Exhibit 10.2
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT dated as of August 23, 2005 between The Hain
Celestial Group, Inc., a Delaware corporation ("Parent"), and Xxxxxxx Xxxxxxxx
(the "Shareholder"), a shareholder of Spectrum Organic Products, Inc., a
California corporation (the "Company").
WHEREAS, Parent and the Company propose to enter into an Agreement and Plan
of Merger dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"; terms used but not defined herein shall
have the respective meanings set forth in the Merger Agreement) providing for,
among other things, the merger of the Company with and into a California limited
liability company that is a wholly owned subsidiary of Parent ("Parent
Subsidiary"), upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, as of the date hereof, Shareholder owns the number of Company
Shares set forth on Appendix A hereto (of record or beneficially) (such Company
Shares being referred to herein as the "Original Shares"; the Original Shares,
together with any other shares of capital stock of the Company or other voting
securities of the Company acquired (of record or beneficially) by Shareholder
after the date hereof and during the term of this Agreement (including through
the exercise of any stock options or other securities convertible into voting
stock), being collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that Shareholder enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein and in the Merger
Agreement, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO VOTE
Section 1.01. Voting. Shareholder hereby agrees that during the time this
Agreement is in effect Shareholder shall (or shall cause the relevant record
holder(s) to), in connection with any meeting or action by written consent of
the shareholders of the Company: (a) vote his Voting Shares (as defined below)
in favor of adoption of the Merger Agreement; (b) vote his Voting Shares against
any action or agreement that could reasonably be expected to result in a breach
of any representation, warranty, covenant or agreement of the Company under the
Merger Agreement; and (c) vote his Voting Shares against any action or agreement
that could reasonably be expected to prevent, impede, interfere with, delay or
postpone the consummation of the Merger, including, without limitation any (i)
Takeover Proposal, (ii) reorganization, recapitalization, liquidation or
winding-up of the Company or any other extraordinary transaction involving the
Company, (iii) corporate action the consummation of which would frustrate the
purposes, or prevent or delay the consummation, of the transactions contemplated
by the Merger Agreement, (iv) material change in the policies or management of
the Company, (v) election of new members to the board of directors of the
Company, (vi) material change in the present capitalization or dividend policy
of the Company or any amendment or other change to the Company's Articles of
Incorporation or Bylaws, (vii) other material change in the Company's corporate
structure or business or (vii) other matter relating to, or in connection with,
any of the foregoing matters. For purposes of this Agreement, "Voting Shares"
shall mean 18,577,877 Company Shares plus that number of additional Subject
Shares necessary to represent an aggregate of 40% of all Company Shares eligible
to vote or act by written consent at the record date.
Section 1.02. Grant Of Irrevocable Proxy. (a) Shareholder hereby grants to
Parent, and to each officer of Parent, a proxy to vote his Voting Shares as
indicated in Section 1.01. Shareholder intends this proxy to be, and this proxy
is, irrevocable and coupled with an interest and Shareholder will immediately
take such further action or execute such other instruments as may be necessary
to effectuate the intent of this proxy and hereby revokes any proxy previously
granted by him with respect to his Voting Shares. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with California law. The
irrevocable proxy granted in this Section 1.02 shall expire in accordance with
Section 5.14 hereof.
(b) Shareholder represents that any proxies heretofore given in
respect of the Voting Shares are not irrevocable, and that any such proxies are
hereby revoked.
(c) Shareholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon Shareholder's execution and delivery
of this Agreement.
Section 1.03. Capacity. By executing and delivering this Agreement,
Shareholder makes no agreement or understanding herein in his capacity or
actions as a director, officer or employee of the Company or any subsidiary of
the Company. Shareholder is signing and entering into this Agreement solely in
his capacity as the beneficial owner of his Subject Shares, and nothing herein
shall limit or affect in any way any actions that may be hereafter taken by him
in his capacity as an employee, officer or director of the Company or any
subsidiary of the Company.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Parent as follows:
Section 2.01. Ownership Of Original Shares. Shareholder is the beneficial
owner of, and has good and marketable title to, the number of Original Shares
set forth on Appendix A hereto, free and clear of any Liens. As of the date
hereof, Shareholder does not own (of record or beneficially) any shares of
capital stock of the Company other than his Original Shares. Shareholder has the
sole right to Transfer (as defined below) and direct the voting of his Original
Shares, and none of his Original Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the Transfer or the voting
of the Original Shares, except as set forth in this Agreement.
