EXCHANGE
AND
STOCKHOLDERS' AGREEMENT
dated as of June 25, 1997
by and among
NORTH ATLANTIC TRADING COMPANY, INC.
(formerly named North Atlantic Trading Acquisition Company, Inc.)
and
THE STOCKHOLDERS NAMED HEREIN
TABLE OF CONTENTS
Page
----
ARTICLE 1
EXCHANGE AND PURCHASE OF MEMBERSHIP
INTERESTS FOR SHARES .................... 2
1.1 Exchange of Membership Interests for Shares ................. 2
1.2 Bollore Restrictions ........................................ 5
1.3 Indemnification ............................................. 7
1.4 Closing ..................................................... 8
1.5 Proceedings ................................................. 8
1.6 Delivery of Documents ....................................... 8
ARTICLE 2
MANAGEMENT ......................... 8
2.1 Board of Directors .......................................... 8
2.2 Transaction Approval ........................................ 9
ARTICLE 3
TRANSFERS OF SHARES .................... 10
3.1 General Restrictions ........................................ 10
3.2 Permitted Transfers ......................................... 10
ARTICLE 4
REPURCHASE OF SHARES .................... 11
4.1 Death of a Principal ........................................ 11
4.2 Termination, Bankruptcy or Transfer of Stockholders ......... 11
4.3 Repurchase Price, Closing and Terms of Payment .............. 12
4.4 No Right of Employment ...................................... 12
4.5 Prohibition of Repurchase ................................... 12
(i)
ARTICLE 5
CERTAIN RIGHTS AND OBLIGATIONS TO TRANSFER SHARES ...... 13
5.1 Tag-Along Right ............................................... 13
5.3 Registration Rights ........................................... 14
ARTICLE 6
RESTRICTIVE ENDORSEMENTS ................... 15
6.1 Restrictive Endorsements ...................................... 15
ARTICLE 7
DEFINITIONS ......................... 16
ARTICLE 8
MISCELLANEOUS ........................ 20
8.1 Waiver of Default ............................................. 20
8.2 Amendment ..................................................... 21
8.3 No Third Party Rights ......................................... 21
8.4 Severability .................................................. 21
8.5 Binding Agreement ............................................. 21
8.6 Headings ...................................................... 21
8.7 Word Meanings ................................................. 21
8.8 Counterparts .................................................. 22
8.9 Entire Agreement .............................................. 22
8.10 Arbitration ................................................... 22
8.11 Governing Law; Consent to Jurisdiction and Venue .............. 23
SCHEDULE 1
SCHEDULE 2
ANNEX 1
(ii)
EXCHANGE AND STOCKHOLDERS' AGREEMENT
THIS EXCHANGE AND STOCKHOLDERS' AGREEMENT is made and entered into as of
the 25th day of June, 1997, by and among NORTH ATLANTIC TRADING COMPANY, INC., a
Delaware corporation formerly named North Atlantic Trading Acquisition Company,
Inc. (the "Company"), and the Persons executing this Agreement on the signature
pages hereto and identified thereon as a stockholder (together with any Persons
who may hereafter become a stockholder party hereto as provided herein, the
"Stockholders" or, individually, a "Stockholder").
WHEREAS, on the date hereof, the Company is authorized to issue 13,500,000
shares of capital stock consisting of (i) 12,000,000 shares of Senior PIK
Preferred Stock, par value $.01 per share (the "Preferred Stock"), (ii) 750,000
shares of Voting Common Stock, par value $.01 per share (the "Voting Common
Stock"), and (iii) 750,000 shares of Non-Voting Common Stock, par value $.01 per
share (the "Non-Voting Common Stock" and, together with the Voting Common Stock,
the "Common Stock"); and
WHEREAS, certain of the Stockholders hold membership interests in NTC
Holding, LLC, a Delaware limited liability company ("LLC"), as set forth
opposite their respective names on Schedule 1 attached hereto and, on the date
hereof, wish to exchange (the "Exchange") such membership interests for the
respective numbers of shares of Voting Common Stock set forth or indicated
opposite their respective names on Part A. of Schedule 2 attached hereto; and
WHEREAS, certain of the Stockholders are purchasing shares of Common Stock
from the Company for cash on the date hereof (the "Purchase"), which
Stockholders and number of shares purchased are listed on Part B. of Schedule 2
attached hereto; and
WHEREAS, certain of the Stockholders hold options to purchase shares of
Common Stock, which Stockholders and number of shares subject to such options
are listed on Part C. of Schedule 2 attached hereto; and
WHEREAS, following the Exchange and the Purchase, to provide continuity of
management and ownership of the Company, the Stockholders desire to restrict the
transfer and provide for the purchase or sale of the shares of Common Stock or
shares of Common Stock subject to options owned by them (collectively, the
"Shares") under certain conditions and to provide for certain other rights and
obligations with respect to the Shares, all in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
EXCHANGE AND PURCHASE OF MEMBERSHIP
INTERESTS FOR SHARES
1.1 Exchange of Membership Interests for Shares.
(a) On the date hereof, (i) each of the Stockholders listed on Schedule 1
attached hereto (an "Exchanging Stockholder") hereby transfers and assigns to
the Company all of such Exchanging Stockholder's right, title and interest in
and to such Exchanging Stockholder's membership interests in the LLC as set
forth opposite such Exchanging Stockholder's name on Schedule 1 attached hereto
and (ii) the Company hereby agrees to issue and deliver to each Exchanging
Stockholder and/or such other Persons as are indicated on Schedule 1 hereto the
number of Shares set forth or indicated opposite such Exchanging Stockholder's
name on Part A. of Schedule 2 hereto in exchange for the transfer and assignment
of such Exchanging Stockholder's membership interests.
