Exhibit (2)(c)
CONFORMED COPY
STOCK OPTION AGREEMENT dated as of April 11, 2000, between
BEN & JERRY'S HOMEMADE, INC., a Vermont corporation ("ISSUER"),
and CONOPCO, INC., a New York corporation ("GRANTEE").
WHEREAS Issuer and Grantee are parties to an Agreement and
Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"; defined
terms used but not defined herein have the meanings set forth in the Merger
Agreement); and
WHEREAS as a condition and inducement to Grantee's willingness
to enter into the Merger Agreement, Grantee has requested that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. GRANT OF OPTION. Issuer hereby grants to Grantee an
irrevocable option (the "OPTION") to purchase up to 1,219,986 (as adjusted as
set forth herein) shares (the "OPTION SHARES") of Class A Common Stock at a
purchase price of $43.60 (as adjusted as set forth herein) per Option Share (the
"PURCHASE PRICE").
SECTION 2. EXERCISE OF OPTION. (a) Grantee may exercise the
Option, with respect to any of or all the Option Shares at any one time after
the termination of the Merger Agreement in circumstances in which the Grantee is
entitled to receive a termination fee pursuant to Section 6.07 of the Merger
Agreement (a "PURCHASE EVENT"); PROVIDED, HOWEVER, that (i) except as provided
in the last sentence of this Section 2(a), the Option shall terminate and be of
no further force and effect upon the earliest to occur of (A) the Effective
Time, (B) 180 days after the first occurrence of a Purchase Event, and (C)
termination of the Merger Agreement in accordance with its terms prior to and
without the occurrence of a Purchase Event, and (ii) any purchase of Option
Shares upon exercise of the Option shall be subject to compliance with the HSR
Act and the obtaining or making of any consents, approvals, orders,
notifications or authorizations, the failure of which to have obtained or made
would have the effect of making the
issuance of Option Shares illegal. Notwithstanding the termination of the
Option, Grantee shall be entitled to purchase the Option Shares if it has
exercised the Option in accordance with the terms hereof prior to the
termination of the Option and the termination of the Option shall not affect any
rights hereunder that by their terms do not terminate or expire prior to or as
of such termination.
(b) The exercise of the Option shall be effected by Grantee
sending to Issuer a written notice (an "EXERCISE NOTICE"; the date of which
being herein referred to as the "NOTICE DATE") to that effect. An Exercise
Notice shall specify the number of Option Shares, if any, Grantee wishes to
purchase pursuant to the Option, the number of Option Shares, if any, with
respect to which Grantee wishes to exercise its Cash-Out Right (as defined in
Section 6(c)), the denominations of the certificate or certificates evidencing
the Option Shares that Grantee wishes to purchase pursuant to the Option and a
date not earlier than three business days nor later than 20 business days from
the Notice Date for the closing of such purchase (the "OPTION CLOSING DATE").
Any Option Closing will be at an agreed location and time in New York, New York
on the applicable Option Closing Date or at such later date as may be necessary
so as to comply with Section 2(a).
SECTION 3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) At any
Option Closing, Grantee shall pay to Issuer in immediately available funds by
wire transfer to a bank account designated in writing by Issuer an amount equal
to the Purchase Price multiplied by the number of Option Shares to be purchased
at such Option Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer shall deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares shall be free and clear of
all Liens.
(c) Certificates for the Option Shares delivered at an Option
Closing shall have typed or
printed thereon a restrictive legend, which will read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
It is understood and agreed that the reference to restrictions arising under the
Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
and sold pursuant to the Securities Act, such Option Shares have been sold in a
transaction in reliance on and in accordance with Rule 144 under the Securities
Act or Grantee has delivered to Issuer a copy of a letter from the staff of the
SEC, or an opinion of counsel in form and substance reasonably satisfactory to
Issuer and its counsel, to the effect that such legend is not required for
purposes of the Securities Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF
ISSUER. Issuer hereby represents and warrants to Grantee as
follows:
Issuer has taken all necessary corporate and other action to
authorize and reserve and, subject to the expiration or termination of
any required waiting period under the HSR Act, to permit it to issue,
and, at all times from the date hereof until the obligation to deliver
Option Shares upon the exercise of the Option terminates, shall have
reserved for issuance, upon exercise of the Option, shares of Class A
Common Stock sufficient for Grantee to exercise the Option in full, and
Issuer shall take all necessary corporate action to authorize and
reserve for issuance all additional shares of Class A Common Stock or
other securities which may be issued pursuant to Section 6 upon
exercise of the Option. The shares of Class A Common Stock to be
issued upon due exercise of the Option, including all additional
shares of Class A Common Stock or other securities which may be
issuable upon exercise of the Option or any other securities which may
be issued pursuant to Section 6, upon issuance pursuant hereto, will
be duly and validly issued, fully paid and nonassessable, and will be
delivered free and clear of all Liens, including any preemptive rights
of any shareholder of Issuer.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee
hereby represents and warrants to Issuer that any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be
transferred or otherwise disposed of except in a transaction registered, or
exempt from registration, under the Securities Act.
