Exhibit 10.1
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (as the same
may be amended from time to time in accordance with its terms, this “Agreement”), dated as of August 7, 2023,
by and among the Persons listed on Schedule A hereto (each a “Stockholder” and collectively, the “Stockholders”),
in each such Person’s capacity as a stockholder of Sovos Brands, Inc., a Delaware corporation (the “Company”),
and Xxxxxxxx Soup Company, a New Jersey corporation (“Parent”). Capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the Merger Agreement (as defined below).
WHEREAS, in order to induce Parent and Premium
Products, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”) to enter into an
Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”) with the Company, Parent has requested
each Stockholder, and each Stockholder has agreed, to enter into this Agreement with respect to a specified number of shares of common
stock, par value $0.001 per share, of the Company (the “Shares”) that such Stockholder beneficially owns as of the
date hereof and are set forth next to such Stockholder’s name on Schedule A hereto (such Stockholder’s “Subject
Shares”); it being understood and agreed that each Stockholder also beneficially owns an additional amount of Shares as set
forth next to such Stockholder’s name on Schedule A hereto (such shares, the “Additional Advent Shares”)
as of the date hereof that are not Subject Shares under this Agreement;
NOW, THEREFORE, in consideration of the foregoing
and the respective representations, warranties, covenants and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Article 1
Grant of Proxy; Voting Agreement
Section 1.01. Voting
Agreement.
(a) Beginning
on the date hereof until the Expiration Date, each Stockholder hereby agrees to vote or exercise its right to consent with respect to
all Subject Shares that such Stockholder is entitled to vote at the time of any vote or action by written consent to adopt the Merger
Agreement and all agreements related to the Merger and any actions related thereto at any meeting of the stockholders of the Company,
and at any adjournment thereof, at which such Merger Agreement and other related agreements (or any amended version thereof), or such
other actions, are submitted for the consideration and vote of the stockholders of the Company. Beginning on the date hereof until the
Expiration Date, each Stockholder hereby agrees that it will not vote any Subject Shares in favor of, or consent to, and will vote its
Subject Shares against and not consent to, the approval of any (i) Acquisition 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 reasonably be expected to interfere with, prevent or delay the consummation of the transactions contemplated
by the Merger Agreement and (iv) any action or Contract that would reasonably be expected to result in a material breach or violation
of any covenant, representation or warranty or any other obligation of such Stockholder contained in this Agreement. Any such Stockholder
shall provide the Company and Parent with at least three Business Days’ written notice prior to signing any action proposed to be
taken by written consent with respect to any Subject Shares.
(b) Notwithstanding
anything in this Agreement to the contrary, (i) each Stockholder shall not be required to vote (or cause to be voted) any of its
Subject Shares to amend the Merger Agreement (including any schedule or exhibit thereto), or take any action that would reasonably be
expected to result in the amendment or modification, that: (A) (1) delays or imposes any additional restrictions or conditions
on the payment of the Merger Consideration, or (2) imposes any additional conditions on the consummation of the Merger; (B) alters
or changes the amount or kind of consideration to be paid to the holders of Shares in connection with the Merger (including Terminating
Company Restricted Stock Consideration); (C) impedes or delays the consummation of the Merger or (D) from and after the adoption
of the Merger Agreement by the holders of Shares, requires further approval of the Company’s stockholders under the DGCL (as defined
below) (each of the foregoing, an “Adverse Amendment”) and (ii) each Stockholder shall remain free to vote (or
execute proxies with respect to) its Subject Shares with respect to any matter not covered by Section 1.01(a) in any manner
such Stockholder deems appropriate.
(c) Proxies.
Other than (i) for the purposes of voting its Subject Shares consistent with this Agreement, (ii) the granting of proxies to
vote Subject Shares to an Affiliate of such Stockholder as a Permitted Transfer and (iii) the granting of proxies to vote Subject
Shares with respect to the election of directors, ratification of the appointment of the Company’s auditors at the Company’s
annual meeting or special meeting of stockholders, and other routine matters at the Company’s annual meeting or any special meeting,
in either case, to the extent such matters are not (x) inconsistent with the obligations contemplated by the Merger Agreement or
this Agreement or (y) related to the transactions contemplated by the Merger Agreement or this Agreement, each Stockholder shall
not, directly or indirectly, grant any Person any proxy (revocable or irrevocable), power of attorney or other authorization with respect
to the voting of any of such Stockholder’s Subject Shares.