(b) On the date hereof, each of the Stockholders listed on Part B. of
Schedule 2 attached hereto identified as purchasing Shares from the Company (a
"Purchasing Stockholder") hereby purchases the number of Shares set forth
opposite such Purchasing Stockholder's name on Part B. of Schedule 2 identified
as being purchased from the Company, and shall pay to the Company the purchase
price therefor as set forth on Part B. of Schedule 2 by wire transfer of
immediately available funds to such account as shall be designated in writing by
the Company to such Purchasing Stockholder, and (ii) the Company hereby agrees
to issue and deliver to each Purchasing Stockholder the number of Shares set
forth opposite such Purchasing Stockholder's name on Part B. of Schedule 2
against delivery of the purchase price therefor.
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(c) Each of the Exchanging Stockholders and each of the Purchasing
Stockholders represents and warrants to the Company as follows:
(i) Such Stockholder has obtained, to the extent it deems necessary,
professional advice with respect to the risks inherent in the Exchange or
Purchase of the securities described in Section 1.1(a) or 1.1(b), as
applicable, and the suitability of the securities to be received by such
Stockholder pursuant to the Exchange or Purchase in light of such
Stockholder's financial condition and investment needs;
(ii) Such Stockholder, either alone or with the assistance of its own
professional advisor, has such knowledge and experience in financial and
business matters that such Stockholder is capable of evaluating the merits
and risks inherent in securities to be received by such Stockholder
pursuant to the Exchange or Purchase, as applicable, and such Stockholder
has the net worth to undertake such risk;
(iii) Such Stockholder is aware of the Company's business affairs and
financial condition, has reviewed the Offering Memorandum of the Company
dated June 18, 1997 with respect to the Company's sale of 11% Senior Notes
due 2004 or the Offering Memorandum of the Company dated June 18, 1997 with
respect to the Company's sale of Units consisting of Preferred Stock and
warrants to purchase Common Stock (either such Offering Memorandum being
referred to as the "Offering Memorandum"), and has acquired sufficient
additional information about the Company to reach an informed and
knowledgeable decision regarding the merits and risks of investing in the
securities to be received by such Stockholder pursuant to the Exchange or
Purchase, as applicable. Such Stockholder has had ample opportunity to ask
questions of the Company and its representatives and to seek independent
investment, tax, and legal advice prior to investing in the securities to
be received by such Stockholder pursuant to the Exchange or Purchase, as
applicable;
(iv) Such Stockholder believes that the securities to be received by
such Stockholder pursuant to the Exchange or Purchase, as applicable, are
suitable for such Stockholder based upon such Stockholder's investment
objectives and financial needs, and such Stockholder has adequate means for
providing its current financial needs and personal contingencies and has no
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need for liquidity of investment with respect to the securities to be
received by such Stockholder pursuant to the Exchange or the Purchase;
(v) Such Stockholder is in a financial position to hold the securities
to be received by such Stockholder pursuant to the Exchange or Purchase, as
applicable, for an indefinite period of time and such Stockholder is able
to bear the economic risk and withstand a complete loss of such
Stockholder's investment in the securities to be received by it pursuant to
the Exchange or the Purchase;
(vi) Such Stockholder is not acquiring any securities to be received
by such Stockholder pursuant to the Exchange or Purchase, as applicable,
with a view to any distribution thereof in a transaction that would violate
the Securities Act or the securities laws of any State of the United States
or any other applicable jurisdiction; and
(vii) Such Stockholder understands that the securities to be received
by such Stockholder pursuant to the Exchange or Purchase, as applicable,
will be issued by the Company without registration under the Securities Act
and without qualification and/or registration under applicable state
securities laws ("Blue Sky Laws") pursuant to exemptions from registration
and/or qualification contained in the Securities Act and in the Blue Sky
Laws. Such Stockholder understands that the securities must be held
indefinitely unless (A) subsequently registered and/or qualified under the
Securities Act and under the Blue Sky Laws unless exemptions from the
registration and/or qualification requirements under the Securities Act and
under the Blue Sky Laws are available in connection with any proposed
Transfer of the securities by such Stockholder and (B) the proposed
Transfer is permitted under the terms of this Agreement.
(d) Each Stockholder agrees that none of the securities of the Company to
be received by such Stockholder pursuant to the Exchange, the Purchase or the
exercise of options, as the case may be, nor any interest in any such
securities, will be resold or otherwise transferred by such Stockholder without
registration and/or qualification under the Securities Act and the Blue Sky Laws
unless such Stockholder first demonstrates to the satisfaction of the Company
that specific exemptions from such registration and/or qualification
requirements are available with respect to the proposed Transfer and, if
requested by the Company, such Stockholder provides the
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Company with an opinion of counsel satisfactory to the Company that the proposed
Transfer may be made without violation of the Securities Act or the Blue Sky
Laws.
(e) Each Exchanging Stockholder represents and warrants that the membership
interests being transferred by such Stockholder pursuant to the Exchange are
being transferred free and clear of any lien, pledge or encumbrance whatsoever.
1.2 Bollore Restrictions. In view of the obligations of the Company under
its distribution agreements Bollore Technologies, S.A., each of the Stockholders
agrees to the following provisions:
(a) Each of the Stockholders represents and warrants as follows:
(i) Neither such Stockholder, nor any of such Stockholder's
Affiliates, directly or indirectly, manufactures, sells, markets,
distributes or otherwise promotes cigarette paper booklets in the United
States (including the District of Columbia and its territories, possessions
and foreign military bases), Canada, Hong Kong, Singapore, Dubai, Qatar,
Oman or Jordan.
