EXHIBIT 10.5
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT ("Agreement") is made as of the 1st day of
July, 1996, by and among PPC HOLDINGS, INC., a Delaware corporation (the
"Company"), XXXXXX X. XXXXXXX, as Trustee of the Xxxxxx X. Xxxxxxx Trust
dated March 11, 1988, as amended ("REM Trustee"), XXXX X. XXXXXXX, as Trustee
of the Xxxx Xxxxxxx Xxxxxxx Trust dated September 24, 1982, as amended ("PBM
Trustee" and, together with "REM Trustee," the "Trustees"), and each of the
undersigned stockholders (each, an "Investor Stockholder" and, together with
the Trustees, the "Stockholders").
RECITALS
WHEREAS, the Stockholders are the holders of certain of the outstanding
shares of common stock of the Company ("Shares") as set forth on SCHEDULE A
attached hereto (which schedule will be amended from time to time to reflect
changes in ownership of the Shares); and
WHEREAS, the parties hereto have determined that it is in the best
interest of the Stockholders and the Company to restrict the transfer of the
Shares of the Investor Stockholders and to provide a mechanism for certain
transfers of the Shares to take place; and
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements and covenants contained herein, the parties agree as
follows:
1. RESTRICTIONS ON TRANSFER. Except as provided in Paragraph 4, no
Investor Stockholder shall transfer, sell, assign, hypothecate, encumber or
alienate ("transfer") any of the Shares without having provided the Trustees
and the Company the rights of first refusal specified herein. Except as
provided in Paragraph 6, no Trustee shall transfer, sell, assign,
hypothecate, encumber or alienate ("transfer") any of the Shares without
having provided the Investor Stockholders with the parallel exit rights
specified in Paragraph 6. No transfer of any Shares in violation hereof
shall be recorded on the books of the Company and any such transfer shall be
void and of no effect.
2. INSPECTION OF AGREEMENT. A copy of this Agreement duly executed by
each of the Stockholders and the Company shall be delivered to the Secretary
of the Company, maintained by the Secretary at the principal executive office
of the Company, and made available for inspection to any person requesting to
see it.
3. LEGEND ON CERTIFICATES. Each Stockholder agrees to present the
certificates representing the Shares presently owned or hereafter acquired by
him to the Secretary of the Company and to cause the Secretary to place the
following legend on the certificates in a prominent manner:
The transfer, sale, assignment, hypothecation, encumbrance, or
alienation of the Shares represented by this Certificate is restricted
by a Stockholders Agreement among this Company and certain of its
stockholders, dated July 1, 1996, and the Shares, or any interest in
them, may only be transferred in accordance with the terms of the
Stockholders Agreement. A copy of the Stockholders Agreement is
available for inspection during normal business hours at the principal
executive office of the Company. All of the terms and provisions of
the Stockholders Agreement are incorporated by reference and made a
part of this Certificate.
4. PERMISSIBLE TRANSFERS. Each Investor Stockholder may transfer
Shares, or any portion thereof, without consideration to his spouse, children
or other descendants, or to a trust for the benefit of such Investor
Stockholder, his spouse, children or other descendants, provided that such
Investor Stockholder shall be the trustee of such trusts and the deemed owner
of said Shares for purposes of Internal Revenue Code ("Code")
Section 1361(c)(2), or any successor statute ("Permitted Transferees"). Each
Permitted Transferee shall be bound by all terms of this Agreement, as
provided in Paragraph 7 of this Agreement.
5. RIGHTS OF FIRST REFUSAL. An Investor Stockholder may transfer any
of his Shares, or any right, title or interest therein, pursuant to the
following steps:
(a) The Stockholder shall give written notice (the "Sale Notice")
to the Company and the other Stockholders of his intention to transfer the
Shares. The Sale Notice shall identify the proposed transferee and specify
the number of Shares to be transferred, the price per share, and the terms of
payment.
(b) The Trustees shall have the first option to purchase the Shares
referred to in the Sale Notice at the price and on the same terms and
conditions specified in the Sale Notice. Within thirty (30) days after
delivery of the Sale Notice to the Trustees, the Trustees shall give written
notice to the Company and the other Stockholders regarding the number of
Shares to be purchased by the Trustees. Except as otherwise agreed by the
Trustees, the Trustees shall purchase such Shares in proportion to their
relative existing stockholdings.