Article 2
Representations and Warranties of Stockholders
Each Stockholder represents and warrants to Parent
that:
Section 2.01. Corporate
Authorization; Binding Agreement. The execution, delivery and performance by such Stockholder of this Agreement and the consummation
by such Stockholder of the transactions contemplated hereby are within the organizational powers of such Stockholder and have been duly
authorized by all necessary action on the part of such Stockholder. This Agreement constitutes a legal, valid and binding Agreement of
such Stockholder, enforceable against such Stockholder in accordance with its terms, subject, in
the case of enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting
creditors’ rights generally and general principles of equity. The Person signing this Agreement on behalf of such Stockholder
has full power and authority to enter into and perform this Agreement. Other than as provided in
the Merger Agreement and except for any filings by such Stockholder with the SEC, the execution, delivery and performance by such Stockholder
of this Agreement does not require any action by or in respect of, or any notice, report or other filing by such Stockholder with or to,
or any consent, registration, approval, permit or authorization from, any Governmental Authority, other than any actions or filings the
absence of which would not reasonably be expected to, individually or in the aggregate, materially prevent, delay or impair or otherwise
adversely impact such Stockholder’s ability to perform its obligations hereunder.
Section 2.02. Non-Contravention.
The execution, delivery and performance by such Stockholder of this Agreement and the performance
of its obligations contemplated hereby do not and will not (i) if such Stockholder is
an entity, violate the certificate of incorporation or bylaws (or other comparable organizational documents) of such
Stockholder, (ii) violate any Applicable Law applicable to such Stockholder,
(iii) require any consent, payment, notice to, or other action by any Person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration or to a loss of any benefit to which such Stockholder
is entitled under any provision of any agreement or other instrument binding on such Stockholder
or (iv) result in the creation or imposition of any Lien on any asset of such Stockholder;
except, with respect to clauses (ii), (iii) and (iv), as would not reasonably be expected to,
individually or in the aggregate, materially prevent, delay or impair or otherwise adversely impact such Stockholder’s ability to
perform its obligations hereunder.
Section 2.03. Ownership
of Shares. Such Stockholder is beneficial owner of, and has voting control over, its
Subject Shares, free and clear of any Liens or any restriction on the right to vote or otherwise dispose of its Subject Shares. Such Stockholder
has, and will have at all times during the term of this Agreement, the right to vote and direct
the vote of, and to dispose of and direct the disposition of, such Stockholder’s Subject Shares, and there are no Contracts of any
kind, contingent or otherwise, obligating such Stockholder to Transfer, or cause to be Transferred, any of its Subject
Shares, and no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such Stockholder’s
Subject Shares. Except for this Agreement, none of such Stockholder’s Subject Shares are subject to any voting agreement, voting
trust or other agreement or arrangement, including any proxy, consent or power of attorney that are inconsistent with such
Stockholder’s obligations pursuant to this Agreement.
Section 2.04. Total
Shares. As of the date hereof, except for its Subject Shares set forth on Schedule A hereto and its Additional Advent Shares,
such Stockholder does not beneficially own any Company Securities.
Section 2.05. No
Other Representations. Such Stockholder acknowledges and agrees that other than the representations expressly set forth in this Agreement,
Parent has not made, and is not making, any representations or warranties to such Stockholder with respect to Parent, the Merger Agreement
or any other matter. Such Stockholder hereby specifically disclaims reliance upon any representations or warranties (other than the representations
expressly set forth in this Agreement).