(ii) Neither such Stockholder, nor any of such Stockholder's
Affiliates, (x) directly or indirectly, owns any Equity Interest in any
Entity that, directly or indirectly manufactures, sells, markets
distributes or otherwise promotes cigarette paper or paper booklets in the
United States (including the District of Columbia and its territories,
possessions and foreign military bases), Canada, Hong Kong, Singapore,
Dubai, Qatar, Oman or Jordan); or (y) owns, directly or indirectly, 20% or
more of an Equity Interest in any other Entity which, directly or
indirectly, manufactures, sells, markets, distributes or otherwise promotes
the sale of cigarette booklets in the United States (including the District
of Columbia and its territories, possessions and foreign military bases),
Canada, Hong Kong, Singapore, Dubai, Qatar, Oman or Jordan; except for the
ownership of less than 10% of any Equity Interest of a company whose
securities are publicly traded on a national securities exchange or a
recognized over-the-counter or similar public market and less than 10% of
whose assets and revenues are derived from manufacturing, selling,
distributing, marketing or otherwise promoting cigarette paper booklets in
the United States (including the District of Columbia and its territories,
possessions and foreign military bases), Canada, Hong Kong, Singapore,
Dubai, Qatar, Oman or Jordan.
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(iii) Neither such Stockholder, nor any of such Stockholder's
Affiliates has the right to appoint a majority of the members of the Board
of Directors of any Entity that, directly or indirectly, manufactures,
sells, markets, distributes or otherwise promotes cigarette paper or paper
booklets in the United States (including the District of Columbia and its
territories, possessions and foreign military bases), Canada, Hong Kong,
Singapore, Dubai, Qatar, Oman or Jordan or the Parent of such Entity
(b) Each Stockholder covenants that such Stockholder shall not and shall
cause such Stockholder's Affiliates not to do the following:
(i) directly or indirectly take any actions that would make or cause
its representations and warranties set forth in Section 1.1(c) to become
untrue; and
(ii) transfer any Shares or any other Equity Interest in the Company
to any Entity which at the time of such transfer, (x) directly or
indirectly, manufactures, sells, markets, distributes or otherwise promotes
cigarette paper or cigarette paper booklets in the United States (including
the District of Columbia and its territories, possessions and foreign
military bases), Canada, Hong Kong, Singapore, Dubai, Qatar, Oman or
Jordan, other than a transfer of such Equity Interest pursuant to the
Securities Act of 1933, as amended, or Rule 144 promulgated thereunder
(provided that such offering is not being effected for the purpose of
transferring such Equity Interest to an Entity that, directly or
indirectly, manufactures, sells, markets or otherwise promotes cigarette
paper or paper booklets in the United States (including the District of
Columbia and its territories, possessions and foreign military bases),
Canada, Hong Kong, Singapore, Dubai, Qatar, Oman or Jordan); or (y) owns,
directly or indirectly, 20% or more of an Equity Interest in any other
Entity which, directly or indirectly, manufactures, sells, markets,
distributes or otherwise promotes the sale of cigarette paper or cigarette
paper booklets in the United States (including the District of Columbia and
its territories, possessions and foreign military bases), Canada, Hong
Kong, Singapore, Dubai, Qatar, Oman or Jordan or (z) or which serves as a
director or officer or has the right to appoint an officer or director of
the Board of Directors of any Entity that, directly or indirectly,
manufactures, sells, markets distributes or otherwise promotes cigarette
paper or cigarette paper booklets in the United States (including the
District of Columbia and its territories, possessions and foreign
6
military bases), Canada, Hong Kong, Singapore, Dubai, Qatar, Oman or Jordan
or the Parent of such Entity.
(c) Each Stockholder covenants that such Stockholder shall certify in
writing within five (5) days after a request from the Company, that such
Stockholder is not in breach of any of its representations and warrants set
forth in Section 1.2(a).
(d) For Purposes of this Section 1.2, the following terms shall have the
respective meanings set forth below.
"Affiliate" shall mean an Entity that is (i) a director, (ii) a beneficial
holder or record holder, either directly or indirectly through one or more
Subsidiaries, of at least 20% of any class of Equity Interest of the Entity or
(iii) any spouse of the foregoing. For purposes of this definition "beneficial"
holder shall have the meaning set forth in Rule 13d-3 of the Securities and
Exchange Act of 1934.
"Entity" shall mean any person, corporation, partnership or other entity.
"Equity Interest" shall mean the ownership of any class of equity security
of an Entity (whether common or preferred and whether voting or non-voting), any
security that is convertible into any class of equity security of an Entity
(including, but not limited to, any warrant, option, convertible note or
contract right to acquire any equity security) or any partnership or other
equity ownership interest in an Equity.
"Parent" shall mean any Entity which owns directly or indirectly 50% or
more of the Equity Interests of any class of an Entity or of another Parent of
such Entity and/or has the ability to elect a majority of the directors of the
Entity or another Parent of such Entity.
1.3 Indemnification. Each Stockholder hereby agrees to indemnify the
Company and its officers, directors and agents, and hold them harmless from and
against any and all damages suffered and liabilities incurred by them (including
reasonable costs of investigation, defense, and attorneys' fees) arising out of
any breach by such Stockholder of any of the covenants or agreements or any
inaccuracy in the representations or warranties made by such Stockholder in this
Agreement.
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1.4 Closing. The closing of the Exchange and Purchase contemplated by
Section 1.1 (herein referred to as the "Closing") shall take place at the
offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the date hereof.
1.5 Proceedings. All proceedings taken and all documents executed and
delivered by the parties at the Closing shall be deemed taken and executed
simultaneously, and no proceeding shall be deemed taken nor any documents
executed or delivered until all have been taken, executed and delivered.
1.6 Delivery of Documents. At the Closing, the Company shall deliver, or
cause to be delivered, all stock certificates representing Shares to be
delivered by the Company in order to satisfy the provisions of Section 1.1. Each
Exchanging Stockholder agrees to execute and deliver to the Company such
additional instruments of transfer to evidence the Transfer of such
Stockholder's membership interests in the LLC to the Company pursuant to Section
1.1 as the Company may reasonably request.
