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EXHIBIT 4.18
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ATLANTIC PREMIUM BRANDS, LTD.
SHAREHOLDERS AGREEMENT
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DATED AS OF MARCH 20, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS....................................................1
SECTION 2. SALES BY SHAREHOLDERS..........................................1
2.1 NOTICE OF PURCHASE OFFERS.............................1
2.2 RIGHT TO PARTICIPATE..................................1
2.3 CONSUMMATION OF PURCHASE OFFER. .....................2
2.4 ONGOING RIGHTS........................................2
2.5 PERMITTED EXCEPTIONS. ...............................2
SECTION 3. INTENTIONALLY OMITTED
SECTION 4. PROHIBITED TRANSFERS...........................................3
4.1 TREATMENT OF PROHIBITED TRANSFERS.....................3
4.2 SALE RIGHTS...........................................3
SECTION 5. LEGENDED CERTIFICATE...........................................4
5.1 LEGEND................................................4
5.2 LEGEND REMOVAL........................................4
SECTION 6. TERMINATION....................................................4
SECTION 7. OTHER OBLIGATIONS OF THE COMPANY. .............................5
SECTION 8. MISCELLANEOUS..................................................5
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SHAREHOLDERS AGREEMENT
This is the CO-SALE AGREEMENT dated as of March 20, 1998 ("Agreement")
by and among ATLANTIC PREMIUM BRANDS, LTD. ("Company"), a Delaware corporation,
the undersigned shareholders of the company (individually, a "Shareholder" and
collectively, the "Shareholders"), and BANC ONE CAPITAL PARTNERS, LLC
("Holder"), a Delaware limited liability company, provided for in and entered
into pursuant to the Senior Subordinated Note and Warrant Purchase Agreement
dated the date hereof (as amended, restated, supplemented or otherwise modified
from time to time, the "Purchase Agreement") by and among Holder, as purchaser,
and the Company and certain of its subsidiaries, as sellers. The Company, the
Shareholders and the Holder are referred to collectively as the "Parties" and
individually as a "Party."
THIS AGREEMENT IS ONE OF THE "RELATED DOCUMENTS" REFERRED TO IN THE
PURCHASE AGREEMENT.
In consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
SECTION 1. DEFINITIONS
All capitalized terms not otherwise defined in this Agreement shall
have the definitions set forth in the Glossary of Defined Terms attached to the
Purchase Agreement, which definitions are, to the extent applicable,
incorporated in this Agreement by reference.
SECTION 2. SALES BY SHAREHOLDERS.
2.1 NOTICE OF PURCHASE OFFERS. If any Shareholder ("Selling
Shareholder") receives and proposes to accept one or more Purchase Offers, then
such Selling Shareholder shall promptly provide Notice to the Holder of the
terms and conditions of such Purchase Offer.
2.2 RIGHT TO PARTICIPATE. The Holder shall have the right,
exercisable upon written Notice to the Selling Shareholder within fifteen (15)
Business Days after receipt of the Notice of the Purchase Offer, to participate
in such Purchase Offer on the same terms and conditions. If the Holder exercises
its right of participation granted by this Agreement, the number of Common
Shares or Convertible Securities which such Selling Shareholder may sell
pursuant to such Purchase Offer shall be reduced in the manner provided below.
The right of participation of the Holder shall be subject to the following terms
and conditions:
(a) The Holder may sell that number of its Warrant Shares in
the Purchase Offer as shall be equal to the product obtained by multiplying (i)
the aggregate number of Common Shares subject to the Purchase Offer by (ii) a
fraction (A) the numerator of which is the number of Warrant Shares at the time
owned by the Holder, and (B) the denominator of which is the sum of (x) the
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number of Common Shares (and Common Share equivalent of Convertible
Securities) at the time beneficially owned by the Shareholders, including their
family members and trusts, partnerships, limited liability companies and any
other entities formed for any of their benefit, and (y) the number of Warrant
Shares then owned by the Holder.
(b) If the Holder elects to participate in the Purchase Offer,
it shall deliver to the Selling Shareholder for Transfer to the purchase offeror
one or more certificates, properly endorsed for Transfer, free and clear of all
adverse claims, which represent that number of Warrant Shares which the Holder
elects to sell pursuant to this Agreement. Such certificates shall be delivered
to the Selling Shareholder no later than two Business Days prior to the date set
for consummation of the Purchase Offer.
2.3 CONSUMMATION OF PURCHASE OFFER. The certificate or
certificates delivered to the Selling Shareholder pursuant to Section 2.2 shall
be Transferred by the Selling Shareholder to the purchase offeror in
consummation of the Purchase Offer pursuant to the terms and conditions
specified in the Notice of Purchase Offer delivered to the Holder, and the
Selling Shareholder shall promptly thereafter remit to the Holder that portion
of the sale proceeds which equals (i) the purchase price per share, multiplied
by (ii) the number of shares sold by the Holder in connection with such Purchase
Offer.
2.4 ONGOING RIGHTS. The exercise or non-exercise by the Holder
of its rights to participate in one or more Purchase Offers hereunder shall not
adversely affect the Holder's right to participate in subsequent Purchase Offers
pursuant to this Agreement.