Section 2.06. Absence
of Litigation. Such Stockholder represents that there is no Action pending or, to the knowledge of such Stockholder, threatened against
or affecting (i) such Stockholder or any of its properties or assets (including such Stockholder’s Subject Shares) or (ii) any
of its controlled Affiliates or any of their respective properties or assets, in each case before (or, in the case of threatened Actions,
that would be before) or by any Governmental Authority or arbitrator that would reasonably be expected to, individually or in the aggregate,
materially prevent, delay or impair or otherwise materially and adversely impact such Stockholder’s ability to perform its obligations
hereunder or on a timely basis; provided that such Stockholder makes no representations or warranties regarding any Action involving
the Company or relating to the Merger Agreement.
Section 2.07. Finder’s
Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Parent or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on behalf of such Stockholder in such Stockholder’s
capacity as such.
Article 3
Representations and Warranties of Parent
Parent represents and warrants to each Stockholder
as follows:
Section 3.01. Corporation
Authorization. The execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby are within the corporate powers of Parent and have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of Parent, enforceable against Parent in accordance with
its terms, subject, in the case of enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws affecting creditors’ rights generally and general principles of equity.
Section 3.02. No
Other Representations. Parent acknowledges and agrees that other than the representations expressly set forth in this Agreement, each
Stockholder has not made, and is not making, any representations or warranties to Parent with respect to such Stockholder, the Merger
Agreement or any other matter. Parent hereby specifically disclaims reliance upon any representations or warranties (other than the representations
expressly set forth in this Agreement).
Article 4
Covenants of Stockholders
Each Stockholder hereby covenants and agrees that:
Section 4.01. No
Proxies for or Encumbrances on Subject Shares.
(a) Except
pursuant to the terms of this Agreement or as contemplated by the Merger Agreement, such Stockholder shall not, without the prior written
consent of Parent, directly or indirectly, (i) grant any proxies, powers of attorney, or any
other authorizations or consents, or enter into any voting trust or other agreement or arrangement with respect to the voting of
any Subject Shares, (ii) sell, assign, transfer, encumber or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of (including by
gift, and whether by merger, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise,
and including pursuant to any derivative transaction), any Subject Shares (or any beneficial ownership therein or portion thereof) during
the term of this Agreement or consent to any of the foregoing (each, a “Transfer” (which defined term includes derivations
of such defined term)), (iii) otherwise permit any Liens to be created on any of such
Stockholder’s Subject Shares or (iv) enter into any Contract with respect to the direct
or indirect Transfer of any of such Stockholder’s Subject Shares; provided that
nothing herein shall prohibit a Transfer of Subject Shares to an Affiliate of such Stockholder
(a “Permitted Transfer”); provided further, that, any Permitted Transfer shall be permitted only if, as a precondition
to such Transfer, the transferee agrees in writing, reasonably satisfactory in form and substance to Parent and the Company, to assume
all of the obligations of such Stockholder under, and be bound by the terms of, this Agreement,
by executing and delivering a joinder agreement in form and substance reasonably satisfactory to Parent and the Company.
Any Transfer in violation of this Section 4.01(a) shall be null and void ab initio. Such Stockholder hereby agrees that
this Agreement and the obligations hereunder shall attach to such Stockholder’s Subject
Shares and shall be binding upon any Person to which legal or beneficial ownership shall pass, whether by operation of law or otherwise
including its successors or permitted assigns and if any involuntary Transfer of any of such Stockholder’s
Subject Shares shall occur (including a sale by such Stockholder’s trustee in any bankruptcy,
or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all
transferees and subsequent transferees of the initial transferee) shall take and hold such Stockholder’s
Subject Shares subject to all of the restrictions, liabilities and rights under this Agreement as such Stockholder
for all purposes hereunder. Each Stockholder authorizes the Company to impose stop orders to prevent the Transfer of any of such Stockholder’s
Subject Shares in violation of this Agreement.
(b) In
the event that any Stockholder intends to undertake a Permitted Transfer during the term of this Agreement of any Subject Shares, such
Stockholder shall provide prior notice thereof to the Company and Parent, and Parent shall
authorize the Company to, or authorize the Company to instruct its transfer agent to, (a) lift any stop order in respect of its Subject
Shares to be so Transferred in order to effect such Permitted Transfer only upon receipt of written certification by Parent and the Company
that the written joinder agreement entered into by the transferee agreeing to be bound by this Agreement pursuant to Section 4.01(a) hereof
is satisfactory to Parent and the Company and (b) re-enter any stop order in respect of its Subject Shares to be so Transferred upon
completion of the Permitted Transfer.
