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EXHIBIT 10.10
AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
October 6, 1997
among
American Italian Pasta Company
and
Certain of its Shareholders
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THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT dated as of October
6, 1997 ("Agreement") is by and among American Italian Pasta Company, a Delaware
corporation (the "Company"), and each of the other signatories listed on the
signature pages hereof.
W I T N E S E T H:
WHEREAS, the Company, The Xxxxxx Xxxxxxx Leveraged Equity Fund II,
L.P., a Delaware limited partnership ("MSLEF II"), Xxxxxx Xxxxxxx Capital
Partners III, L.P. ("MSCP"), Xxxxxx Xxxxxxx Capital Investors, L.P. and MSCP III
892 Investors, L.P., each a Delaware limited partnership (collectively, the
"MSCP Funds" and, together with MSLEF II, collectively, the "MS Shareholders"),
and each of the other signatories hereto are parties to a Shareholders Agreement
dated as of October 30, 1992 (the "Original Agreement"), as amended by Amendment
No. 1 to Shareholders Agreement dated as of March 8, 1995, Amendment No. 2 to
Shareholders Agreement dated as of April 13, 1995, and Amendment No. 3 to
Shareholders Agreement dated as of April 15, 1997 (as so amended, the "Amended
Original Agreement");
WHEREAS, the Shareholders (as defined below) presently own the number
of shares of Class A common stock, par value $.01 per share (the "Old Class A
Common Stock"), and/or shares of common stock, no par value per share (the "Old
Common Stock" and with the Old Class A Common Stock collectively, the "Old
Stock"), of the Company set forth opposite their respective names on Exhibit A
attached to this Agreement;
WHEREAS, the Company expects to consummate its IPO (as defined herein)
shortly following the date hereof;
WHEREAS, prior to its IPO, the Company will amend and restate its
Certificate of Incorporation and effect a recapitalization (the
"Recapitalization") pursuant to which (i) each outstanding share of Old Class A
Common Stock and Old Common Stock will be converted into 6.132043 shares of the
Class A Convertible Common Stock, par value $.001 per share, of the Company (the
"Class A Common Stock");
WHEREAS, the MS Shareholders have informed the Company that upon the
consummation of the IPO they intend to convert such number of their shares of
Class A Common Stock into shares of the Class B Convertible Non-Voting Common
Stock, par value $.001 per share, of the Company (the "Class B Common Stock"
and, together with the Class A Common Stock, the "Common Stock") so that,
following such conversion, the MS Shareholders will own, in the aggregate, 49%
of the outstanding Class A Common Stock.
WHEREAS, in connection with the IPO, the Company and the Shareholders
wish to further amend and restate in its entirety the Amended Original
Agreement; and
WHEREAS, the execution of this Agreement constitutes the consent of the
Company and each of the Shareholders to the amendment and restatement of the
Amended Original Agreement effective immediately after the IPO Closing (as
defined below), thereby binding each
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Shareholder to this Agreement in accordance with Section 7.4 of the Amended
Original Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. (a) The following terms, as used in this Agreement,
have the following meanings:
"Adverse Person" means, as determined in the sole discretion of the
Board, (i) any transferee that intends to cause, or is reasonably likely to
cause, or whose ownership of Common Stock would cause an adverse impact on the
business, interests or prospects of the Company or any Shareholder or (ii) any
transferee that is a competitor or supplier of the Company or an Affiliate of
any such competitor or supplier.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, provided that no shareholder of the Company shall be deemed an
Affiliate of any other shareholder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a successor
to the assets held by a trust established under an employee benefit plan subject
to ERISA or any other trust established directly or indirectly under such plan
or any other such plan having the same sponsor.
"Xxxx Fund" means Xxxxxx X. Xxxx Group, Inc, Xxxxxx X. Xxxx Capital
Partners, L.P., or Xxxxxx X. Xxxx Employee Equity Fund, L.P.
"Xxxx Affiliate" means any Person included within the definition of
"Xxxx Fund", or any Affiliate of such Person.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Business Plan" has the meaning specified in Section 2.5(b) of this
Agreement.
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"Bylaws" means the bylaws of the Company, as amended from time to time.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company, as amended from time to time.
"Chairman" means the chairman of the board of directors of the Company.
"Chief Executive Officer" means the chief executive officer of the
Company.
"Citicorp" means Citicorp Venture Capital, Ltd. or CCT III Partners,
L.P.
"Class A Common Stock" has the meaning specified in the recitals to
this Agreement.