ARTICLE 2
MANAGEMENT
2.1 Board of Directors.
(a) Subject to the rights of holders of the Preferred Stock or as may
otherwise be agreed upon in writing by the holders of a majority of the Shares,
the Stockholders hereby agree that, at all times after the date hereof, the
Board of Directors shall consist of seven (7) directors. Promptly after the date
hereof, the Stockholders shall take all actions, as necessary, to elect, or to
cause the Board of Directors to approve and appoint, the following persons as
the members of the Board of Directors:
Xxxxxx X. Xxxxx, Xx. Xxxx Xxxxxx
Xxxxx X. Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxxxxxxxx Xxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
8
Thereafter, the members of the Board of Directors will be chosen in accordance
with the Company's Certificate of Incorporation and By-Laws, subject to Section
2.1(b) below in the case of Management Stockholders.
(b) In order to ensure unity among the Management Stockholders and provide
for continuity in management of the Company, each Management Stockholder agrees
to vote all of its Shares of Voting Common Stock with respect to the election or
removal of directors in such manner as such Stockholder may from time to time be
directed in writing by Xxxxxx X. Xxxxx, Xx. ("Xxxxx") and, if any Management
Stockholder fails for any reason to vote such Stockholder's Shares in accordance
with the requirements of this Section 2.1(b), then Xxxxx shall have the right to
vote such Shares of Voting Common Stock as provided in this Section 2.1(b). Each
Management Stockholder hereby constitutes and appoints Xxxxx with full power of
substitution, such Stockholder's true and lawful proxy and attorney-in-fact, to
vote, or to give a written consent with respect to, all of the Shares of Voting
Common Stock owned by the grantor of the proxy for the election of persons to,
or the removal of persons from, the Board of Directors. Each Management
Stockholder acknowledges that the proxy granted hereby is coupled with an
interest and is irrevocable to the full extent permitted by the General
Corporation Law of the State of Delaware. Each such proxy granted under this
Section 2.1(b) shall terminate at such time as the grantor is no longer
obligated to vote such Stockholder's Shares of Voting Common Stock in accordance
with the requirements of this Section 2.1(b) and, in all events, with respect to
any Shares of Voting Common Stock upon the sale of such Shares by such grantor
permitted hereunder pursuant to an effective Registration Statement under the
Securities Act or Rule 144 thereunder. The vote of Xxxxx in accordance with this
Section 2.1(b) shall control in any conflict between the vote of such Shares by
Xxxxx and a vote of such Shares by any such grantor.
2.2 Transaction Approval. Each Stockholder hereby (a) consents to the
Exchange and Purchase and the transactions contemplated thereby and by the
Offering Memorandum, including, without limitation, (i) the change of the
Company's name to North Atlantic Trading Company, Inc., including the adoption
of an amendment to the Company's certificate of incorporation to effect the
same, (ii) the transfer of all of the assets of LLC or any of the NTC Equity
Entities to the Company and any liquidation or dissolution of LLC or any of the
NTC Equity Entities, (iii) the acquisition by NATC Operating of all of the
capital stock of NATC Holding, (v) the merger of NATC Holding into NATC
Operating, and (vi) any other transactions contemplated by the foregoing clause
(i) through (v), and (b) authorizes the taking by the Board of Directors of such
actions as may be necessary in connection with the
9
foregoing transactions, including, without limitation, the entering into, and
performing on behalf of the Company of all documents, instruments and agreements
relating thereto or associated therewith.
ARTICLE 3
TRANSFERS OF SHARES
3.1 General Restrictions.
(a) No Stockholder may Transfer all or any part of the Shares owned by such
Stockholder, except as provided in this Agreement. Any purported Transfer or
purported purchase of any Shares or a portion thereof in violation of the terms
of this Agreement shall be null and void and of no effect. Any transferee
desiring to make a further Transfer shall become subject to all the provisions
of this Article 3 to the same extent and in the same manner as any Stockholder
desiring to make any Transfer.
(b) In the event of any permitted Transfer, the transferee and all
subsequent permitted transferees shall be bound and obligated by, and shall be
entitled to the rights and benefits afforded to a Stockholder under the terms
and provisions of this Agreement. As a condition precedent to any permitted
Transfer by a Stockholder of Shares, each purchaser, transferee or donee (other
than a Stockholder who is already a party hereto) shall agree in writing to be
bound by all of the provisions and conditions of this Agreement and shall become
a Stockholder hereunder, and no such purchaser, transferee or donee shall be
permitted to effect any Transfer of Shares which the transferring Stockholder is
not permitted to make under this Agreement. Any purported Transfer of Shares by
a Stockholder in contravention of this Agreement shall be null and void, and the
Company agrees not to effectuate any such Transfer of Shares.
3.2 Permitted Transfers. (a) Each Stockholder shall have the right to
Transfer all or any part of such Stockholder's Shares, if, and only if such
Transfer has been approved by a majority of the members of the Board of
Directors (excluding any member (or Affiliate thereof) whose Shares are proposed
to be Transferred);
(b) Each Management Stockholder represents that it has caused its
shareholders, partners or members, as the case may be, to agree to certain
Transfer restrictions on such Management Stockholder's Shares and to make
certain
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representations and covenants, by executing an agreement in the form of Annex 1
attached hereto.
ARTICLE 4
REPURCHASE OF SHARES
4.1 Death of a Principal.
(a) In the event of the death of any Management Stockholder or a Principal
of a Management Stockholder (the "Decedent") and subject to the provisions of
Sections 4.3 and 4.5 and the Loan Documents, (i) in the event and to the extent
the Company receives life insurance proceeds as a result thereof (other than key
man insurance maintained for the benefit of lenders to the Company), the Company
shall repurchase Shares from the Decedent's respective Affiliate corporation
(or, if necessary, any Related Transferees) holding such Shares (the "Decedent
Holder"), and such Decedent Holder shall be obligated to sell Shares to the
Company, at the purchase price per Share and on the terms and conditions set
forth in Section 4.3 and (ii) in the event and to the extent that life insurance
proceeds (if any) are insufficient to fund the repurchase of all Shares held by
the Decedent Holder, subject to the existence of funds legally available
therefor, the Company shall have the right and option, but not the obligation,
to repurchase all or such portion of the remaining Shares held by the Decedent
Holder and the Decedent Holder shall be obligated to sell such Shares to the
Company, at the purchase price per Share and on the terms and conditions set
forth in Section 4.3. Such option may be exercised by the Company giving Notice
to the Decedent Holder of its election to so repurchase a Decedent Holder's
Shares. A Decedent Holder shall remain a Stockholder to the extent of any of the
remaining Shares (after the repurchase of Shares contemplated by this Section
4.1(a)) subject to the terms of this Agreement.