Section 4.02. Other
Offers.
(a) Such
Stockholder shall not, and shall not authorize, allow or permit any of its Representatives (other than non-officer employees) to (and
shall use reasonable best efforts to cause its non-officer employees to not), directly or indirectly, (i) solicit, initiate or knowingly
take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into, engage in or participate
in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford
access to the business, properties, assets, books, records work papers and other documents related to the Company or any of its Subsidiaries
to, otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third
Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into any agreement in principle, letter of intent,
indication of interest, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to
an Acquisition Proposal or (iv) agree to do any of the foregoing. Such Stockholder shall, and shall instruct its Representatives
to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third
Party (or any Representatives of any Third Party) conducted prior to the date hereof with respect to any Acquisition Proposal made by
such Third Party. If such Stockholder receives an Acquisition Proposal that is not also addressed to the Company or one of its other Representatives
(or if the Company or one of its other Representatives is not copied on any such Acquisition Proposal), then such Stockholder shall provide
such Acquisition Proposal (if in written form (including, for the sake of clarity, in any e-mails or other electronic communications)
or all material details of such Acquisition Proposal, if not in written form) to the Company promptly after receipt thereof and direct
the Person submitting any such Acquisition Proposal to such Stockholder to comply with the requirements of Section 6.03 of the Merger
Agreement in respect thereof.
(b) Notwithstanding
anything to the contrary in this Agreement, such Stockholder and its Affiliates and Representatives shall be entitled to engage in discussions
and negotiations with respect to entering into a voting and support agreement (or other similar agreement) with any Person that would
be entered into at any time after the termination of this Agreement, or any preparations therefor, in each case, in connection with an
Acquisition Proposal or a Superior Proposal to the extent that the Company is permitted to engage in discussions and negotiations (and
otherwise cooperate with) or assist and participate in and facilitate any effort by any such Person or any preparations therefor in accordance
with Section 6.03 of the Merger Agreement. Furthermore, this Agreement shall not restrict the ability of such Stockholder to review
any Acquisition Proposal or Superior Proposal received by the Company and shared with such Stockholder and, solely to the extent that
the Board of Directors (or any duly authorized committee thereof) has made the determinations set forth in Section 6.03 of the Merger
Agreement to the extent permitted by the Merger Agreement, to discuss and confirm to the Company the willingness of such Stockholder to
support and sign a voting and support agreement (or other similar agreement) with respect to such Acquisition Proposal or Superior Proposal
in the event this Agreement is terminated in accordance with Section 5.04.
Section 4.03. Directors
and Officers. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall limit or restrict such
Stockholder (or a designee of such Stockholder) who is a director or officer of the Company from acting in such capacity or fulfilling
the obligations of such office (including, for the avoidance of doubt, exercising his or her fiduciary duties), including by voting, in
his or her capacity as a director or officer of the Company, in such Stockholder’s (or its designee’s) sole discretion on
any matter (it being understood that this Agreement shall apply to such Stockholder solely in such Stockholder’s capacity as a stockholder
of the Company), including with respect to Section 6.03 of the Merger Agreement. In this regard, such Stockholder shall not be deemed
to make any agreement or understanding in this Agreement in such Stockholder’s capacity as a director or officer of the Company.
The representations, warranties, covenants and agreements made herein by such Stockholder are made solely with respect to such Stockholder
and its Subject Shares. This Agreement shall not limit, affect or prohibit, or be construed to limit, affect or prohibit, any actions
taken, or required or permitted to be taken, by any Affiliate or Representative of such Stockholder or any of its Affiliates in any other
capacity (other than as a stockholder of the Company), including, if applicable, as an officer or director of the Company or any of its
Subsidiaries, and any actions taken whatsoever, or failure to take any actions whatsoever, by any of the foregoing persons in such capacity
as director or officer of the Company or any of its Subsidiaries shall not be deemed to constitute a breach of this Agreement.
