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Exhibit 10.6
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "Agreement"), dated as of March 1,
2000, is by and among Glacier Distribution Company, Inc., a Colorado corporation
(the "Company"), and Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, Xx., Xxxxx X.
Xxxxxxxxx, Xxxxx Xxxx-Xxxxxxx and Xxxxx X. Xxxxxxxx (collectively, the
"Founders"), and each person who, at any time, acquires securities of the
Company and executes a counterpart of this Agreement or otherwise agrees to be
bound by this Agreement (collectively with the Founders, the "Shareholders").
RECITALS
A. The Founders, who own 96.7% of the issued and outstanding Shares,
and the Company desire to agree to various restrictions and rights with respect
to the Shares.
B. The Company and the Founders have jointly developed a business plan
for the Company (the "Business Plan") and, in connection therewith, the Founders
have contributed to, and/or developed on behalf of, the Company certain
proprietary information (the "Information") to be used by the Company to
implement the Business Plan.
C. Certain terms used in this Agreement are defined in Section 8 of
this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereto agree as follows:
1. RESTRICTIONS ON TRANSFER.
(a) Retention of Stock. No Shareholder shall sell, transfer, assign,
pledge, convey, exchange, hypothecate, borrow against, permit a security
interest to attach to, or otherwise dispose of or encumber, directly or
indirectly, voluntarily or involuntarily (whether with or without consideration
and whether voluntarily or involuntarily or by operation of law) any interest in
any Shares (a "Transfer"), except pursuant to the terms of this Agreement.
(b) Transfers of Shares. Any Transfer shall be made in compliance with
Section 1(c) below unless such Transfer is pursuant to the following ("Permitted
Transfers"):
(i) a Public Offering or Public Company Merger;
(ii) a Sale of the Company;
(iii) a Family Transfer;
(iv) Transfers pursuant to Section 3 of this Agreement; or
(v) Transfers among the Founders.
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(c) First Refusal Rights. Prior to making any Transfer other than a
Permitted Transfer, such Shareholder (the "Selling Shareholder") shall give
written notice of such Transfer (the "Sale Notice") to the other Shareholders
(the "Other Shareholders") and the Company. The Sale Notice will disclose in
reasonable detail the identity of the prospective transferee(s), the number of
Shares to be transferred ("Transfer Shares") and the terms and conditions of the
proposed Transfer. No Shareholder shall consummate any Transfer until five (5)
days after the termination of the First Purchase Period (as defined below) and,
if applicable, the Second Purchase Period (as defined below) (the "Authorization
Date"). The Other Shareholders shall have priority over the Company in
purchasing the Transfer Shares and may elect to purchase all or any portion of
the Transfer Shares upon the same terms and conditions as those set forth in the
Sale Notice by delivering a written notice of such election ("Purchase Notice")
to the Selling Shareholder within fifteen (15) days after the Sale Notice has
been given to the Other Shareholders and the Company (the "First Purchase
Period"). If the Other Shareholders elect to purchase in the aggregate more than
the number of Transfer Shares, the Other Shareholders who delivered a Purchase
Notice shall have the right to purchase the number of Transfer Shares which is
in the same proportion to the total number of Transfer Shares as the number of
Shares owned by such Shareholder bears to the total number of Shares owned by
all the Other Shareholders who delivered a Purchase Notice. If the Other
Shareholders have not elected to purchase all of the Transfer Shares, the
Selling Shareholder shall deliver a Sale Notice to the Company (the "Second
Notice"), which shall state the number of Transfer Shares which the Other
Shareholders have not elected to purchase (the "Remaining Shares"). The Company
may elect to purchase all of the Remaining Shares upon the same terms and
conditions as those set forth in the Sale Notice by delivering a Purchase Notice
to the Selling Shareholder within fifteen (15) days after the Second Notice has
been given to the Company (the "Second Purchase Period"). If neither the Company
nor the Other Shareholders elect to purchase all of the Transfer Shares, the
Selling Shareholder may transfer the Transfer Shares at a price and on terms no
more favorable to the transferee(s) thereof than specified in the Sale Notice
during the 60-day period immediately following the Authorization Date. Any
Transfer Shares not transferred within such 60-day period will be subject to the
provisions of this Section 1(c) upon subsequent Transfer.
(d) Continuation of Transfer Restrictions. The restrictions on the
Transfer of Shares in this Section 1 will continue with respect to each Share
following any Transfer in accordance with the provisions of Section 1(c), and
the transferee shall execute a counterpart of, and be bound by the terms and
provisions of this Agreement.