(b) The Company at its option may maintain, or cause its Subsidiaries to
maintain, insurance on the life of the Principals in such amounts as the Company
deems reasonable and upon such terms and conditions as the Company, in its sole
discretion, shall deem to be appropriate and reasonable in light of the
circumstances. The Company shall be the sole beneficiary of all such policies.
4.2 Termination, Bankruptcy or Transfer of Stockholders. Subject to the
provisions of Sections 4.3 and 4.5, in the event of (a) the termination of the
employment with the Company or the Operating Subsidiaries of a Principal of a
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Management Stockholder other than by reason of his death, (b) the commencement
by or against a Stockholder or a Principal, of a proceeding under any Federal or
state law relating to bankruptcy, insolvency or debtor relief which shall remain
undismissed for ninety (90) days, or the assumption or rejection of this
Agreement or any part hereof in any such proceeding, or (c) the involuntary
transfer of a Stockholder's Shares pursuant to court order or otherwise (each
such event, a "Section 4.2 Event"), the Company may, at its option, exercisable
by delivering a Notice to the appropriate Stockholder on or before the
expiration of one hundred eighty (180) days after the occurrence such Section
4.2 Event, elect to repurchase, and upon the giving of such Notice the Company
shall be obligated to repurchase and the Stockholder shall be obligated to sell,
all the Shares owned by the Stockholder at the price and on the terms and
conditions set forth in Section 4.3.
4.3 Repurchase Price, Closing and Terms of Payment.
(a) The repurchase price to be paid for Shares repurchased or redeemed
pursuant to Sections 4.1 and 4.2 shall be equal to the Fair Market Value of such
Shares as of the date on which the Company exercises its rights to repurchase
such Shares, and such repurchase price shall be paid in cash.
(b) The closing for any repurchase of Shares (or portions thereof) provided
for in this Article 4 shall be held at the principal executive offices of the
Company at 10:00 a.m. eastern time on the later of (i) the fifteenth Business
Day after the determination of the repurchase price for such Shares (or portion
thereof) to be repurchased or redeemed, or (ii) in the event of the death of a
Principal for which the Company maintains a life insurance policy pursuant to
Section 4.1(c), the second Business Day following receipt by the Company of the
insurance proceeds from such policy.
(c) The Stockholders disposing of Shares pursuant to this Article 4 shall
cause such Shares to be delivered to the Company at the closing free and clear
of all liens, charges or encumbrances of any kind. Such Stockholders shall take
all such actions as the Company shall request to vest in the Company at such
closing good and marketable title to such Shares, free and clear of all liens,
charges and encumbrances.
4.4 No Right of Employment. No right of employment of any Principal is
implied either by ownership of Shares or by any provision of this Agreement.
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4.5 Prohibition of Repurchase. In the event a repurchase of all or a
portion of a Stockholder's Shares pursuant to this Article 4 is prohibited or
would cause a default under the terms of this Agreement or any Loan Document or
other agreement, instrument or law to which the Company is a party or may
otherwise be bound, the obligations of the Company and the rights of
Stockholders pursuant to this Article 4 shall be suspended until such time as
such prohibition first lapses or is waived and no such default or violation
would be caused. In no event shall the Company be obligated hereunder to incur
any debt, refinance any existing debt or issue additional Shares.
ARTICLE 5
CERTAIN RIGHTS AND OBLIGATIONS TO TRANSFER SHARES
5.1 Tag-Along Right.
(a) In the event of a proposed Transfer by one or more Stockholders (the
"Selling Stockholders") in one transaction or a series of related transactions
of 15% or more of the outstanding shares of Common Stock to any Person or group
of Persons other than, in the case of any Stockholder, an Affiliate of such
Stockholder (the "Proposed Purchaser"), each other Stockholder shall have the
right (the "Tag-Along Right") to require the Proposed Purchaser to purchase from
such other Stockholder a number of Shares owned by such Stockholder equal to the
total number of Shares to be sold by the Selling Stockholders to the Proposed
Purchaser (collectively, the "Transfer Shares") multiplied by a fraction, the
numerator of which is the number of Shares (including the number of Shares
issuable upon the exercise of options) owned by such Stockholder, and the
denominator of which is the total number of Shares and the total number of
Shares issuable upon the exercise of options owned by all of the Selling
Stockholders. The purchase price for any Shares purchased from each Stockholder
exercising Tag-Along Rights pursuant to this Section 6.1 shall be the same
amount and form of consideration as that paid, directly or indirectly, for the
Shares being purchased from the Selling Stockholders.
(b) The Selling Stockholders proposing the Transfer shall, as soon as
practicable prior to such proposed Transfer, but in no event less than ten days
prior to such Transfer, give Notice to each other Stockholder of such proposed
Transfer. Such notice (the "Notice of Proposed Transfer") shall set forth: (i)
the total number of Shares outstanding prior to the proposed Transfer, (ii) the
number of Shares being
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so Transferred, (iii) the amount of consideration being paid for the Shares, and
(iv) the closing date, terms of payment and other terms and conditions of the
proposed Transfer.
(c) The Tag-Along Right may be exercised by a Stockholder giving Notice to
the Selling Stockholders, stating the number of Shares that such Stockholder
proposes to include in such Transfer to the Proposed Purchaser, within five
Business Days following such Stockholder's receipt of the Notice of Proposed
Transfer. If no such Notice to participate is received from any Stockholder
during such five-day period, the Selling Stockholders shall have the right, for
a 120-day period after the expiration of such five-day period, to transfer the
Shares specified in the Notice of Proposed Transfer to the Proposed Purchaser on
the terms and conditions set forth therein.