Section 4.04. Appraisal
Rights. Such Stockholder hereby irrevocable waives and agrees not to exercise any rights (including under Section 262 of the
General Corporation Law of the State of Delaware) it may have to demand appraisal, dissent or any similar or related matter with respect
to any Subject Shares that may arise with respect to the Merger. Notwithstanding the foregoing, (a) nothing in this Section 4.04
shall constitute, or be deemed to constitute, a waiver or release by such Stockholder of any claim or cause of action against Parent to
the extent arising out of a breach of this Agreement by Parent and (b) the waiver contained in this Section 4.04 shall be of
no force or effect in the event this Agreement is terminated.
Section 4.05. Actions.
Such Stockholder hereby agrees not to commence or pursue any Action or claim, whether derivative or otherwise, against Parent, the Company
or any of their respective Affiliates, or their respective boards of directors or members thereof or officers, relating to the negotiation,
execution or delivery of this Agreement or the Merger Agreement, or the consummation of the transactions contemplated thereby, including
any such claim (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging
a breach of any fiduciary duty of the Board of Directors in connection with the Merger Agreement or the transactions contemplated thereby,
and such Stockholder hereby agrees to take all actions necessary to opt out of any class in any class action relating to the foregoing;
provided that the foregoing shall not limit any actions taken by such Stockholder in response to any claims commenced against such
Stockholder, its Affiliates or its Representatives; provided further that this Section 4.05 shall not be deemed a waiver of
any rights of such Stockholder or its Affiliates for any breach of this Agreement by Parent, the Company or any of their respective Affiliates.
Section 4.06. Adverse
Actions. Such Stockholder hereby covenants and agrees that such Stockholder shall not, at any time prior to the Expiration Date enter
into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying,
its obligations pursuant to this Agreement.
Section 4.07. Adjustments.
In the event of any stock split, stock dividend or distribution, reorganization, recapitalization, readjustment, reclassification, combination,
exchange of shares or the like of the capital stock of the Company on, of or affecting the Subject Shares, then the terms of this Agreement
shall apply to the Company Securities received in respect of the Subject Shares by such Stockholder immediately following the effectiveness
of the events described in this Section 4.07, as though they were Subject Shares hereunder.
Section 4.08. Disclosure.
Parent will not make any disclosures regarding any Stockholder in any press release or otherwise without the prior written consent of
such Stockholder (such approval not to be unreasonably withheld, conditioned or delayed), unless Parent (i) determines in good faith
(after consultation with outside legal counsel) that any such disclosure is required by Applicable Law or any listing agreement with or
rule of any national securities exchange or association or by any filing required to be made with the SEC and (ii) notifies
such Stockholder three Business Days in advance of any such disclosure.
Article 5
Miscellaneous
Section 5.01. Other
Definitional and Interpretative Provisions. Unless specified otherwise, in this Agreement the obligations of any party consisting
of more than one person are joint and several. The words “hereof”, “herein” and “hereunder” and words
of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
References to Schedules are to Schedules of this Agreement unless otherwise specified. All Schedules annexed hereto or referred to herein
are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule
but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are
in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed
to refer to such statute as amended from time to time and, if applicable, to any rules, regulations or interpretations promulgated thereunder.
References to any agreement or contract are to that agreement or contract as amended, modified, supplemented, extended or renewed from
time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of
that Person. References to a “party” or the “parties” means a party or the parties to this Agreement unless the
context otherwise requires. References from or through any date mean, unless otherwise specified, from and including or through and including,
respectively. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and each has been represented
by counsel of its choosing and, in the event of an ambiguity or question of intent or interpretation arises, this Agreement will be construed
as if drafted jointly by such parties and no presumption or burden of proof will arise favoring or disfavoring any party due to the authorship
of any provision of this Agreement. Further, prior drafts of this Agreement or any Transaction Documents or the fact that any clauses
have been added, deleted or otherwise modified from any prior drafts of this Agreement or any Transaction Documents will not be used as
an aide of construction or otherwise constitute evidence of the intent of the Parties, and no presumption or burden of proof will arise
favoring or disfavoring any Party by virtue of any such prior drafts.
