SECOND AMENDMENT TO SHAREHOLDERS AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO
This Second Amendment, dated as of July
8, 2009 amends the Shareholders Agreement by and among Seneca Foods Corporation,
a New York corporation (the "Company") and the parties listed therein, dated as
of June 22, 1998, as amended by a First Amendment to Shareholders Agreement
dated as of June 30, 2002 (the "Shareholders Agreement").
RECITALS
A. The
Company has entered into an Agreement of even date herewith (the "RR Amendment")
with ▇▇▇▇ ▇▇▇▇▇ Strategic Investments, L.P., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ Strategic Investments III, L.P., ▇▇▇▇▇ ▇▇▇▇▇ 2003 GRAT, ▇▇▇▇▇ ▇▇▇▇▇ 2009
CMS-GRAT, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ , ▇▇▇▇ ▇▇▇▇▇▇▇
Life Insurance Company and ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
concerning the rights and obligations of such parties arising under a
Registration Rights Agreement, dated as of June 22, 1998, among the Company and
certain of such parties (as amended, the "RR Agreement"), including those
relating to a "Secondary Offering" (as defined in the RR Amendment) of certain
of the Company's securities; and
B. The
parties hereto have also agreed, in connection with the transactions
contemplated under the RR Amendment, to modify the terms of the Shareholders
Agreement as set forth below.
C. Capitalized
terms used by not defined herein shall have the meaning set forth in the RR
Agreement.
TERMS OF THIS
AGREEMENT
NOW,
THEREFORE:
1. Notwithstanding
anything to the contrary set forth in the Shareholders Agreement, the
Shareholders Agreement shall automatically and immediately terminate and be of
no further force and effect if the "Selling Shareholders" consummate the sale of
any "Owned Shares" or "Additional Owned Shares" (as respectively defined in the
RR Amendment) in the Secondary Offering (an “Automatic
Termination”).
2. Each of
the "Shareholders" (as defined in the Shareholders Agreement) represents and
warrants to the Company and the other Shareholders that there are no successors
to or assignees of the rights of such Shareholder arising under the Shareholders
Agreement.
3. In the
event of an Automatic Termination pursuant to the provisions of Section 1 of
this Second Amendment, the "Investor Designees" (as defined in Section 5.2 of
the Shareholders Agreement) shall immediately resign from all positions held
with the Company, including their positions as members of the board of directors
and any committee of the board of directors of the Company. By
executing this Agreement, each of the two current "Investor Designees" (▇▇▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇) hereby irrevocably tender their respective
resignations from all such positions with the Company effective upon the date of
an Automatic Termination pursuant to Section 1 of this Second Amendment;
provided, however, that such resignations shall not take effect unless and until
such time as an Automatic Termination takes effect in accordance with the
provisions of Section 1 of this Second Amendment.
4. This
Second Amendment may be executed and delivered via facsimile or e-mail
transmission; and may be executed in counterparts, each of which shall be an
original and all of which shall constitute one and the same
instrument.
5. This
Second Amendment has been negotiated, executed and delivered in the State of New
York and shall be governed by and construed in accordance with the laws of the
State of New York, without regards to principles of conflicts of
law.
6. This
Second Amendment, together with the Shareholders Agreement (including the
schedules thereto) is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Second Amendment and the Shareholders Agreement
(including the schedules thereto) supersede all prior agreements and
understandings between the parties with respect to such subject
matter.
7. This
Second Amendment will terminate and be of no further force and effect if no
Owned Shares are sold in connection with the Secondary Offering by September 30,
2009.
8. The
Company confirms and agrees that if the resignation of the Investor Designees
pursuant to Section 3 above becomes effective, then the Investor Designees shall
continue to be entitled to indemnification from the Company in connection with
any and all claims (including litigation claims, if any) arising in connection
with Investor Designees' prior performance and actions as directors of the
Company (or members of any committees of the Company’s board of directors),
which indemnity rights shall be provided by the Company to the Investor
Designees on the same terms and conditions as are in effect on the date that
such resignation becomes effective.
9. In the
event of an Automatic Termination pursuant to the provisions of Section 1 of
this Second Amendment, then each party listed on the signatures pages to this
Second Amendment as one of the "Investor Shareholders and Their Transferees" or
one of the "Existing Marks Shareholders" irrevocably and unconditionally agrees
that thereafter such party shall (i) not oppose any proposal to amend the
Company's Certificate of Incorporation to eliminate the existing provisions set
forth in Article 10 thereof (the "C of I Amendment") and (ii) vote, or to cause
to be voted, all of such party's "Shares" (as defined in the Shareholders
Agreement), if any, at any regular or special meeting of shareholders of the
Company where the matter arises, or in any written consent executed in lieu of
such a meeting of shareholders, in favor of the C of I Amendment.
10. This
Second Amendment is binding on the undersigned and the respective successors,
heirs, personal representatives and assigns of the undersigned.
[SIGNATURE
PAGES TO FOLLOW]
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IN
WITNESS WHEREOF, the undersigned have executed this Second Amendment as of the
day and year first set forth above.
COMPANY:
SENECA FOODS CORPORATION
By: __Kraig H.
Kayser____________________
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: President and
Chief Executive Officer
INVESTOR SHAREHOLDERS AND
THEIR TRANSFEREES:
▇▇▇▇ ▇▇▇▇▇ STRATEGIC INVESTMENTS,
L.P.
By: CMSI
GP, LLC, as General Partner
By: ▇▇▇▇▇▇ ▇.
▇▇▇▇, as Managing Member
By: ___/s/▇▇▇▇▇▇ ▇.
Boas____________________
Name: ▇▇▇▇▇▇ ▇.
▇▇▇▇
Title:
Managing Member
▇▇▇▇
▇▇▇▇▇ STRATEGIC INVESTMENTS III, L.P.
By: CMSI
III GP, LLC, as General Partner
By: ▇▇▇▇▇▇ ▇.
▇▇▇▇, as Managing Member
By: ___/s/▇▇▇▇▇▇ ▇.
Boas____________________
Name: ▇▇▇▇▇▇ ▇.
▇▇▇▇
Title:
Managing Member
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EXISTING MARKS
SHAREHOLDERS:
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and
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INVESTOR DESIGNEES (SOLELY
FOR PURPOSES OF SECTION 3)
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