(c) If the Trustees do not elect to purchase the Shares referred to
in the Sale Notice, the Company shall have the option to purchase all of the
Shares referred to in the Sale Notice (other than those Shares to be
purchased by the Trustees) at the price and on the same terms and conditions
specified in the Sale Notice. Within forty-five (45) days after delivery of
the Sale Notice to the Company, the Company shall give written notice to the
Stockholders regarding the number of Shares to be purchased by the Company.
(d) If the Trustees and/or the Company elect to purchase all of the
Shares set forth in the Sale Notice, the Trustees and/or the Company, as
applicable, shall purchase all such Shares at the price and on the same terms
and conditions specified in the Sale Notice.
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(e) If the Trustees and/or the Company do not elect to purchase all
of the Shares set forth in the Sale Notice, such Shares, but not less than
all of such Shares referred to in the Sale Notice, may be transferred at any
time prior to the ninetieth (90th) day after the date of the Sale Notice to
the transferee identified in the Sale Notice on the terms and conditions
specified in the Sale Notice. No transfer of Shares shall be made after the
end of such ninety (90) day period, nor shall any change in the terms and
conditions of transfer be permitted, without the selling Investor Stockholder
first giving to the Company and the other Stockholders a new Sale Notice in
compliance with the requirements of this Paragraph.
6. PARALLEL EXIT RIGHT.
(a) If at any time prior to the termination of this Agreement,
either or both of the Trustees and/or any Affiliate (for purposes of this
Agreement, the term "Affiliate" shall have the meaning defined in Rule 405 of
the Securities Act of 1933, as amended (the "Securities Act")) of either of
the Trustees (collectively, together with the Trustees, the "Xxxxxxx
Affiliates") propose to sell or exchange (in a business combination or
otherwise) any of their Shares to any third party (a "Buyer"), other than a
Xxxxxxx Affiliate or other than pursuant to a registration statement under
the Securities Act, the Xxxxxxx Affiliates shall so notify the Investor
Stockholders, describing in such notification (the "Parallel Exit Notice")
(i) the name and address of the Buyer, (ii) the price per Share and the form
of consideration which the Buyer proposes to pay for the transferred Shares,
(iii) the terms of any additional consideration to be provided to the Xxxxxxx
Affiliates including, without limitation, any noncompetition or consulting
agreement (the "Additional Consideration"), and (iv) the method of payment
and other terms and conditions of the proposed sale or exchange.
(b) The Xxxxxxx Affiliates shall provide as part of the proposed
sale or exchange, and each Investor Stockholder hereby agrees, that each
Investor Stockholder shall participate therein (the "Parallel Exit Right"),
PRO RATA in proportion to the respective numbers of Shares owned by the
Xxxxxxx Affiliates, each Investor Stockholder and each other person who
exercises any right or has an obligation to participate with the Xxxxxxx
Affiliates in the sale or exchange, on the same terms and subject to the same
conditions (including but not limited to obligations with respect to
indemnification) as the sale or exchange by the Xxxxxxx Affiliates; provided,
however, that, for purposes of determining the consideration to be paid for
each Share of the Investor Stockholders, the aggregate consideration to be
paid for the transferred Shares shall be deemed to include (i) the price per
Share to be paid therefor and (ii) the Additional Consideration allocated
ratably among the transferred Shares.
(c) The sale or exchange of the Shares resulting from the Parallel
Exit Right shall take place at the principal offices of the Company on the
twentieth (20th) business day following the date of delivery of the Parallel
Exit Notice or at such other place, on such other date, or both, as the
Xxxxxxx Affiliates and the Buyer shall agree upon in writing (the "Closing
Date"). On the Closing Date, each Stockholder shall deliver the
certificate(s) representing the applicable number of Shares to be transferred
by him to the Buyer in proper form for transfer with appropriate stock powers
executed in blank attached and with all documentary or transfer tax stamps
affixed, against payment of the considerations therefor by a wire transfer of
funds to the respective bank accounts designated by the Xxxxxxx Affiliates
and each Investor Stockholder
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or by certified or official bank check or checks. By delivering such
certificate(s), the Xxxxxxx Affiliates and the Investor Stockholders each
shall be deemed to represent that the Buyer will receive good title to the
respective securities transferred by them represented by such certificates
and instruments, free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements and voting trusts.
(d) Upon consummation of the sale or exchange, the transferred
Shares shall no longer be subject to the provisions of this Agreement.
