it is true, correct
and complete, and the undersigned further declares he has authority to sign this
document on behalf of the Company.
KEEBLER FOODS COMPANY,
by____________________________
Name:
Title:
Dated: February 3, 1998
50
ANNEX C-2
Notice to Internal Revenue Service Pursuant
to Reg. Section 1.897-2(H)
The undersigned hereby provides notice to the IRS as to its
certification to Bermore, Ltd. of the status of the stock of Keebler Foods
Company (the "Company"), under the Foreign Investment in Real Property Tax Act
of 1980. Pursuant to Sections 1.1445-2(c)(3) and 1.897.2(h) of the Treasury
Regulations, the undersigned hereby certifies on behalf of the Company:
1. This certificate is given under Treasury Regulations
Sections 1.1445-2(c)(3)(i) and 1.897-2(h).
2. The Company is not, and has not been during the five-year
period ending the date hereof, a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Internal Revenue Code of 1986, as
amended (the "Code"), and no stock of the Company is a United States real
property interest within the meaning of Section 897(c)(1) of the Code;
3. The Company's U.S. employer identification number is
00-0000000;
4. The office address of the Company is: 000 Xxxxx Xxxxxx,
Xxxxxxxx, XX 00000; and
5. The office address of Bermore, Ltd. is: Xxxxxxxx House, 00
Xxxxxx Xxxxxx, X.X. Xxx XX 0000, Xxxxxxxx, Bermuda HMFX.
Under penalties of perjury the officer executing this
certificate on behalf of the Company hereby declares that he has examined this
certification and to the best of his knowledge and belief it is true, correct
and complete, and the undersigned further declares he has authority to sign this
document on behalf of the Company.
KEEBLER FOODS COMPANY,
by______________________________
Name:
Title:
Dated: February 3, 1998
Attachment: FIRPTA Certification to Bermore, Ltd.
