EXHIBIT 10.11
STOCKHOLDERS' AGREEMENT
Dated as of
September 29, 1999
Among
XXXXXXXXXXXXXX.XXX, INC.,
WEIGHT WATCHERS INTERNATIONAL, INC.,
ARTAL LUXEMBOURG S.A.
and
X.X. XXXXX COMPANY
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS;
REPRESENTATIONS AND WARRANTIES..............................................1
1.1 Definitions......................................................1
1.2 Representations and Warranties of the Company....................3
1.3 Representations and Warranties of WWI............................3
1.4 Representations and Warranties of Heinz..........................4
1.5 Representations and Warranties of Artal..........................4
ARTICLE II
COVENANTS...................................................................5
2.1 Transfers of Common Stock........................................5
2.2 [Intentionally Omitted]..........................................6
2.3 Tag Along........................................................6
2.4 Drag Along.......................................................8
2.5 Certain Transfers by Artal.......................................9
ARTICLE III
REGISTRATION RIGHTS..........................................................9
3.1 Registration Rights...............................................9
ARTICLE IV
LEGENDS......................................................................9
4.1 Legend............................................................9
ARTICLE V
MISCELLANEOUS...............................................................10
5.1 Termination......................................................10
5.2 Remedies.........................................................10
5.3 Consent to Amendments............................................11
5.4 Successors and Assigns...........................................11
5.5 Severability.....................................................11
5.6 Counterparts.....................................................11
5.7 Notices..........................................................11
5.8 Governing Law....................................................12
5.9 Further Assurances...............................................12
5.10 Jurisdiction; Venue; Process.....................................12
5.11 Mutual Waiver of Jury Trial......................................12
-i-
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of
September 29, 1999, among XXXXXXXXXXXXXX.XXX, INC., a Delaware Corporation (the
"Company"), WEIGHT WATCHERS INTERNATIONAL, INC., a Virginia corporation ("WWI"),
ARTAL LUXEMBOURG S.A., a Luxembourg corporation ("Artal"), and X.X. XXXXX
COMPANY, a Pennsylvania corporation ("Heinz" and, together with WWI, the "HW
Investors").
W I T N E S S E T H :
WHEREAS, pursuant to a Subscription Agreement, dated as of the date
hereof (the "Subscription Agreement"), among the Company, WWI, Heinz and Artal,
each of WWI, Heinz and Artal has subscribed for shares of common stock of the
Company, $0.01 par value per share (the "Common Stock").
NOW, THEREFORE, in connection with the foregoing subscription and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS;
REPRESENTATIONS AND WARRANTIES
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.
"Articles of Incorporation" means the Articles of Incorporation of
the Company as in effect on the date hereof, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"By-Laws" means the By-Laws of the Company as in effect on the date
hereof, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Closing Date" means September 29, 1999.
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"Corporate Group" means, with respect to any Person, (i) such Person
together with its direct and indirect wholly owned subsidiaries and any entity,
directly or indirectly through wholly owned subsidiaries, wholly owning such
Person or (ii) if permitted by each of the agreements governing material debt of
such Person, such Person together with its Affiliates.
"Drag Along Number" shall have the meaning specified in Section 2.4.
"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 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.
"Investor Joinder" means a joinder agreement, substantially in the
form of Exhibit 2.1(a) hereto, by which a Person becomes an Investor Stockholder
after the date hereof.
"Investor Stockholders" means, collectively, WWI, Xxxxx, Xxxxx and
any Person who hereafter becomes an Investor Stockholder pursuant to an Investor
Joinder under this Agreement.
"Permitted Transferee" shall mean those Persons to whom Transfers
are permitted pursuant to clauses (i), (ii) and (iv) of Section 2.1(b).
"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.
"Public Offering" means a public offering of Common Stock pursuant
to a registration statement declared effective under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, WWI, Artal and Heinz.
"Release Date" shall have the meaning specified in Section 2.1.
"Sale Notice" shall have the meaning specified in Section 2.3.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Holding Company" shall have the meaning specified in
Section 2.3.
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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.
"Transfer" shall be construed broadly and shall include any transfer
by way of issuance, sale, assignment, hypothecation, disposition, participation,
pledge, gift, bequeath, intestate transfer, distribution, liquidation, merger or
consolidation.