5.2 Take-Along Right. In the event of a proposed Transfer by one or more
Stockholders (in one transaction or a series of related transactions) to a
Person or Group of Persons other than, in the case of any Stockholder, an
Affiliate of such Stockholder, of 51% or more of the outstanding shares of
Common Stock (the "Take-Along Selling Stockholders") to an unaffiliated third
party or propose to approve a sale of the assets to, or a merger of the Company
with, an unaffiliated third party, the Take-Along Selling Stockholders shall
have the right, exercisable upon fifteen (15) days' prior Notice to the other
Stockholders to consummate such sale of such Shares and to require other
Stockholders to sell to such third party the same proportionate part of their
respective Shares as the Take-Along Selling Stockholders propose to sell of the
Shares owned by them or to require the other Stockholders to approve such sale
of assets or merger, for a price per Share (if applicable) and otherwise upon
terms no less favorable to such other Stockholders than those on which the sale
or other transaction by the Take-Along Selling Stockholders is proposed to be
made.
5.3 Registration Rights. The Company hereby agrees that the Stockholders
shall have the right to include their Shares (including Shares issuable upon the
exercise of options) in any registration statement under the Securities Act
filed by the Company for the account of any of its holders of Common Stock
(other than a registration statement on Form S-8) (a "Piggy-Back Registration")
upon terms and conditions no less favorable to such Stockholders than those
provided to the holders of warrants to purchase shares of common stock pursuant
to the Registration Rights and Stockholders' Agreement between the Company and
NatWest Capital Markets Limited being entered into by the Company on the date
hereof.
14
ARTICLE 6
RESTRICTIVE ENDORSEMENTS
6.1 Restrictive Endorsements.
(a) (i) Each certificate representing the Shares now or hereafter held by a
Stockholder shall bear a legend in substantially the following form:
"The Shares represented by this Certificate are subject to an Exchange and
Stockholders' Agreement (the "Stockholders' Agreement") dated as of June 25,
1997, a copy of which is on file at the offices of the Company and will be
furnished to any prospective purchasers on request. Such Stockholders' Agreement
provides, among other things, for certain restrictions on the sale, transfer,
pledge, hypothecation or other disposition of the Shares represented by this
Certificate, and that under certain circumstances the holder hereof may be
required to sell the Shares represented by this Certificate. By acceptance of
this Certificate, each holder hereof agrees to be bound by the provisions of
such Stockholders' Agreement. The Shares represented by this Certificate have
not been registered under the Securities Act of 1933, as amended, or any state
securities law and may not be transferred, sold or otherwise disposed of in the
absence of such registration or an exemption therefrom under such Act.
(ii) Each Stockholder agrees that it will deliver, as necessary, all
Certificates representing Shares owned by it to the Company for the purpose
of affixing thereto the legend specified in this Section 6.1(a).
(b) Removal of Certain Restrictive Legends. Anything herein to the contrary
notwithstanding, Certificates representing Shares sold pursuant to a public
offering permitted hereunder shall not contain the legend set forth in the last
sentence of Section 6.1(a)(i) above.
15
ARTICLE 7
DEFINITIONS
In addition to terms defined elsewhere herein, as used herein, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Affiliate" of a specified Person means any Person who directly or
indirectly controls, is controlled by, or is under common control with, such
Person.
"Agreement" means this Exchange and Stockholders' Agreement, as amended,
supplemented or otherwise modified from time to time.
"Blue Sky Laws" shall have the meaning set forth in Section 1.1(b)(vii).
"Board of Directors" shall mean the Board of Directors of the Company.
"Business Day" means any day (other than a day which is a Saturday, Sunday
or legal holiday in the state of New York) on which banks are open for business
in New York City.
"Closing" shall have the meaning set forth in Section 1.2.
"Common Stock" shall have the meaning set forth in the premises hereof.
"Company" means North Atlantic Trading Company, Inc., a Delaware
corporation formerly named North Atlantic Trading Acquisition Company, Inc.
"Credit Agreement" means the Credit Agreement dated as of June 25, 1997
among the Company, various lending institutions, Gleacher NatWest, as arranging
agent, and National Westminster Bank plc, as administrative agent, as the same
may be amended, supplemented or otherwise modified from time to time.
"Decedent" shall have the meaning set forth in Section 3.1(a).
"Decedent Holder" shall have the meaning set forth in Section 3.1(a)
"Exchange" shall have the meaning set forth in the preamble.
16
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, as of any date of determination with
respect to any Shares, the fair market value of such Shares as agreed to by the
Company and the applicable Stockholder or Stockholders obligated to sell Shares
pursuant to Article 4 hereof in any particular transaction. In the event the
Company and such Stockholders are unable to agree upon the Fair Market Value
within thirty (30) days following the event requiring a determination of Fair
Market Value, the Company and the holders of a Majority of the Shares held by
such Stockholders (the Majority Holders") shall select an independent investment
banking firm to determine Fair Market Value. In the event the Company and such
Majority Holders cannot agree on an investment banking firm to perform the
determination of Fair Market Value within ten (10) Business Days following the
expiration of the 30-day period described above, the Company and such Majority
Holders each shall select an independent investment banking firm and the two so
selected shall select a third independent investment banking firm which shall
determine Fair Market Value. The investment banking firm selected shall not have
a direct or indirect interest in the Company, any Stockholder or any Affiliate
thereof and may not otherwise be affiliated with, or have provided services
within the preceding two years to, any such Person; provided, however, an
investment banking firm shall not be deemed to have a direct or indirect
interest in any Stockholder solely because such firm owns less than three
percent (3%) of a fund or trust that does not hold any Shares directly or
indirectly but which is an Affiliate of a fund or trust that does own Shares
directly or indirectly. For purposes of this Agreement, Fair Market Value shall
mean the value that would be obtained for such Shares in the event all
outstanding shares of Common Stock were sold in their entirety on that date to
an unaffiliated third party with neither the buyer or seller under any
compulsion to act, based on financial information of the Company and its
Subsidiaries as of the date of determination, but taking into account all
relevant factors relating to the Company and its Subsidiaries (including, if
any, business developments since such date and all obligations and liabilities
(including all joint and several obligations and liabilities) of the Company and
its Subsidiaries), and without giving effect (a) to any discount for the lack of
(i) liquidity, (ii) public trading market for the Shares, or (ii) any voting
rights or lack thereof with respect to the Shares, (b) to the fact that the
Company and its Subsidiaries may have no equity securities registered under the
Exchange Act, or that the Stockholder has a minority interest in the Company,
(c) to any contract limitation in respect of the Shares, including their
transfer, voting and other rights, and (d) to the taxable nature of such sale
and the status of a Stockholder as a holder of a "minority interest" in the
Shares being valued. The fees and expenses incurred in connection with the
determination of Fair Market
17
Value shall be shared equally by the Company, on the one hand, and the affected
Stockholders, on the other hand.