2. ADDITIONAL RESTRICTIONS ON TRANSFER.
(a) Legend. The Shareholders agree that all certificates evidencing
Shares owned by them on the date of this Agreement or acquired hereafter shall
be marked with a legend to the effect that the Shares have not been registered
under the 1933 Act or any applicable state securities laws, and may not be
transferred other than in compliance with such laws, and that the holders of
such Shares are bound by the terms of this Agreement, as it may be amended from
time to time.
(b) Compliance with Securities Laws. No holder of Shares may sell,
transfer or dispose of any Shares (except pursuant to an effective registration
statement under the 1933 Act) without first delivering to the Company an opinion
of counsel, if requested by the
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Company (which opinion shall be reasonably acceptable in form and substance to
the Company), that neither registration nor qualification under the 1933 Act and
applicable state securities laws is required in connection with such transfer.
3. SALE OF THE COMPANY.
(a) Obligation to Consent and Sell. If the Board of Directors of the
Company (the "Board") approves a Sale of the Company and in connection therewith
determines that the sale is fair from a financial point of view to the
Shareholders (the "Approved Sale"), the Shareholders will consent to and raise
no objections against the Approved Sale, and (i) if the Approved Sale is
structured as a sale of stock, the Shareholders will agree to sell their Shares
on the terms and conditions approved by the Board, (ii) if the Approved Sale is
structured as a merger, consolidation or other reorganization, the Shareholders
will vote in favor thereof (to the extent they are entitled to vote) and will
not exercise any dissenters' rights or appraisal rights they may have under
applicable law, and (iii) if the Approved Sale is structured as a sale of
substantially all of the assets of the Company and its subsidiaries determined
on a consolidated basis, the Shareholders will vote in favor thereof (to the
extent they are entitled to vote). The Shareholders will use their best efforts
to cooperate in the Approved Sale and will take all necessary and desirable
actions in connection with the consummation of the Approved Sale as reasonably
requested by the Board, including, but not limited to, the provisions of
representations and warranties or indemnification; provided that the
Shareholders shall not be required to incur any out-of-pocket expenses in
connection with such Approved Sale which are not reimbursed by the Company; and
provided further that no Shareholder shall be required to provide different
representations and warranties or indemnification than any other Shareholder.
(b) Conditions to Obligation. The obligations of the Shareholders with
respect to the Approved Sale are subject to the satisfaction of the condition
that upon the consummation of the Approved Sale, all of the Shareholders will
receive the same form and amount of consideration per Share as received by all
Shareholders of the same class of stock of the Company or if any Shareholders
are given an option as to the form and amount of consideration to be received,
all Shareholders will be given the same option as all other Shareholders.
4. PUBLIC OFFERING.
(a) Actions in Connection with Public Offering. In the event that a
majority of the members of the Board approve an initial Public Offering or
Public Company Merger, each Shareholder shall take all necessary or desirable
actions in connection with the consummation of the Public Offering or Public
Company Merger. In the event the managing underwriters in such Public Offering
advise the Company in writing that in their opinion the Company's capital
structure will adversely affect the marketability of the offering, each
Shareholder shall consent to and vote for any recapitalization, reorganization
and/or exchange of the Company's capital stock into securities that the managing
underwriters and a majority of the members of the Board find acceptable and
shall take all necessary and desirable actions in connection with such
recapitalization, reorganization and/or exchange.
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(b) Standstill for Public Offering. In addition to the other
restrictions contained herein, upon request by the managing underwriter(s) in
any Public Offering, each Shareholder will agree not to effect any public sale
or distribution of any Shares or other equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for any of the
Company's equity securities, during the seven (7) days prior to and the one
hundred eight (180) days after the effectiveness of any underwritten Public
Offering, except as part of such underwritten Public Offering or if otherwise
permitted by the Company and the managing underwriter.
5. CLOSINGS OF SALES.
(a) Failure to Deliver Certificates. If the Shareholder is not present
at any closing of the sale of Shares under this Agreement, or is present but,
for any reason, fails to produce and deliver to the purchaser, in accordance
with this Agreement, the Shares being transferred, then the purchaser may
deposit the applicable consideration payable to such Shareholder into a special
account in trust for the Shareholder at a bank designated by the Company. Such
deposit shall constitute value and effective payment to the Shareholder of the
purchase price for such Shares notwithstanding the fact that the Shareholder may
have voluntarily attempted to encumber or dispose of any of the Shares contrary
to the terms hereof, or that one or more certificates or other evidence of
ownership of the Shares may have been delivered to any other person. From and
after the date of such deposit (even though the share certificates in the name
of such Shareholder or other instruments representing such Shares have not been
delivered to the purchaser), the purchase and transfer of the Shares shall be
deemed to have been fully completed and all right, title, benefit and interest
of the Shareholder in and to all such Shares, both at law and in equity, shall
be conclusively deemed to have been transferred and assigned to and become
vested in the purchaser.