7. RIGHTS AND OBLIGATIONS OF TRANSFEREE. Except as otherwise expressly
provided in this Agreement, each transferee or any subsequent transferee of
Shares (or any right, title or interest in such Shares) shall hold such
Shares (or right, title or interest in such Shares) subject to all of the
provisions of this Agreement applicable to the transferor of such Shares (or
his predecessor in interest) and shall make no further transfers except as
provided in this Agreement. In addition, each Permitted Transferee shall
succeed to the rights that his respective transferor held under this
Agreement as if the subject Shares were still held by such transferor.
8. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
occurrence of any one of the following events:
(a) July 1, 2016;
(b) The written agreement of the Stockholders to that effect; or
(c) The bankruptcy, receivership, or dissolution of the Company.
9. ALTERATIONS OR AMENDMENTS. This Agreement may be altered or amended
in whole or in part at any time, by filing with this Agreement a written
instrument setting forth the changes signed by the Company and each of the
Stockholders.
10. NOTICES. Any and all notices or other communications required or
permitted by this Agreement or by law to be served on, given to, or delivered
to any party hereto by any other party to this Agreement shall be in writing
and shall be deemed duly served, given, or delivered when personally
delivered to the party or to an officer of the party, or in lieu of such
personal delivery, on the third day after deposit in the United States Mail,
registered or certified, return receipt requested, addressed to a Stockholder
at the address then appearing for him on the books and records of the Company
or to the Company at its principal executive office.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and, except as restricted above
with regard to transfers, each of their heirs, executors, administrators,
successors and assigns.
12. SEVERABILITY. Should any provisions or portion of this Agreement be
held unenforceable and invalid for any reason, the remaining provisions and
portions of this Agreement shall continue in full force and effect.
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13. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware.
14. ENFORCEMENT. In the event of any breach of any covenant in, or any
other default under, this Agreement, any Stockholder may proceed to protect
and enforce his rights by suit in equity or action at law, whether for the
specific performance of any term contained in this Agreement or for an
injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement, or to enforce any other legal or
equitable right of such Stockholder, or to take any one or more of such
actions. In the event any party hereto brings such an action against any
other party, the prevailing party in such dispute shall be entitled to
recover from the other party all fees, costs and expenses of enforcing any
right of such prevailing party under or with respect to this Agreement,
including without limitation reasonable fees and expenses of attorneys and
accountants. None of the rights, powers or remedies conferred upon any party
hereto shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to every other right, power or remedy,
whether conferred hereby or now or hereafter available at law, in equity, by
statute or otherwise. Except as expressly provided in this Agreement, no
course of dealing between the Company and any Stockholder or between any
Stockholders, and no delay in exercising any such right, power or remedy
conferred hereby or now or hereafter existing at law, in equity, by statute
or otherwise, shall operate as a waiver of, or otherwise prejudice, any such
right, power or remedy.
15. ENTIRE AGREEMENT. This instrument constitutes the entire Agreement
of the parties hereto respecting the sale and purchase of the Shares and
correctly sets forth the rights, duties, and obligations of each to the other
in relation thereto as of its date. Any prior agreements, promises,
negotiations, or representations concerning its subject matter not expressly
set forth in this Agreement are of no force or effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above set forth.
PPC HOLDINGS, INC.,
a Delaware corporation
By /s/ Xxxx X. Xxxxxxx
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Name:
Title:
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX, as Trustee
of the Xxxxxx X. Xxxxxxx Trust
dated March 11, 1988, as amended
/s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX, as Trustee
of the Xxxx Xxxxxxx Xxxxxxx Trust
dated September 24, 1982, as amended
INVESTOR STOCKHOLDERS:
/s/ Xxxxx X. Pesiach
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XXXXX X. PESIACH
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
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Stockholders Agreement by and among the stockholders of the Company
named therein dated as of the 1st day of July, 1996.
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Schedule A Omitted In Accordance
With Item 601(b)(2) of Regulation S-K
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Schedule A Issued and Oustanding Common Stock of the Stockholders
Xxxxx-Xxxx'x Incorporated will furnish supplementally a copy of any
omitted schedule or exhibit to the Securities and Exchange Commission upon
request; provided, however, that Xxxxx-Xxxx'x Incorporated may request
confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any
schedule or exhibit so furnished.