"Transferor Group" shall have the meaning specified in Section 2.4.
1.2 Representations and Warranties of the Company. The Company
represents and warrants to each of the Investor Stockholders as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by the Company of
this Agreement and the performance by it of its obligations hereunder have been
duly authorized by all necessary corporate action of the Company. This Agreement
has been duly executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by WWI, Artal and Heinz,
constitutes the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms; and
(b) The execution, delivery and performance by the Company of this
Agreement will not, with or without the giving of notice or lapse of time, or
both, (i) conflict with the Articles of Incorporation or By-Laws of the Company,
(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
the Company is a party or by which the Company is bound, except for such
breaches, defaults or conflicts which, individually or in the aggregate, would
not be likely to have a material adverse effect on the financial condition,
results of operations or business of the Company, 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.
1.3 Representations and Warranties of WWI. WWI represents and
warrants to the Company and each of the Investor Stockholders as follows:
(a) WWI is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia and has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by WWI of this
Agreement and the performance by it of its obligations hereunder have been duly
authorized by all necessary corporate action of WWI. This Agreement has been
duly executed and delivered by WWI and, assuming the due authorization,
execution and delivery thereof by the Company, Artal and Heinz, constitutes the
valid and legally binding obligation of WWI, enforceable against WWI in
accordance with its terms; and
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(b) The execution, delivery and performance by WWI of this Agreement
will not, with or without the giving of notice or lapse of time, or both, (i)
conflict with the Articles of Incorporation or By-Laws of WWI (or the
corresponding documents of any of its Subsidiaries), (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 WWI or any of its
Subsidiaries is a party or by which WWI or any of its Subsidiaries is bound,
except for such breaches, defaults or conflicts which, individually or in the
aggregate, would not be likely to have a material adverse effect on the
financial condition, results of operations or business of WWI 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.
1.4 Representations and Warranties of Heinz. Heinz hereby represents
and warrants to the Company and each of the other Investor Stockholders as
follows:
(a) Heinz is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by Heinz of this
Agreement and the performance by it of its obligations hereunder have been duly
authorized by all necessary corporate action of Heinz. This Agreement has been
duly executed and delivered by Heinz and, assuming the due authorization,
execution and delivery thereof by Artal, WWI and the Company, constitutes the
valid and legally binding obligation of Heinz, enforceable against Heinz in
accordance with its terms; and
(b) The execution, delivery and performance of this Agreement by
Heinz will not, with or without the giving of notice or lapse of time, or both,
(i) conflict with the articles of incorporation or by-laws of Heinz 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
Heinz is a party or by which Heinz is bound, except for such breaches, defaults
or conflicts which, individually or in the aggregate, would not be likely to
have a material adverse effect on the financial position, results of operations
or business of Heinz, 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.
1.5 Representations and Warranties of Artal. Artal hereby represents
and warrants to the Company and each other Investor Stockholder as follows:
(a) Artal is a corporation duly organized, validly existing and in
good standing under the laws of Luxembourg and has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by Artal of this Agreement and the
performance by it of its obligations hereunder have been duly authorized by all
necessary corporate action of Artal. This Agreement has been duly executed and
delivered by Artal and, assuming the due authorization, execution and delivery
thereof by the Company, WWI and Heinz, constitutes the valid and legally binding
obligation of Artal, enforceable against Artal in accordance with its terms; and
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(b) The execution, delivery and performance of this Agreement by
Artal will not, with or without the giving of notice or lapse of time, or both,
(i) conflict with the certificate of incorporation or by-laws or similar
constitutive documents of Artal 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 Artal is a party or by which Artal is
bound, except for such breaches, defaults or conflicts which, individually or in
the aggregate, would not be likely to have a material adverse effect on the
financial position, results of operations or business of Artal 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 Artal.