(b) Receipt of Consideration. Where the purchaser has made a deposit in
accordance with Section 5(a), the Shareholder shall be entitled to receive the
consideration for the Shares deposited with the designated bank, without
interest, upon delivery to the Company of (i) the certificates or other
instruments representing the Shares duly endorsed for transfer in the manner
required by this Agreement and (ii) any other document required under Section
5(a) to be delivered by the Shareholder at the closing including, without
limitation, the release or discharge of any encumbrance relating to the Shares
being sold.
(c) Appointment of Attorney-in-Fact. For purposes of enforcing this
Section 5, each Shareholder irrevocably constitutes and appoints the Secretary
of the Company from time to time as such Shareholder's attorney and agent
authorized, in such Shareholder's name and on such Shareholder's behalf, to
execute and deliver (i) all such assignments, transfers, deeds and instruments
as may be necessary to effectively transfer the Shares being transferred to the
purchaser on the books of the Company and (ii) any other document required under
this Agreement to be delivered at closing. Such appointment and power of
attorney, being coupled with an interest, shall not be revoked by the
insolvency, bankruptcy, death or incapacity of the Shareholder and the
Shareholder hereby agrees to ratify and confirm any act taken by the Secretary
on such Shareholder's behalf hereunder and agrees that the receipt of the
Secretary as attorney shall be a good discharge to the Shareholder. Nothing in
this Section 5 is intended to limit any other
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remedy available to the Company or the Founders in connection with the purchase
of Shares pursuant to this Agreement.
6. VOTING MATTERS.
(a) Board of Directors. From and after the date hereof and until the
provisions of this Section 6 cease to be effective, the Shareholders shall vote
all of the Shares and any other voting securities of the Company over which such
Shareholders have voting control and shall take all other necessary or desirable
actions within such Shareholders' control so that the Board is comprised of
designees of the Founders.
(b) Grant of Proxy. In order to secure each Shareholder's obligation to
vote shares and other voting securities of the Company in accordance with the
provisions of this Section 6 and also in accordance with the provisions of
Section 3 above, each Shareholder hereby appoints the Secretary of the Company
as such Shareholder's true and lawful proxy and attorney-in-fact, with full
power of substitution, to vote all of such Shareholder's shares of voting
securities of the Company for the election and/or removal of directors in
accordance with this Section 6 and all such other matters as expressly provided
for in Section 3 above. The Secretary of the Company may exercise the
irrevocable proxy granted hereunder at any time any Shareholder fails to comply
with the provisions of this Agreement. The proxies and powers granted by each
Shareholder pursuant to this Section 6 are coupled with an interest and are
given to secure the performance of such Shareholder's obligations under the
provisions of Sections 3 and 6 of this Agreement. Such proxies and powers will
be irrevocable for the term set forth in Section 7 of this Agreement and will
survive the death, incompetency and disability of such Shareholder.
7. TERMINATION OF CERTAIN PROVISIONS.
The provisions of Sections 1, 3 and 6 of this Agreement (other
than with respect to payment obligations then in effect) shall terminate upon
the first to occur of (i) a Public Offering, (ii) a Public Company Merger or
(iii) an Approved Sale.
8. DEFINITIONS.
"Family Transfer" of Shares shall mean a Transfer (i) pursuant
to applicable laws of descent and distribution or (ii) among a Shareholder's
family group; provided that the restrictions of this Agreement will continue to
be applicable to the Shares after any such transfer and the transferees of such
Shares shall agree in writing to be bound by the provisions of this Agreement. A
Shareholder's "family group" means such Shareholder's spouse and descendants
(whether natural or adopted) and any trust solely for the benefit of such
Shareholder and/or such Shareholder's spouse and/or descendants.
"Independent Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of five percent
(5%) of the Company's common stock on a fully-diluted basis (a "5% Owner"), who
is not controlling, controlled by or under common control with any such 5% Owner
and who is not the spouse or descendent (by birth or adoption) of any such 5%
Owner or a trust for the benefit of such 5% Owner and/or such other Persons.
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"1933 Act" means the Securities Act of 1933, as amended from
time to time.
"Person" means an individual, a partnership, a limited
liability company, a joint venture, a corporation, a trust, an unincorporated
organization or a government or any department or agency thereof.
"Public Company Merger" means the merger of the Company with a
company (or an affiliate of such company) with common stock issued and publicly
traded on any national securities exchange or the NASDAQ Stock Market with such
public company surviving the merger and pursuant to which the Shareholders
receive shares of such public Company's common stock in exchange for their
Shares.
"Public Offering" means the sale, in an underwritten public
offering registered under the 1933 Act, of shares of the Company's common stock.