Section 5.02. No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating to the Subject Shares
shall remain vested in and belong to the relevant Stockholder, and Parent shall have no authority to exercise any power or authority to
direct such Stockholder in the voting or disposition of any of the Subject Shares, except as otherwise provided herein.
Section 5.03. Notices.
All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed properly delivered,
given and received: (a) if delivered by hand, when delivered; (b) if sent by registered, certified or first class mail, the
third Business Day after being sent; (c) if sent by overnight delivery via a national courier service, two Business Days after being
delivered to such courier; and (d) if sent by email, when sent, provided that the sender of such email does not receive a
written notification of delivery failure. All notices, requests and other communications hereunder shall be delivered to the address or
email address set forth beneath the name of such party below (or to such other such other address or email address as such party may hereafter
specify for the purpose by notice in accordance with this Section to the other parties hereto):
if to Parent, to:
Xxxxxxxx Soup Company
0 Xxxxxxxx Xxxxx
Camden, New Jersey 08103-1799
Attention: General Counsel
with a copy (which shall not constitute notice)
to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Xxxxxx Xxxxx
Email: xxxx.xxxxxxx@xxxxxxxxx.xxx
xxxxxx.xxxxx@xxxxxxxxx.xxx
if
to a Stockholder, to the address set forth on Schedule A opposite the name of such Stockholder, with a copy to (which shall
not constitute notice) to:
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Dallas, TX 75201-6950
Attention: Xxxxx X. Xxxxxxx
Email: xxxxx.xxxxxxx@xxxx.xxx
and
Xxxxx Lovells US LLP
000 Xxxx Xxxxxx
Suite 200
Attention: Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Email: xxxxxxx.xxxxxx@xxxxxxxxxxxx.xxx
xxxxx.xxxxx@xxxxxxxxxxxx.xxx
Section 5.04. Amendments;
Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver
is to be effective. This Agreement shall terminate upon the earlier of (i) the Effective Time, (ii) the termination of the Merger
Agreement in accordance with its terms, (iii) the mutual written agreement of each party to this Agreement, (iv) the effectiveness
of any Adverse Amendment and (v) the occurrence of any Adverse Recommendation Change with respect to an Intervening Event (any such
date under clauses (i) through (v) being referred to herein as the “Expiration Date”). Notwithstanding the
foregoing, the provisions set forth in this Article 5 shall survive the termination of this Agreement.
Section 5.05. Expenses.
All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
Section 5.06. Successors
and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of the other parties hereto.
Section 5.07. Governing
Law. This Agreement, including any claims or causes of action (whether in contract, tort or statute) that may be based upon, arise
out of or relate to this Agreement, or the negotiation, execution or performance thereof or the transactions contemplated hereby, shall
be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of
such state.
Section 5.08. Jurisdiction.
The parties hereto agree that any action, suit or legal proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates
or against any party or any of its Affiliates) shall be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction,
any federal court located in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably consents
to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or legal proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue
of any such action, suit or legal proceeding in any such court or that any such action suit or legal proceeding brought in any such court
has been brought in an inconvenient forum. Process in any such action, suit or legal proceeding may be served on any party anywhere in
the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 5.03 shall be deemed effective service of process on such party.
Section 5.09. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.10. Counterparts;
Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument, it being understood that the parties need not sign the same counterpart.
Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery,
an “Electronic Delivery”), will be treated in all manner and respects as an original executed counterpart and will
be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. This Agreement
shall become effective when each party hereto shall have received a counterpart hereof signed (including by electronic signature) by all
of the other parties hereto. Until and unless each party has received a counterpart hereof signed (including by electronic signature)
by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue
of any other oral or written agreement or other communication). No party may raise the use of an Electronic Delivery to deliver a signature,
or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as
a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to
lack of authenticity.