"Class B Common Stock" has the meaning specified in the recitals to
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Confidential Information" has the meaning specified in Section 6.1(b)
of this Agreement.
"Director" means any member of the Board.
"Disadvantageous Condition" has the meaning specified in Section 5.1(a)
of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Shareholders" means Xxxxxxxx and Citicorp.
"Fully Diluted" means, with respect to Common Stock, all outstanding
shares of Common Stock, shares of Common Stock issuable in respect of securities
convertible into or exchangeable for Common Stock, and shares of Common Stock
issuable upon exercise of stock appreciation rights or options, warrants and
other rights to purchase or subscribe for Common Stock or securities convertible
into or exchangeable for Common Stock.
"IPO" means the Company's first Underwritten Offering.
"IPO Closing" means the consummation of the IPO.
"IPO Closing Date" means the date of the IPO Closing.
"Losses" means any losses, claims, damages, liabilities or expenses.
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"Major Acquisition" means strategic acquisition of, or investment in
the assets or a business of, another Person, which acquisition or investment has
a fair market value of at least $30 million.
"Maximum Offering Size" has the meaning specified in Section 5.1(f) of
this Agreement.
"Minority Selling Shareholders" means, with respect to any registration
of Registrable Stock under the Securities Act, the Minority Shareholders who
exercise their rights under Sections 5.1(a), 5.1(b) or 5.2 of this Agreement to
have Registrable Stock included in such registration.
"Minority Shareholders" means the Shareholders and their Permitted
Transferees, other than the MS Shareholders and the Permitted Transferees of the
MS Shareholders.
"MS Percentage" means, as of any date, a fraction, the numerator of
which equals the aggregate number of shares of Common Stock transferred prior to
such date by the MS Shareholders and their Permitted Transferees and the
denominator of which equals the number of shares of Common Stock owned on the
date hereof by the MS Shareholders and their Permitted Transferees.
"MS Selling Shareholders" means, with respect to any registration of
Registrable Stock under the Securities Act, the MS Shareholders who exercise
their rights under Sections 5.1(a), 5.1(b) or 5.2 of this Agreement to have
Registrable Stock included in such registration.
"MS Shareholder" has the meaning specified in the recitals to this
Agreement.
"Old Stock" has the meaning specified in the recitals to this
Agreement.
"Partial Subsidiary" means any Subsidiary of the Company of which less
than 100% of the capital stock is directly or indirectly owned by the Company.
"Permitted Transferee" means:
(i) in the case of any MS Shareholder, (w) any general or
limited partner of any MS Shareholder (a "MS Partner"), and any
corporation, partnership, Affiliated Employee Benefit Trust or other
entity which is an Affiliate of any MS Partner (collectively, the "MS
Affiliates"), (x) any managing director, general partner, director,
limited partner, officer or employee of a MS Shareholder or a MS
Affiliate (collectively, "MS Associates"), (y) the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any
MS Associate and (z) a trust, the beneficiaries of which, or a
corporation, limited liability company or partnership, the
shareholders, members or general or limited partners of which, include
only MS Shareholders, MS Affiliates, MS Associates, their spouses or
their lineal descendants;
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(ii) in the case of any Minority Shareholder who is a natural
person, (x) a Person to whom Shares are transferred from such Minority
Shareholder (A) by will or the laws of descent and distribution or (B)
by gift without consideration of any kind; provided that such
transferee is the lineal descendant or spouse of a Person who is a
signatory to this Agreement, or (y) a trust, each primary beneficiary
of which is the spouse or lineal descendant of such Minority
Shareholder or his Permitted Transferees under clause (x) above;
(iii) in the case of Xxxxxxxx Holdings, L.P., (x) any Person
included in the definition of "Xxxxxxxx", (y) a Person to whom Shares
are transferred by gift without consideration of any kind; provided
that such transferee is the lineal descendant or spouse of Xxxxxxx X.