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Section 2.02. Power; Binding Agreement. Shareholder has the legal capacity,
power and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Shareholder will not violate any other agreement to which Shareholder is a party
including, without limitation, any voting agreement, shareholders agreement or
voting trust. This Agreement has been duly and validly executed and delivered by
Shareholder and constitutes a valid and binding agreement of Shareholder,
enforceable against Shareholder in accordance with its terms.
Section 2.03. No Conflicts. No authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by Shareholder of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any Lien upon any of the Subject Shares or
other properties or assets of Shareholder under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
Shareholder is a party or by which the Subject Shares or Shareholder's other
properties or assets are bound.
Section 2.04. Finder's Fees. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Shareholder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Shareholder as follows:
Section 3.01. Power; Binding Agreement. Parent has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
Parent and constitutes a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms.
ARTICLE 4
COVENANTS OF SHAREHOLDER
Section 4.01. Covenants of Shareholder. Shareholder agrees as follows:
(a) Except as set forth herein and in the Merger Agreement,
Shareholder shall not:
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(i) sell, transfer, pledge, assign or otherwise dispose of (including
by gift) (collectively, "Transfer"), or consent to or permit any Transfer
of, or enter into any contract, option or other arrangement or
understanding with respect to the Transfer of, his Subject Shares to any
person, other than Parent or Parent's designee; provided that three months
prior to the expiration of any option to purchase Company Shares in
accordance with its terms, Shareholder may Transfer, or enter into any
contract, option or other arrangement or understanding with respect to the
Transfer of, any Subject Shares in connection with the exercise (cashless
or otherwise) of that option to purchase Company Shares in an amount that
is sufficient to satisfy the payment of any transaction costs and any tax
liability incurred by Shareholder in connection with such exercise;
(ii) enter into, or otherwise subject his Subject Shares to, any
voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to his Subject Shares; or
(iii) take any other action that would in any way restrict, limit or
interfere with the performance of his obligations hereunder or the
transactions contemplated to be performed by him hereunder.
(b) Shareholder hereby irrevocably and unconditionally waives, and
agrees to prevent the exercise of, any rights of appraisal or rights to
dissent in connection with the Merger that Shareholder may have with
respect to his Subject Shares.
(c) Shareholder hereby agrees that any attempted Transfer in violation
of Section 4.01(a)(i) shall be null and void.
Section 4.02. No Solicitation; Other Offers. Shareholder acknowledges and
agrees to be bound by the obligations applicable to Shareholder as set forth in
Section 8.5 of the Merger Agreement.
Section 4.03. Further Assurances. Shareholder shall, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote his
Voting Shares as contemplated by Section 1.02. Parent agrees to use commercially
reasonable efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed with respect to
the transactions contemplated by this Agreement.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Expenses. All costs and expenses incurred by any party in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
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Section 5.02. Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not to be performed in accordance with
their specific terms or were to be otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that in such circumstances the parties will be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
Section 5.03. Notices. All notices and other communications hereunder will
be in writing and will be deemed given if delivered personally, telecopied
(which is confirmed) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as is specified by like notice):
(a) if to Parent to:
The Hain Celestial Group, Inc.
00 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(b) if to Shareholder, to his address listed on the books of
the Company:
with a copy (which shall not constitute notice) to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
or to any other address or facsimile number as that party may hereafter specify
for this purpose by notice to the other parties. All such notices, requests and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received before 5 p.m. local time on a business day in the
place of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding business day in the
place of receipt.