Section 5.11. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority
to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions
contemplated hereby, taken as a whole, is not affected in any manner materially adverse to any party. Upon such a determination, 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 an
acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 5.12. Specific
Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof, and that money damages, even if available, would not be an adequate remedy, and that the parties shall
be entitled (without proof of actual damages and without being required to prove that money damages are an inadequate remedy) to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions hereof in
the courts referred to in Section 5.08, in addition to any other remedy to which they may be entitled at law or in equity. The parties
further agree to (a) waive any requirement for the securing or posting of any bond in connection with such remedy, and that such
remedy shall be in addition to any other remedy to which a party is entitled at law or in equity and (b) not assert that a remedy
of specific performance or an injunction is unenforceable, invalid, contrary to law or inequitable for any reason.
Section 5.13. Non-Recourse.
This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this
Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified
as parties hereto and no former, current or future equity holders, controlling persons, directors, officers, employees, agents or Affiliates
of any party hereto or any former, current or future stockholder, controlling person, director, officer, employee, general or limited
partner, member, manager, agent or Affiliate or any of the foregoing (each, a “Non-Recourse Party”) shall have any
liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise)
based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any representations made or alleged to
be made in connection herewith. Without limiting the rights of any party against the other parties hereto, in no event shall any party
or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover
monetary damages for breach of this Agreement from, any Non-Recourse Party.
Section 5.14. Defined
Terms.
(a) Any
capitalized term that is used, but not defined, in this Agreement has the meaning set forth in the Merger Agreement.
(b) “beneficial
ownership” and “beneficially own” and similar terms have the meaning set forth in Rule 13d-3 under the
U.S. Securities Exchange Act of 1934.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
| |
XXXXXXXX SOUP COMPANY |
| |
|
| |
By: |
/s/ Xxxx X. Xxxxxx |
| |
|
Name: |
Xxxx X. Xxxxxx |
| |
|
Title: |
President and Chief Executive Officer |
[Signature Page to Voting and Support Agreement]
ADVENT INTERNATIONAL GPE VIII LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-B LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-B-1 LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-B-2 LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-B-3 LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-C LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-D LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-F LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-H LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-I LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-J LIMITED PARTNERSHIP
By: GPE VIII GP S.à x.x., its general partner
| By: Advent International GPE VIII, LLC, its manager |
/s/ Xxxxxxx Xxxxxx |
| |
Xxxxxxx Xxxxxx, manager |
By: Advent International, L.P., its manager
By: Advent International GP, LLC, its general partner
| By: |
/s/ Xxxx Xxxxxxxx |
|
| |
Name: |
Xxxx Xxxxxxxx |
|
| |
Title: |
Vice President of Finance |
|
[Signature Page to
Voting and Support Agreement]
ADVENT INTERNATIONAL GPE VIII-A LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-E LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-G LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-K LIMITED PARTNERSHIP
ADVENT INTERNATIONAL GPE VIII-L LIMITED PARTNERSHIP
By: GPE VIII GP Limited Partnership, General Partner
By: Advent International GPE VIII, LLC, General Partner
By: Advent International, L.P., Manager
By: Advent International GP, LLC, General Partner
| By: |
/s/ Xxxx Xxxxxxxx |
|
| |
Name: |
Xxxx Xxxxxxxx |
|
| |
Title: |
Vice President of Finance |
|
[Signature Page to
Voting and Support Agreement]
ADVENT PARTNERS GPE VIII LIMITED PARTNERSHIP
ADVENT PARTNERS GPE VIII-A LIMITED PARTNERSHIP
ADVENT PARTNERS GPE VIII CAYMAN LIMITED PARTNERSHIP
ADVENT PARTNERS GPE VIII-A CAYMAN LIMITED PARTNERSHIP
ADVENT PARTNERS GPE VIII-B CAYMAN LIMITED PARTNERSHIP
By: AP GPE VIII GP Limited Partnership, General Partner
By: Advent International GPE VIII, LLC, General Partner
By: Advent International, L.P., Manager
By: Advent International GP, LLC, General Partner
| By: |
/s/ Xxxx Xxxxxxxx |
|
| |
Name: |
Xxxx Xxxxxxxx |
|
| |
Title: |
Vice President of Finance |
|
NOOSA HOLDCO, L.P.
By: Noosa GP, Inc., its general partner
| /s/Xxxx Xxxxxx |
|
| Name: |
Xxxx Xxxxxx |
|
| Title: |
President |
|