"Xxxxx" means Xxxxxx X. Xxxxx, Xx.
"Indenture" means the Indenture dated as of June 25, 1997 among the
Company, as issuer, the Guarantors named therein, and U.S. Trust Company of New
York, as trustee, as the same may be amended, supplemented or otherwise modified
from time to time.
"Loan Documents" shall mean (a) the Credit Agreement, (b) the Indenture,
and (c) all agreements and instruments entered into or issued pursuant to the
agreements described in clauses (a) and (b) above, and (c) any agreement
relating to the renewal, extension, refunding, restructuring, replacement, or
refinancing of any of the foregoing.
"LLC" shall have the meaning set forth in the premises hereof.
"Majority" means, with respect to any Shares and except is otherwise
expressly provided herein, the affirmative vote or written consent, as the case
may be, of Stockholders holding more than sixty-five percent (65%) of the total
number of Shares held by all Stockholders.
"Management Stockholders" shall mean the Stockholders listed on Schedule 2
hereto that are designated thereon as Management Stockholders.
"NATC Operating" means North Atlantic Operating Company, Inc., a Delaware
corporation and, on the date hereof, the direct, wholly-owned Subsidiary of the
Company.
"NATC Holding" means NATC Holding USA, Inc., a Delaware corporation to be
merged with and into NATC Operating on or about the date hereof.
"Non-Voting Common Stock" shall have the meaning set forth in the premises
hereof.
"Notice" means a writing, containing the information required by this
Agreement to be communicated to a party, and shall be deemed to have been
received (a) when personally delivered or sent by telecopy, (b) one day
following delivery by
18
overnight delivery courier, with all delivery charges pre-paid, or (c) on the
third Business Day following the date on which it was sent by United States
mail, postage prepaid, to such party at the address or fax number, as the case
may be, of such Person as shown on the records of the Company.
"NTC" means National Tobacco Company, L.P., a Delaware limited partnership.
"NTC Equity Entities" means any or both of NTC Equity I, Inc., a Delaware
corporation, and NTC Equity II, Inc., a Delaware corporation, each on date
hereof the direct, wholly-owned Subsidiary of the Company.
"Operating Subsidiaries" means NTC and NATC Operating, collectively.
"Person" means any natural person, corporation, partnership, limited
liability company, firm association, trust, governmental agency or other entity,
whether acting in an individual, fiduciary or other capacity.
"Preferred Stock" shall have the meaning set forth in the premises hereof.
"Principal" means the individual, if any, listed below a Management
Stockholder's name on Part A. of Schedule 2 hereto.
"Related Transferees" means, with respect to any Stockholder, the Principal
of such Stockholder, his spouse, his children, trusts solely for the benefit of
such Principal, spouse or children and, in the event of his death, his personal
representatives (in their capacities as such), estate and named beneficiaries.
"Section 4.2 Event" shall have the meaning set forth in Section 4.2.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares" shall have the meaning set forth in the preamble.
"Stockholder" or "Stockholders" shall have the respective meanings set
forth in the preamble hereof.
"Subsidiary" means, with respect to any Person, (i) any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect
19
a majority of the board of directors of such corporation (irrespective of
whether at the time, capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity of which such Person,
together with its other Subsidiaries, has more than a 50% equity interest.
"Transfer" or "Transferred" means (a) when used as a verb, to give, sell
exchange, assign, transfer, pledge, hypothecate, bequeath, devise or otherwise
dispose of or encumber, and (b) when used as a noun, the nouns corresponding to
such verbs in either case voluntarily or involuntarily, by operation of law or
otherwise. When referring to Shares, "Transfer" shall mean the Transfer of such
whether of record, beneficially, or otherwise. For purposes of this Agreement, a
Transfer shall not include the initial issuance of Shares to a Stockholder
pursuant to Section 1.1 hereof.
"Voting Common Stock" shall have the meaning set forth in the premises
hereof.
ARTICLE 8
MISCELLANEOUS
8.1 Waiver of Default. No consent or waiver, express or implied, by the
Company or a Stockholder with respect to any breach or default by the Company or
a Stockholder hereunder shall be deemed or construed to be a consent or waiver
with respect to any other breach or default by any party of the same provision
or any other provision of this Agreement. Failure on the part of the Company or
a Stockholder to complain of any act or failure to act of the Company or a
Stockholder or to declare such party in default shall not be deemed or
constitute a waiver by the Company or the Stockholder of any rights hereunder.
20
8.2 Amendment.
(a) Except as otherwise expressly provided elsewhere in this Agreement,
this Agreement shall not be altered, modified or changed except by an amendment
approved by Stockholders holding a Majority of Shares.
(b) In addition to any amendments otherwise authorized herein, the Company
may make any amendments to any of the Schedules to this Agreement from time to
time to reflect transfers of Shares and issuances of additional Shares. Copies
of such amendments shall be delivered to each of the Stockholders promptly upon
execution thereof.