Xxxxxxxx, or (z) a trust, each primary beneficiary of which is the
spouse or lineal descendant of Xxxxxxx X. Xxxxxxxx or a Permitted
Transferee under clause (y) above;
(iv) in the case of any Shareholder, the Company;
(v) in the case of any Xxxx Fund, any Xxxx Affiliate, and,
effective as of any date after December 31, 1998, (x) any partner or
member of such Xxxx Fund; provided that at no time shall the number of
Shares transferred pursuant to this clause (x), when added to the
aggregate number of Shares transferred pursuant to this clause (x) or
sold by all Xxxx Affiliates during the preceding 90 days, exceed the
maximum number of shares of Common Stock that could then be sold by all
Xxxx Affiliates in accordance with the then-applicable volume
limitations of Rule 144(e) (or any successor provision) under the
Securities Act, if any, or (y) any partner or member of any Xxxx Fund
in connection with any distribution of all or substantially all of the
net assets of such Xxxx Fund to its partners or members, as applicable;
(vi) in the case of Excelsior Investors, L.L.C., any Person
who is a member thereof on the date of this Agreement;
(vii) in the case of Citicorp, a Person that is an Affiliate
of Citicorp, it being understood that for purposes of this provision,
in the case of Citicorp or its Permitted Transferees, a trust
established under ERISA which is an Affiliate of Citicorp or an
Affiliated Employee Benefit Trust shall be deemed an Affiliate of
Citicorp or its Permitted Transferees;
(viii) in the case of CCT III Partners, L.P. ("CCT"),
effective as of any date after December 31, 1998, any partner of CCT in
connection with any distribution of all or substantially all of the net
assets of CCT to its partners;
(ix) any Person with respect to which the Board, in its sole
discretion, shall have adopted a resolution (whether before or after
the date of this Agreement) stating that the Board has no objection if
a transfer of Shares is made to such Person; provided, in the case of
any such resolution adopted on or after the date of this Agreement,
that if the MS
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Shareholders shall at the time of such adoption beneficially own, in
the aggregate, shares of Common Stock representing at least 10% of the
shares of Common Stock then outstanding (on a Fully Diluted basis), the
MS Shareholders shall in their sole discretion have approved such
resolution; or
(x) in the case of JSS Management Company, Ltd., (x) Xxxxx X.
Xxxxxxxxxxx, or (y) any general or limited partner of JSS who is a
spouse or lineal descendant of Xxxxx X. Xxxxxxxxxxx.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Principal Subsidiary" has the meaning specified in Section
2.1(a) of this Agreement.
"Recapitalization" has the meaning specified in the recitals
to this Agreement.
"Registrable Stock" means any Shares until the first to occur of (i) a
registration statement covering such Shares has been declared effective by the
SEC and such Shares have been disposed of pursuant to such effective
registration statement, (ii) such Shares have been sold in compliance with all
of the applicable conditions of Rule 144, (iii) such shares are eligible to be
sold pursuant to Rule 144(k), or (iv) such Shares have otherwise been
transferred, the Company has delivered a new certificate or certificates for
such Shares not bearing the legend required pursuant to this Agreement and such
Shares may be resold without registration under the Securities Act.
"Registration Expenses" means (i) all SEC, stock exchange or NASDAQ
registration and filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Shares), (iii)
printing expenses, (iv) internal expenses of the Company (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) reasonable fees and disbursements of counsel
for the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including any costs associated with the
delivery by independent certified public accountants of a comfort letter or
letters requested pursuant to Section 5.4(h) hereof), (vi) the reasonable fees
and expenses of any special experts retained by the Company in connection with
such registration, (vii) reasonable fees and expenses of no more than one
counsel for all of the Selling Shareholders, (viii) fees payable to the National
Association of Securities Dealers, Inc and (ix) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities in
firm-commitment underwritings; provided, however, that the term "Registration
Expenses" shall not include any (w) underwriting or brokerage fees, discounts or
commissions, (x) transfer taxes, (y) out-of-pocket expenses of the Selling
Shareholders (or of the agents who manage their accounts) or (z) any fees and
expenses of underwriters' counsel (other than pursuant to clause (ii) of this
paragraph); provided, further, that the counsel for the Selling Shareholders
contemplated by clause (vii) of this definition shall be selected by the Selling
Shareholders
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beneficially owning a majority of the Shares to be sold for the account of all
Selling Shareholders, but in any event shall be reasonably acceptable to the
Company.
"Registration statement" means a registration statement under the
Securities Act.
"Representatives" has the meaning specified in Section 6.1(b) of this
Agreement.
"Rule 144" means Rule 144 (or any successor provision) under the
Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Shareholders" means the Minority Selling Shareholders and the
MS Selling Shareholders.
"Xxxxxxxxx" means Xxxxx X. Xxxxxxxxx and each of his Permitted
Transferees in respect of Shares transferred before or after the date hereof.