2.5 PERMITTED EXCEPTIONS. The participation rights of the
Holder hereunder shall not apply to (i) any bona fide gift by a Shareholder, or
(ii) the Transfer of Common Shares or Convertible Securities to the spouse or
descendants of a Shareholder or any trust, partnership, limited liability
company or other entity established for the benefit of the Shareholder or his
spouse or descendants; provided that the Shareholder shall give prior written
Notice to the Holder of such gift or other Transfer and the donee or transferor
shall become a party to and be bound by, and comply with, all provisions of this
Agreement. In addition, the participation rights of the Holder shall not apply
to any sale by a Shareholder that would comply with the volume limitation set
forth in Rule 144(e) adopted under the Securities Act (or any successor rule or
regulation).
SECTION 3. INTENTIONALLY OMITTED.
SECTION 4. PROHIBITED TRANSFERS.
4.1 TREATMENT OF PROHIBITED TRANSFERS. If a Shareholder engages
in a Prohibited Transfer, the Holder, in addition to such other remedies as may
be available at law or in equity, shall have the sale rights provided for in
Section 4.2.
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4.2 SALE RIGHTS. If a Prohibited Transfer occurs, the Holder
shall have the right to sell to the Shareholder engaging in such Prohibited
Transfer that number of Warrant Shares or Convertible Securities owned by the
Holder which shall be equal to the number of shares the Holder would have been
entitled pursuant to the terms hereof to Transfer to the purchase offeror in the
Prohibited Transfer. Such sale shall be made on the following terms and
conditions:
(a) The price per share at which such Warrant Shares or
Convertible Securities shall be sold to the Shareholder shall be equal or
equivalent to the price per share paid by the purchase offeror to the
Shareholder in the Prohibited Transfer. The Shareholder shall also reimburse the
Holder for any and all reasonable fees and expenses, including legal fees and
expenses, incurred pursuant to the exercise or the attempted exercise of the
Holder's rights under this Section 4.
(b) Within thirty (30) days after the earlier of the date on
which the Holder (i) receives Notice from a Shareholder of a Prohibited
Transfer, or (ii) otherwise becomes aware of a Prohibited Transfer, the Holder
shall, if it determines in its sole discretion to exercise its sale rights
pursuant to this Section 4, deliver to the Shareholder engaging in the
Prohibited Transfer the certificate or certificates representing the Warrant
Shares to be sold hereunder free and clear of all adverse claims and properly
endorsed for Transfer.
(c) The Shareholder engaging in the Prohibited Transfer shall,
upon receipt of the certificate or certificates for the Warrant Shares to be
sold by the Holder pursuant to this Section 4, pay the aggregate purchase price
therefor plus the amount of reimbursable fees and expenses, as specified in this
Section 3.2, by wire transfer of immediately available funds or certified or
cashier's check made payable to the order of the Holder.
SECTION 5. LEGENDED CERTIFICATE.
5.1 LEGEND. Each certificate representing Common Shares or
Convertible Securities of the Company now or hereafter owned by the Shareholders
shall be endorsed by the Company with the following legend:
THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN CO-SALE AGREEMENT
BY AND BETWEEN THE SHAREHOLDER AND OTHER PARTIES. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
5.2 LEGEND REMOVAL. The legend required by this Agreement shall
be removed from any certificate upon the earlier of the termination of this
Agreement or the date upon which the provisions of this Agreement are no longer
applicable to the securities represented by such certificate.
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SECTION 6. TERMINATION.
The rights of the Holder and the obligations of the Shareholders and
the Company under this Agreement shall terminate upon the earlier to occur of
the following events:
(a) the liquidation or dissolution of the Company;
(b) the execution by the Company of a general assignment for
the benefit of creditors or the appointment of a receiver or trustee for the
property or assets of the Company;
(c) the consummation of an Qualified Public Offering; or
(d) such time as the Holder does not own Warrant Shares
representing at least 1% of the Outstanding Common Shares of the Company.
SECTION 7. OTHER OBLIGATIONS OF THE COMPANY.
The Company agrees to use reasonable efforts to enforce the terms of
this Agreement, to inform the Holder of any breach hereof and to assist the
Holder in the exercise of its rights hereunder.
SECTION 8. MISCELLANEOUS.
The provisions of Section 11 of the Purchase Agreement are applicable
to this Agreement and are incorporated by reference in this Agreement.
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The parties have executed and delivered this Agreement effective as of
the day and year first above written.
COMPANY: HOLDER:
ATLANTIC PREMIUM BRANDS, LTD. BANC ONE CAPITAL PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxx By: Banc One Capital Partners
--------------------------------- Holdings, Ltd., Manager
Name: /s/ Xxxxxxx X. Xxxxxx By: BOCP Holdings Corporation,
------------------------------- Manager
Its: Chairman
-------------------------------- By: /s/ Xxxxxxx Xxxxxxxx
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SHAREHOLDERS: Name: Xxxxxxx Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxx Its: Authorized Signer
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/s/ Xxxxxxx Xxxxxxxxxxx Xxxxx-Xxxxx
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/s/ Xxxx X. Xxxxxx
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