(c) Any modification or amendment to this Agreement made in accordance with
this Section 8.2 shall be binding on all Stockholders and the Company.
8.3 No Third Party Rights. None of the provisions contained in this
Agreement shall be for the benefit of or enforceable by any third parties,
including creditors of the Company. The parties to this Agreement expressly
retain any and all rights to amend this Agreement as herein provided,
notwithstanding any interest in this Agreement or in any party to this Agreement
held by any other Person.
8.4 Severability. In the event any provision of this Agreement is held to
be illegal, invalid or unenforceable to any extent, the legality, validity and
enforceability of the remainder of this Agreement shall not be affected thereby
and shall remain in full force and effect and shall be enforced to the greatest
extent permitted by law.
8.5 Binding Agreement. Subject to the restrictions on Transfers of Shares
herein contained, the provisions of this Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
8.6 Headings. The headings of sections of this Agreement are for
convenience only and shall not be considered in construing or interpreting any
of the terms or provisions hereof
8.7 Word Meanings. The words such as "herein", "hereinafter", "hereof", and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
21
in which such words appear unless the context otherwise requires. The singular
shall include the plural, and vice versa, unless the context otherwise requires.
8.8 Counterparts. This Agreement may be executed in several counterparts,
all of which together shall constitute one agreement binding on all parties
hereto, notwithstanding that all the parties have not signed the same
counterpart.
8.9 Entire Agreement. This Agreement, as effective on the date hereof,
contain the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior writings or agreements with
respect to such subject matter.
8.10 Arbitration. Except as otherwise provided herein, any dispute arising
out of or relating to this Agreement between or among the Company and one or
more Stockholders or between or among the Stockholders which cannot be resolved
informally within sixty (60) days after referral of such dispute to the
appropriate management level of such Stockholders shall be subject to
arbitration in New York City in accordance with the rules and procedures of the
American Arbitration Association in the State of New York. A Stockholder seeking
to take a matter to arbitration shall provide the other Stockholders and the
Company with written Notice of such intent. Within thirty (30) days following
the issuance of such Notice, each Stockholder (or, if more than two Stockholders
are involved, holders of a Majority of Shares held by the participating
Stockholders) involved in the dispute shall appoint an arbitrator and within
fifteen (15) days thereafter the arbitrators so chosen shall select a third
arbitrator. Each of the three arbitrators chosen shall have no current or prior
affiliation with any of the Stockholders to the arbitration. The three
arbitrators shall promptly hold hearings in accordance with the rules and
guidelines of the American Arbitration Association. The arbitrators shall render
a decision, in writing, as quickly as practicable, but in no event after the
90th day following the initial Notice hereunder. The costs of the arbitration,
including reasonable attorneys' fees and expenses, shall be borne in accordance
with the decision of the arbitrators. The majority decision of the arbitrators
shall be final and binding on the parties and a judgment may be entered upon
such decision in all appropriate jurisdictions. Except as otherwise provided
herein, arbitration as provided in this Section 7.10 shall be a condition
precedent to the filing or institution of any proceeding relating to or arising
out of this Agreement in any court or administrative body. The parties shall be
obligated to continue performance under this Agreement during the pendency of
any dispute arising under this Agreement and any resulting arbitration
proceeding.
22
8.11 Governing Law; Consent to Jurisdiction and Venue. This Agreement shall
be construed according to and governed by the laws of the State of Delaware
without regard to principles of conflict of laws. The parties hereby submit to
the exclusive jurisdiction and venue of the state courts of New York County, New
York and the United States District Court for the Southern District of New York,
and agree that the Company or the Stockholders may, at their option, enforce
their rights hereunder in such courts.
23
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES.
COMPANY:
NORTH ATLANTIC TRADING COMPANY, INC.
By:
--------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
STOCKHOLDERS:
XXXXX MANAGEMENT CORP.
By:
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: President
FLOWING VELVET PRODUCTS, INC.
By:
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
XXXXXXXX ENTERPRISES, INC.
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXX M, INC.
By:
-------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: President
C.D. RAY, INC.
By:
-------------------------------
Name: Xxxxxxxx X. Xxx
Title: President
RBO INC.
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
X. XXXXXX ASSOCIATES, INC.
By:
-------------------------------
Name: Xxx Xxxxxx
Title: President
PINNACLE INVESTORS, INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
X.X. XXXXXXX, INC.
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXX X. XXXXX, XX., INC.
By:
-------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: President
XXXXX X. XXXXXX, III, INC.
By:
-------------------------------
Name: Xxxxx X. Xxxxxx, III
Title: President
CNK ENTERPRISES, INC.
By:
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: President
D. XXX XXXXXX, INC.
By:
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
XXXXXXX X. ABLE, JR., INC.
By:
-------------------------------
Name: Xxxxxxx X. Able, Jr.
Title: President
XXXX X. XXXXXXXXX, INC.
By:
-------------------------------
Name: Xxxx X. XxXxxxxxx
Title: President
M. XXX XXXXXXXX, INC.
By:
-------------------------------
Name: M. Xxx Xxxxxxxx
Title: President
XXXX X. XXXX, INC.
By:
-------------------------------
Name: Xxxx X. Xxxx
Title: President
FISH GROUP, LLC
By:
-------------------------------
Name: Xxxxxxx X. Xxx
Title: Member
XXXXXXX X., INC.
By:
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
XXXXXX, INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
-------------------------------
Xxxx Xxxxx
-------------------------------
Xxxxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
-------------------------------
Xxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxx
-------------------------------
X. Xxxxx Xxxxxx
XXXXXXX HOLDINGS
By:
-------------------------------
Name: Xxxx Xxxxxxx
Title: General Partner
IVORY CAPITAL
By:
-------------------------------
Name: Xxx Xxxxxxxxxxxx
Title: General Parnter