"Xxxxxxxxx Allotment" means, subject to adjustment from time to time
pursuant to Section 7.1, (i) with respect to calendar year 1997, 28,323 shares
of Common Stock; (ii) with respect to calendar year 1998, 35,000 shares of
Common Stock minus the number of shares of Common Stock transferred by Xxxxxxxxx
in 1997; (iii) with respect to calendar year 1999, 58,494 shares of Common Stock
minus the aggregate number of shares of Common Stock transferred by Xxxxxxxxx in
1997 and 1998 and (iv) with respect to the calendar year 2000, 79,544 shares of
Common Stock, minus the aggregate number of shares of Common Stock transferred
by Xxxxxxxxx in 1997, 1998 and 1999.
"Xxxxxxxxx Percentage" means, as of any date, a fraction, the numerator
of which shall equal the aggregate number of shares of Common Stock transferred
prior to such date by Xxxxxxxxx and the denominator of which shall equal the
number of shares of Common Stock owned on the date hereof by Xxxxxxxxx.
"Shareholder" means each Person (other than the Company) who shall be a
party to this Agreement, whether in connection with the execution and delivery
hereof as of the date hereof, pursuant to Section 7.4 or otherwise, so long as
such Person shall beneficially own any Shares.
"Shares" means, with respect to a Shareholder, all shares of Common
Stock held by such Shareholder, whether acquired before, on or after the date of
this Agreement, including without limitation all shares of Common Stock issued
upon the conversion of shares of Old Stock owned by such Shareholder pursuant to
the Recapitalization. In the event of a stock dividend or distribution, or any
change in the Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, conversion, exchange of shares or the like, the
term "Shares" shall from and after the record date for such dividend,
distribution, split-up, recapitalization, combination, conversion, exchange or
the like, also include any and all such stock dividends and
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distributions and any and all shares into which or for which any or all of the
Shares may be changed or exchanged.
"Significant Action" means:
(i) the appointment or removal, with or without cause,
of the Chairman of the Board;
(ii) any merger, consolidation or other similar business
combination to which the Company or any of its Subsidiaries is a party;
except for any such merger, consolidation or business combination which
both (x) involves a Subsidiary of the Company as a party and (y) would
be a Major Acquisition but for the failure of such merger,
consolidation or business combination, as applicable, to equal or
exceed the monetary threshold specified in the definition of "Major
Acquisition".
(iii) any sale, lease, exchange, transfer or other
disposition, directly or indirectly, in a single transaction or series
of related transactions, of a majority of the tangible assets of the
Company and its Subsidiaries taken as a whole;
(iv) except for (A) the exercise or grant of stock options,
restricted stock, phantom stock, stock appreciation rights or similar
rights or interests pursuant to employee or director benefit plans of
the Company or any of its Subsidiaries or (B) the conversion, exchange
or exercise of any securities outstanding on the date hereof that are
convertible into, exchangeable for or exercisable for capital stock of
the Company, any increase or reduction in the authorized capital of the
Company or any Partial Subsidiary, or any recapitalization of the
Company or any Partial Subsidiary, or the creation of any additional
class of capital stock of the Company or any Partial Subsidiary, or the
sale, issuance, distribution, exchange, purchase or redemption of
shares of capital stock of the Company or any Partial Subsidiary, or
phantom equity, stock appreciation and similar interests and rights (or
any securities convertible into or exchangeable for capital stock of
the Company or any Partial Subsidiary or phantom equity, stock
appreciation and similar interests and rights) or any rights, warrants
or options to purchase, subscribe for or acquire any such capital stock
or convertible or exchangeable securities or phantom equity, stock
appreciation and similar interests and rights of the Company or any
Partial Subsidiary;
(v) any amendment, modification or repeal of any provision of
the certificate of incorporation or bylaws of the Company or any of its
Subsidiaries or any change in the jurisdiction of incorporation of the
Company or any of its Subsidiaries;
(vi) the approval of any dissolution or plan of liquidation of
the Company or any of its Subsidiaries;
(vii) the authorization of any general assignment by the
Company or any of its Subsidiaries for the benefit of creditors or of
the institution by the Company or any of
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its Subsidiaries of any proceeding to adjudicate it as bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, dissolution, protection, relief, or
composition of the Company or any of its Subsidiaries or their
respective debts under any existing or future law of any jurisdiction
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for the Company, any
of its Subsidiaries or for any substantial part of their respective
properties;
(viii) the declaration or making of any provision for payment
of, or the setting aside of assets with respect to, any dividend or
other distribution (in cash, securities or other property) by the
Company or any Partial Subsidiary with respect to any capital stock of
the Company or Partial Subsidiary or any redemption or repurchase of
any such capital stock, except for (A) dividends on Common Stock
payable in the form of Common Stock and (B) repurchases of capital
stock of the Company or any Partial Subsidiary pursuant to the terms of
employee or director benefit plans or employment agreements;
(ix) the creation, issuance, assumption, guarantee or
incurrence by the Company in any one transaction or series of related
transactions of any indebtedness or the making of any advance or loan
to any Person, that increases the aggregate amount of indebtedness,
loans, advances and guarantees of the Company to an amount that is at
least $30 million greater than the sum of (A) aggregate amount of such
indebtedness, loans, advances and guarantees outstanding on the date of
this Agreement and (B) the aggregate amount of availability remaining
under all credit facilities of the Company as of the date of this
Agreement;
(x) the termination of the engagement of Ernst & Young LLP as
the independent auditors for the Company and its Subsidiaries or the
selection of any other public accounting firm as the independent
auditors for the Company and its Subsidiaries;
(xi) any Major Acquisition;
(xii) any acquisition or construction of a new pasta
production facility by the Company or any of its Subsidiaries with an
aggregate cost of at least $30 million;
(xiii) any adoption of a shareholder rights plan; or
(xiv) any commitment to do any of the foregoing actions.