ARTICLE II
COVENANTS
2.1 Transfers of Common Stock.
(a) Except as permitted pursuant to Section 2.1(b) or with the prior
written consent of Artal, a HW Investor shall not Transfer any shares of Common
Stock until the earlier to occur of (i) the fifth anniversary of the Closing
Date and (ii) the date of completion of the initial Public Offering (the
"Release Date"). Prior to making any permitted (whether as result of the
exceptions set forth in Section 2.1(b) or otherwise) Transfer of shares of
Common Stock to any Person at any time prior to the termination of this
Agreement (other than a Transfer pursuant to a Public Offering, a Transfer
(provided such HW Investor promptly notifies the Company and the other Investor
Stockholders of such Transfer and the number of shares of Common Stock
Transferred) after the initial Public Offering under Rule 144 under the
Securities Act (a "Rule 144 Sale") or a Transfer pursuant to Sections
2.1(b)(iii)), such HW Investor shall obtain an Investor Joinder from such
transferee, and such transferee shall, by execution thereof, agree to become and
automatically be deemed to be an Investor Stockholder subject to all of the
rights and obligations contained in this Agreement applicable to such HW
Investor and to have made on the date thereof all representations and warranties
made on the date hereof by such HW Investor (modified, if necessary, to reflect
the nature of such Person as a corporation, partnership, other entity or natural
person). Promptly thereafter, such HW Investor shall cause originally executed
copies of such Investor Joinder to be delivered to the Company and the other
Investor Stockholders and shall notify such Investor Stockholders of the number
of shares of Common Stock Transferred.
(b) The restriction on Transfer contained in the first sentence of
Section 2.1(a) above shall be inapplicable with respect to:
(i) any Transfers of Common Stock made by an individual Investor
Stockholder to his or her Family Group and, thereafter, among members of
such Family Group;
(ii) any Transfers of Common Stock by an Investor Stockholder to a
member of its Corporate Group and, thereafter, among members of such
Corporate Group; provided,
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however, if such transferee ceases to be a member of such Corporate Group,
such transferee shall immediately Transfer such Common Stock to a member
of such Investor Stockholder's Corporate Group;
(iii) any Transfer of Common Stock pursuant to the terms of Sections
2.3 or 2.4 or the Registration Rights Agreement; and
(iv) any Transfers of Common Stock made by an individual Investor
Stockholder upon his or her death to his or her estate, provided that the
beneficiaries of the estate are Persons specified in clause (i) of this
Section 2.1(b);
provided, that no such Transfer shall be permitted under this Section 2.1(b) if
it would constitute a default or event of default under any agreement governing
material debt of the Company; provided, further, that in order to facilitate
compliance with federal securities laws and the provisions of this Agreement,
the aggregate number of Permitted Transferees under Section 2.1(b) shall not
exceed 35 Persons at any time without the consent of Artal, which consent shall
not be unreasonably withheld or delayed.
(c) Any Transfer made in violation of this Section 2.1 (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.
(d) No Person shall be permitted to become a party to this Agreement
except by executing an Investor Joinder pursuant to the terms set forth in this
Section 2.1 or pursuant to the terms set forth in Section 2.5.
2.2 [Intentionally Omitted]
2.3 Tag Along. (a) At least 30 days prior to making any Transfer of
any shares of Common Stock held by Artal (other than pursuant to a Public
Offering or a Rule 144 Sale), Artal shall deliver a written notice (the "Sale
Notice") to the HW Investors, specifying in reasonable detail the number of
shares of Common Stock proposed to be transferred, the identity of the
prospective transferee(s), the terms and conditions of the Transfer (including
without limitation, the price to be paid, terms of payment, form of
consideration and other material terms, including Artal's reasonable estimate of
the fair market value of any non-cash consideration offered) and all information
reasonably required to make the calculations set forth in this Section 2.3(a);
provided, however, that the provisions of this Section shall not apply to (i)
any Transfer of any shares of Common Stock to any of the employees of the
Company (or to the Company for related issuance to such employees) in connection
with management equity participation or similar contracts, plans or programs
(provided, that such contracts, plans or programs are created in good faith and
not for purposes of avoiding the transfer restrictions contained in this
Section), (ii) any Transfer of shares of Common Stock made by an individual to
his or her Family Group and, thereafter, among members of such Family Group,
(iii) any Transfers by Artal to
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a member of its own Corporate Group and thereafter among members of such
Corporate Group, (iv) any Transfers of shares of Common Stock pursuant to a
pledge or similar agreement to secure debt of such Person (incurred in good
faith and not for purposes of avoiding the rights granted to the HW Investors in