"Sale of the Company" means the sale of the Company to an
Independent Third Party or affiliated group of Independent Third Parties
pursuant to which such party or parties acquire (i) capital stock of the Company
possessing the voting power to elect a majority of the Board (whether by merger,
consolidation or sale or transfer of the Company's capital stock) or (ii) all or
substantially all of the assets of the Company and its subsidiaries determined
on a consolidated basis.
"Shares" shall mean any share of the Company's common stock,
no par value per share, acquired by a Shareholder (including any shares acquired
pursuant to the exercise of any stock option, warrant or other security
exercisable for or convertible into the Company's common stock) and shall
continue to be Shares in the hands of any holder other than a Shareholder
(except for the Company (or its designees) and except for transferees in a
Public Offering, Public Company Merger, Approved Sale or pursuant to a
Disposition Notice). Except as otherwise provided herein, each such other holder
of Shares will succeed to all rights and obligations attributable to a
Shareholder as a holder of Shares hereunder. Shares will also include shares of
the Company's capital stock issued with respect to Shares by way of a stock
split, stock dividend or other recapitalization.
9. NOTICES.
Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
service (charges prepaid) to the recipient at the address below indicated:
To the Company:
Glacier Distribution Company, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: President
With copies to:
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Xxxxxx, Chase, Frick, Xxxxxxxxx & Xxxxxx, LLC
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
To each Shareholder:
At the address set forth on the signature pages to this Agreement or such other
address or to the attention of such other person as the recipient party shall
have specified by prior written notice to the sending party. Any notice under
this Agreement will be deemed to have been given when so delivered or sent or,
if mailed, three days after deposit in the U.S. mail. If any time period for
giving notice or taking action hereunder expires on a day which is a Saturday,
Sunday or holiday in the State of Colorado, the time period shall be
automatically extended to the business day immediately following such Saturday,
Sunday or holiday.
10. CONFIDENTIALITY.
The Shareholders agree that they will not, at any time,
disclose any of the Information to any person, use or permit the use of any of
the Information in any way to compete (directly or indirectly) with the Company
or in any other manner adverse to the Company; provided, however, that the
Information may be disclosed and used in the ordinary course of business in a
manner which is in the best interests of the Company as determined in the
reasonable discretion of the Company. The parties hereto acknowledge that the
Information has independent economic value to the Company and that the Company
has the right to maintain a secrecy of the Information and that the disclosure,
or improper use, of the Information by the Shareholders will cause irreparable
harm to the Company.
11. OTHER PROVISIONS.
(a) Transfer in Violation of Agreement. Any Transfer or attempted
Transfer of any Shares in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Shares as the owner of such stock for any purpose.
(b) Severability. Whenever possible, each provision of this Agreement
will be interpreted in 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 or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings,
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agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitutes one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns (including subsequent
holders of Shares); provided that the rights and obligations of any Shareholder
under this Agreement shall not be assignable except in connection with a
Permitted Transfer hereunder.
(f) Choice of Law. The corporate law of the State of Colorado will
govern all questions concerning the relative rights of the Company and its
shareholders and all other questions concerning the construction, validity and
interpretation of this Agreement will be governed by the internal law, and not
the law of conflicts, of the State of Colorado.
(g) Remedies. Each of the parties to this Agreement (including the
Shareholders) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including reasonable attorney's
fees) caused by any breach of any provision of this Agreement and to exercise
all other rights existing in its favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that nay party may in its sole discretion apply
to any court of law or equity of competent jurisdiction (without posting any
bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and each
of the Founders.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
GLACIER DISTRIBUTION COMPANY, INC.
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Xxxxxx X. Xxxxx, Chief Executive Officer
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EXHIBIT C-1
SHAREHOLDERS AGREEMENT
COUNTERPART FOR FUTURE TRANSFERS AND ACKNOWLEDGMENTS
TO: Glacier Distribution Company, Inc.
RE: The Shareholders Agreement (the "Agreement") dated as of
March 1, 2000 by and among Glacier Distribution Company, Inc.
and the Founders (as defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
a Shareholder pursuant to the Agreement, as fully and effectively as though the
undersigned had executed a counterpart of the Agreement together with the other
parties to the Agreement. The undersigned hereby acknowledges having received
and reviewed a copy of the Agreement.
DATED this ____ day of __________________, 2000.
SHAREHOLDER
Signature:__________________________________
Printed Name:_______________________________
Address:____________________________________
FOUNDERS:
____________________________________________
Xxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
____________________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
____________________________________________
Xxxxx X. Xxxxxxxxx
____________________________________________
Xxxxx Xxxx-Xxxxxxx
____________________________________________
Xxxxx X. Xxxxxxxx