SECTION 6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. (a)
In the event of any change in Class A Common Stock by reason of a stock
dividend, split-up, merger, recapitalization, combination, exchange or
conversion of shares, or similar transaction, the type and number of shares or
securities subject to the Option, and the Purchase Price thereof, shall be
adjusted appropriately, and proper provision will be made in the agreements
governing such transaction, so that Grantee shall receive upon exercise of the
Option the number and class of shares or other securities or property that
Grantee would have received in respect of Class A Common Stock if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable. Subject to Section 1, and without limiting the parties' relative
rights and obligations under the Merger Agreement, if any additional shares of
Class A Common Stock are issued after the date of this Agreement (other than
pursuant to an event described in the first sentence of this Section 6(a)), the
number of shares of Class A Common Stock subject to the Option shall be adjusted
so that, after such issuance, it equals 19.9% of the number of shares of Class A
Common Stock then issued and outstanding, without giving effect to any shares
subject to or issued pursuant to the Option.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that Issuer enters into an
agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and Issuer will not be the continuing or surviving corporation in
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer will be the continuing
or surviving corporation, but in connection with such merger, the shares of
Class A Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other person or cash or any other property, or the shares of Class A
Common Stock outstanding immediately prior to the consummation of such merger
will, after such merger, represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer all or
substantially all its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of stock or other
securities or cash or other property that Grantee would have received in respect
of Class A Common Stock if the Option had been exercised immediately prior to
such consolidation, merger, sale, or transfer, or the record date therefor, as
applicable and make any other necessary adjustments.
(c) If, at any time during the period commencing on a
Purchase Event and ending on the termination of the Option in accordance with
Section 2, Grantee sends to Issuer an Exercise Notice indicating Grantee's
election to exercise its right (the "CASH-OUT RIGHT") pursuant to this
Section 6(c), then Issuer shall pay to Grantee, on the Option Closing Date,
in exchange for the cancelation of the Option with respect to such number of
Option Shares as Grantee specifies in the Exercise Notice, an amount in cash
equal to the greater of (i) $1.00 per Option Share the subject of such
Exercise Notice and (ii) such number of Option Shares multiplied by the
difference between (A) the average closing price, for the ten trading days
commencing on the 12th trading day immediately preceding the Notice Date,
per share of Class A Common Stock as reported on the NASDAQ, as reported in THE
WALL STREET JOURNAL (Northeast edition), or, if not reported thereby, any other
authoritative source (the "CLOSING PRICE") and (B) the Purchase Price.
Notwithstanding the termination of the Option, Grantee shall be entitled to
exercise its rights under this Section 6(c) if it has exercised such rights in
accordance with the terms hereof prior to the termination of the Option.
Notwithstanding anything herein to the contrary, the aggregate amount payable by
Issuer to Grantee pursuant to this Section 6(c) shall not exceed $500,000.
SECTION 7. REGISTRATION RIGHTS. Issuer shall, if requested
by Grantee at any time and from time to time within three years of the
exercise of the Option, as expeditiously as possible prepare and file up to
three registration statements under the Securities Act if such registration
is necessary in order to permit the sale or other disposition of any or all
shares of securities that have been acquired by or are issuable to Grantee
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by Grantee, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor provision,
and Issuer shall use its best efforts to qualify such shares or other
securities under any applicable state securities laws. Issuer shall use
reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are
required therefor, and to keep such registration statement effective for such
period not in excess of 180 calendar days from the day such registration
statement first becomes effective as may be reasonably necessary to effect
such sale or other disposition. The obligations of Issuer hereunder to file a
registration statement and to maintain its effectiveness may be suspended for
up to 60 calendar days in the aggregate if the Board of Directors of Issuer
shall have determined that the filing of such registration statement or the
maintenance of its effectiveness would require premature disclosure of
material nonpublic information that would materially and adversely affect
Issuer or otherwise interfere with or adversely affect any pending or
proposed offering of securities of Issuer or any other
material transaction involving Issuer. Any registration statement prepared and
filed under this Section 7, and any sale covered thereby, shall be at Issuer's
expense except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto. Grantee will
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 7, Issuer effects a
registration under the Securities Act of Class A Common Stock for its own
account or for any other shareholders of Issuer (other than on Form S-4 or Form
S-8, or any successor form), it shall allow Grantee the right to participate in
such registration, and such participation shall not affect the obligation of
Issuer to effect demand registration statements for Grantee under this Section
7; PROVIDED, HOWEVER, that, if the managing underwriters of such offering advise
Issuer in writing that in their opinion the number of shares of Class A Common
Stock requested to be included in such registration exceeds the number which can
be sold in such offering, Issuer shall include the shares requested to be
included therein by Grantee pro rata with the shares intended to be included
therein by Issuer. In connection with any registration pursuant to this Section
7, Issuer and Grantee shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification,
and contribution in connection with such registration.
SECTION 8. LOSS OR MUTILATION. Upon receipt by Issuer of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancelation of
this Agreement, if mutilated, Issuer will execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered will
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed, or mutilated shall at any time
be enforceable by anyone.
SECTION 9. MISCELLANEOUS. (a) EXPENSES. Except as otherwise
provided in the Merger Agreement,
each of the parties hereto will bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants, and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) EXTENSION; WAIVER. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for performance,
will be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise will not constitute a waiver of such
rights.
(d) NO THIRD-PARTY BENEFICIARIES. This Agreement is not
intended to confer upon any person other than the parties and their successors
and permitted assigns any rights or remedies.
(e) GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
(f) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement shall be given in accordance with Section
9.02 of the Merger Agreement.
(g) ASSIGNMENT. Neither this Agreement, the Option nor any of
the rights, interests, or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other, except that Grantee may
assign all its rights under Section 7 to any person who acquires from Grantee
any Option Shares. Any assignment or delegation in violation of the preceding
sentence shall be void.
Subject to the first and second sentences of this Section 9(g), this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and permitted assigns.
(h) FURTHER ASSURANCES. In the event of any exercise of the
Option by Grantee, Issuer and Grantee shall execute and deliver all other
documents and instruments and take all other actions that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
IN WITNESS WHEREOF, Issuer and Grantee have duly executed this
Agreement, all as of the day and year first written above.
CONOPCO, INC.,
by
/S/ MART LAIUS
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Name: Mart Laius
Title: Vice President
BEN & JERRY'S HOMEMADE, INC.,
by
/S/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