this Section 2.3) owing to a bank or other bona fide financial institution,
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 shares of
Common Stock pledged thereunder; (v) any Transfer of shares of Common Stock made
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 (ii) above or (vi)
any Transfer of Common Stock by Artal in a transaction which does not constitute
a Public Offering within 12 months of the Closing Date to the extent such
Transfer under this clause (vi), together with all other Transfers made pursuant
to this clause (vi) during such period, do not exceed 35% of the number of
shares of Common Stock that Artal owned on the Closing Date. Each HW Investor
may elect to participate in the proposed Transfer by delivering written notice
to Artal within 15 days after delivery of the Sale Notice. If any HW Investor
elects to participate in such Transfer pursuant to the terms hereof, such HW
Investor shall be entitled to sell in the proposed Transfer, at the same price
and on the same terms and conditions as Artal, up to a number of shares of
Common Stock being Transferred by Artal equal to the product of (i) the number
of such shares of Common Stock then beneficially owned by such HW Investor
multiplied by, (ii) a percentage calculated by dividing the aggregate number of
shares of Common Stock which Artal proposes to sell in the aggregate in such
Transfer by the total number of shares of Common Stock then owned by Artal in
the aggregate; provided that the number of shares of Common Stock which such HW
Investor is permitted to sell pursuant to this Section 2.3(a) shall not include
any shares of Common Stock acquired by such HW Investor in connection with or
after the consummation of a Public Offering. If any HW Investor elects to
participate in such Transfer, such HW Investor shall be obligated to pay its pro
rata portion of the transaction costs associated therewith. If the aggregate
number of shares of Common Stock that the HW Investors elect and are permitted
under the foregoing provisions to sell in the proposed Transfer is, together
with the aggregate number of shares of Common Stock that Artal proposes to so
sell and the aggregate number of shares of Common Stock that any other Person
elects and is permitted to sell pursuant to any similar agreement, more than the
total number of shares of Common Stock that the transferee wishes to purchase,
then each of Heinz, WWI and Artal shall be entitled to sell to the transferee
that number of shares of Common Stock equal to the number of shares of Common
Stock to be so purchased by the transferee from all such selling parties
(including any such other Person) multiplied by a fraction, the numerator of
which is the number of such shares of Common Stock such selling party elects and
is permitted under the foregoing provisions to sell and the denominator of which
is the aggregate number of shares of Common Stock all such selling parties elect
to sell and are permitted to sell under the foregoing provisions and pursuant to
any similar agreement. If and to the extent that the transferee purchases any
shares of Common Stock from Artal but does not purchase, upon the same terms and
conditions and for the same price, the shares of Common Stock the HW Investors
elect and are permitted under the foregoing provisions to sell to the
transferee, Artal shall, simultaneously with the sale of its shares of Common
Stock, purchase from the HW Investors, at the same price and on the same terms
and conditions as are applicable to the shares of Common Stock purchased from
Artal, such shares of Common Stock of the HW Investors. If a HW Investor has not
delivered written notice to Artal that such HW Investor elects to participate in
a proposed Transfer
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within the 15-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
15-day period, to consummate such proposed Transfer to the proposed transferee
named in the related Sales Notice and at the same price and on the same terms
and conditions stated in such Sales Notice. If, at the end of such 45-day
period, Artal has not consummated such proposed Transfer, the terms of this
Section 2.3 shall again be in effect with respect to such proposed Transfer.
(b) For purposes of Section 2.3(a), if Artal has Transferred all or
part of its shares of Common Stock to one or more of its Subsidiaries or other
similar entities controlled by it (a "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 (other than a sale or disposition of
the nature set forth in the proviso to the first sentence of Section 2.3(a))
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
shares of Common Stock 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 Transfer of a
percentage of the number of shares of Common Stock 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 shares of Common Stock, the consideration
paid to the transferring party for the Transfer and allocable to the shares of
Common Stock, in the absence of agreement of the parties to this Agreement,
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 any of the parties hereto or their
Affiliates.
(c) The exercise or nonexercise of the rights of each HW Investor in
this Section 2.3 to participate in one or more Transfers by Artal shall not
adversely affect such HW Investor's rights to participate in subsequent
Transfers by Artal.