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Section 5.04. Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
Section 5.05. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder will be assigned by any the party hereto
(whether by operation of law or otherwise) without the prior written consent of
each of the other parties and any such purported assignment without such prior
written consent shall be null and void; provided that Parent may assign this
Agreement and any of their respective rights, interests and obligations
hereunder to any of its respective direct or indirect subsidiaries without such
prior written consent, but no such assignment shall relieve either such party of
its obligations under this Agreement. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. Shareholder agrees as
to himself, severally and not jointly, that this Agreement and his obligations
hereunder shall attach to his Subject Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or otherwise, including Shareholder's
heirs, guardians, administrators or successors.
Section 5.06. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of California,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. Each of Shareholder and Parent irrevocably submits
to the exclusive jurisdiction of any California state or federal court sitting
in the State of California in any action arising out of or relating to this
Agreement, hereby irrevocably agrees that all claims in respect of such action
shall be heard and determined in such California state or federal court, and
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding.
Section 5.07. Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 5.08. Interpretation. When a reference is made in this Agreement to
a Section, such reference will be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are used
in this Agreement they will be deemed to be followed by the words "without
limitation". As used in this Agreement, the term "affiliate" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act; provided that in no event
will Parent or Parent Subsidiary, on the one hand, or the Company, on the other,
be considered an affiliate of the other such party(ies).
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Section 5.09. Stop Transfer Restriction; Legend.
(a) In furtherance of this Agreement, Shareholder shall, and
authorizes Parent to, deliver written instructions to the Company and the
Company's transfer agent (a) that there is a stop transfer restriction with
respect to all of his Subject Shares (and that this Agreement places limits on
the voting and Transfer of his shares); provided that each such notification to
the Company's transfer agent in accordance with this Section 5.09 shall provide
that the relevant stop transfer restriction shall not limit the exercise by that
Shareholder of any options to purchase Company Shares, or the transfer of his
Subject Shares in compliance with Section 4.01.
(b) Stockholder shall cause the certificated Subject Shares to have a
legend placed conspicuously on such certificate to the following effect: "The
shares of common stock evidenced by this certificate are subject to a Voting and
Support Agreement dated August 23, 2005, entered into by the record owner of
such shares and The Hain Celestial Group, Inc." Stockholder shall cause a
counterpart of this Agreement to be deposited with the Company at its principal
place of business or registered office where it shall be subject to the same
right of examination by a stockholder of the Company, in person or by agent or
attorney, as are the books and records of the Company.
Section 5.10. Entire Agreement; No Third Party Beneficiaries. This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.11. Severability. Whenever possible, each provision of this
Agreement will be interpreted in a such manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 5.12. Validity. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of any other
provisions hereof, which will remain in full force and effect. Upon any
determination that any term or other provision is invalid or incapable of being
enforced, the parties shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in order
that the transactions contemplated by this Agreement may be consummated as
originally contemplated to the fullest extent possible.
Section 5.13. Binding Effect On Signatories. Once this Agreement has been
executed by Parent, this Agreement shall be binding upon Shareholder when he
executes this Agreement.
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Section 5.14. Expiration. This Agreement and the rights and obligations of
the respective parties hereto under this Agreement, including the irrevocable
proxy granted in Section 1.02, shall terminate, and be of no further force or
effect, on the earliest to occur of (A) the Effective Time, (B) the termination
of this Agreement by written notice from Parent to Shareholder and (C) the
termination of the Merger Agreement in accordance with its terms; provided that
Sections 5.01, 5.03, 5.06, 5.08, 5.10, 5.12 and 5.15 shall survive any such
termination.
Section 5.15. Nonsurvival Of Representations And Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement will survive the Effective Time or any termination of
this Agreement. This Section 5.15 shall not limit any covenant or agreement of a
party that by its terms expressly contemplates performance after the Effective
Time.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be
signed, in the case of Parent, by its officers thereunto duly authorized, as of
the date first written above.
THE HAIN CELESTIAL GROUP, INC.
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Executive Vice President
andChief Financial Officer
XXXXXXX XXXXXXXX
/s/ Xxxxxxx Xxxxxxxx
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Appendix A
Original Shares
Company Shares Company Shares
Shareholder owned of record beneficially owned
----------- --------------- ------------------
Xxxxxxx Xxxxxxxx 26,950,000 27,025,000
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