2.4 Drag Along.
(a) In the case that Artal proposes to make a Transfer of shares of
Common Stock (or of a Securities Holding Company) owned by it or its Affiliates
(the "Transferor Group") that would trigger the HW Investors' tag along rights
pursuant to Section 2.3 (assuming solely for the purpose of this Section 2.4(a)
that the exception contained in Section 2.3(a)(vi) shall not apply with respect
to the provisions of Section 2.3(a)), Artal may elect, by so specifying in the
Sale Notice, to require the HW Investors to, and the HW Investors will,
participate in such transaction on the same terms and conditions as the
Transferor Group with respect to a number of shares of Common Stock determined
as set forth below. Each HW Investor shall be required to sell in the proposed
Transfer, at the same price and on the same terms and conditions as the
Transferor Group, a number of shares of Common Stock equal to the lesser of (i)
the product of (A) the number of shares of Common Stock then
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beneficially owned by such HW Investor multiplied by, (B) a percentage
calculated by dividing the aggregate number of shares of Common Stock which the
Transferor Group proposes to sell in the aggregate in such Transfer by the total
number of shares of Common Stock then owned by the Transferor Group and (ii) the
number of such shares of Common Stock specified by Artal in the relevant Sale
Notice (such number being hereinafter referred to as the "Drag Along Number").
(b) In connection with any proposed transaction described in Section
2.4(a) above, each HW Investor agrees (i) to consent to and raise no objections
(other than with respect to its rights under this Section 2.4) to, and to take
all other actions (including, without limitation, voting, or entering into
written consents with respect to, all of its shares of Common Stock in favor of
such transaction) necessary or desirable to cause, the consummation of such
transaction and (ii) to sell, Transfer and deliver its shares of Common Stock as
required by the terms of such transaction.
(c) If the Drag Along Number is less than the number of shares of
Common Stock a HW Investor may sell in the proposed Transfer pursuant to its
rights under Section 2.3, then, notwithstanding the exercise by Artal of their
rights under this Section 2.4, such HW Investor may elect to sell such
additional shares of Common Stock pursuant to its rights under Section 2.3.
2.5 Certain Transfers by Artal.
Artal agrees that it will not effect any Transfer of Common Stock
held by it as described in clause (ii), (iii), (iv) or (v) of the proviso in the
first sentence of Section 2.3(a), unless such transferee has delivered to the
Company, WWI and Heinz an Investor Joinder whereby such transferee shall, by
execution thereof, agree to become and shall automatically be deemed to be an
Investor Stockholder subject to all of the rights (to the extent of the terms of
the assignment of such rights) and all of the obligations contained in this
Agreement applicable to Artal and to 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) .
ARTICLE III
REGISTRATION RIGHTS
3.1 Registration Rights. Concurrently herewith, the parties shall
enter into the Registration Rights Agreement.
ARTICLE IV
LEGENDS
4.1 Legend. (a) Each certificate or instrument evidencing shares of
Common Stock that is held by a HW Investor or a transferee thereof which is
required to execute an Investor Joinder pursuant to Section 2.1(a) of this
Agreement on or after the date hereof shall bear the following legend on the
face thereof:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS'
AGREEMENT AND (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF
THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT.
(b) Each certificate or instrument evidencing shares of Common
Stock, which is issued to a transferee of a HW Investor which is not required to
execute an Investor Joinder pursuant to Section 2.1(a) of this Agreement (other
than transferees in a Public Offering) on or after the date hereof shall bear
the following legend on the face thereof:
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A)
PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION
THEREUNDER.
(c) Upon the sale of any shares of Common Stock pursuant to an
effective registration statement under the Securities Act or upon the
termination or expiration of this Agreement, the certificates or instruments
representing such shares of Common Stock shall be replaced, at the expense of
the Company, with certificates or instruments not bearing the legends required
by this Section 4.1.
(d) Until such time as the certificates or instruments evidencing
shares of Common Stock that are held by each HW Investor, or a transferee
thereof which is required to execute an Investor Joinder pursuant to Section
2.1(a) hereof, are no longer required to bear either of the legends contained in
Sections 4.1(a) and 4.1(b), each HW Investor and each such transferee agrees
that it will not Transfer any shares of Common Stock except (i) pursuant to a
registration statement under the Securities Act or (ii) pursuant to an exemption
from registration thereunder.
ARTICLE V
MISCELLANEOUS
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5.1 Termination. As to any particular Investor Stockholder, this
Agreement shall no longer be binding or of further force or effect as to such
Investor Stockholder, except as noted below, as of the date such Investor
Stockholder has Transferred all such Investor Stockholder's interest in the
Common Stock; provided, however, that no such termination shall be effective if
such Investor Stockholder is in breach of this Agreement.
5.2 Remedies.
(a) Each Investor Stockholder shall have all rights and remedies
reserved for such Investor Stockholder pursuant to this Agreement, the Company's
Articles of Incorporation and By-Laws and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders 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.
(b) 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.
5.3 Consent to Amendments. Except as expressly set forth herein, the
provisions of this Agreement may only be amended or waived with the prior
written consent of each of the parties hereto.
5.4 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 permitted transferees of the parties hereto whether so expressed or not.
This Agreement is not intended to create any third party beneficiaries.
5.5 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. To the extent there exists any
inconsistency between the provisions of this Agreement and the By-Laws of the
Company, the provisions of this Agreement shall govern in all instances.
12
5.6 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.
5.7 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 the Company and each Investor Stockholder at the
address or addresses indicated on the signature pages hereto or on the Investor
Joinder (as the case may be), or to such other address or to the attention of
such other person as the recipient party has specified by prior written notice
under this Section 5.7 to the sending party.
5.8 Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
5.9 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further 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.
5.10 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.
5.11 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO
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ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS
RELATED HERETO.
* * * *
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
XXXXXXXXXXXXXX.XXX, INC.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
XxxxxxXxxxxxxx.xxx, Inc. Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxx Xxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000 Facsimile No.: 000-000-0000
Attn: Chief Executive Officer Attn: Xxxxxx X. Xxxxx, Esq.
WEIGHT WATCHERS INTERNATIONAL, INC.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
Weight Watchers International, Inc. Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxx Xxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000 Facsimile No.: 000-000-0000
Attn: Chief Executive Officer Attn: Xxxxxx X. Xxxxx, Esq.
15
X.X. XXXXX COMPANY
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
X.X. Xxxxx Company X.X. Xxxxx Company
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: 000-000-0000 Facsimile No.: 000-000-0000
Attn: Treasurer Attn: Senior Vice President and General
Counsel
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ARTAL LUXEMBOURG S.A.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
Artal Luxembourg S.A. Xxxxx Xxx Xxxxx
000, Xxxxx-Xxx Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxx
X-0000 Xxxxxxxxxx of Law
Luxembourg 000 Xxxx Xxxxxxx Xxxxxx
Facsimile No.: 352-22-42-59-22 Xxxxxxx, Xxxxxxxx 00000 Attn:
Managing Director Facsimile No.: 0-000-000-0000
and
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 0-000-000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
EXHIBIT 2.1(a)
INVESTOR JOINDER
By execution of this Investor Joinder, the undersigned agrees to
become a party to that certain Stockholders' Agreement, dated as of September
29, 1999 (the "Agreement"), among XxxxxxXxxxxxxx.xxx, Inc., and certain
stockholders of the Company, which stockholders included on such date Weight
Watchers International, Inc., Artal Luxembourg S.A. and X.X. Xxxxx Company. By
execution of this Investor Joinder, the undersigned shall have all rights, and
shall observe all the obligations, applicable to [fill in name of transferee]
(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.
Name:_________________________
Address for Notices: With copies to:
------------------------------ ------------------------------
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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:___________________
CONSENT AND AGREEMENT OF SPOUSE
I, _________________________________, am the spouse of
____________________, one of the stockholders of XxxxxxXxxxxxxx.xxx, Inc. a
Delaware corporation (the "Company"). I acknowledge that my spouse is a party to
that certain Stockholders' Agreement, dated as of September 29, 1999, among the
Company and certain stockholders of the Company, which stockholders included on
such date Weight Watchers International, Inc., Artal Luxembourg S.A. and X.X.
Xxxxx Company (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 __________, ____.
--------------------------------
(Signature of Consenting Spouse)