"Subsidiary" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions are at the time directly
or indirectly owned by a company.
"Subsidiary Board" means the board of directors of any Principal
Subsidiary.
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"Subsidiary Director" shall have the meaning set forth in Section
2.1(a) of this Agreement.
"Third Party" means a prospective purchaser of Shares in an
arm's-length transaction from a Shareholder where such purchaser is not a
Permitted Transferee of such Shareholder.
"Xxxxxxxx" means Xxxxxxx X. Xxxxxxxx, Xxxxxxxx Holdings, Inc., Xxxxxxxx
Holdings, L.P., and each of their respective Permitted Transferees in respect of
Shares transferred before or after the date hereof.
"Transfer" has the meaning set forth in Section 3.1(a) of this
Agreement.
"Underwritten Offering" means a firm-commitment underwritten public
offering of Registrable Stock pursuant to an effective registration statement.
"Xxxxxxx" means Xxxxxxx X. Xxxxxxx and each of his Permitted
Transferees in respect of Shares transferred before or after the date hereof.
"Xxxxxxx Allotment", subject to adjustment from time to time pursuant
to Section 7.1, means (i) with respect to the Company's fiscal year ending
December 31, 1998, no shares of Common Stock, (ii) with respect to the Company's
fiscal year ending December 31, 1999, 15,000 shares of Common Stock, (iii) with
respect to the Company's fiscal year ending December 31, 2000, 30,000 shares of
Common Stock, minus the aggregate number of shares of Common Stock transferred
by Xxxxxxx in fiscal year 1999, (iv) with respect to the Company's fiscal year
ending December 31, 2001, 45,000 shares of Common stock, minus the aggregate
number of shares of Common Stock transferred by Xxxxxxx in fiscal years 1999 and
2000 and (v) with respect to the Company's fiscal year ending December 31, 2002,
60,000 shares of Common Stock, minus the aggregate number of shares of Common
Stock transferred by Xxxxxxx in fiscal years 1999, 2000 and 2001.
(b) The term "MS Shareholder", to the extent an MS Shareholder shall
have transferred any of its Shares to one or more Permitted Transferees, shall
mean such MS Shareholder and such Permitted Transferees, taken together and any
right or action that may be taken at the election of such MS Shareholder may be
taken at the election of such MS Shareholder and all such Permitted Transferees.
ARTICLE 2
CORPORATE GOVERNANCE
2.1 Composition of the Board. (a) The Board shall initially consist of
nine directors, to be nominated to the Board as follows:
(i) one Director nominee shall be the Chairman of the Board
(initially Xxxxx X. Xxxxxxxxx);
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(ii) one Director nominee shall be the Chief Executive Officer
(initially Xxxxxxx X. Xxxxxxx);
(iii) MSLEF II shall be entitled to designate (a) two Director
nominees for so long as it owns at least 25% of the outstanding Common
Stock (one of whom initially shall be Xxxxxxx X. Xxxxxxxx) or (b) one
Director nominee for so long as it owns at least 5% but less than 25%
of the outstanding Shares;
(iv) MSCP shall be entitled to designate (a) two Director
nominees for so long as it owns at least 35% of the outstanding Common
Stock or (b) one Director nominee for so long as it owns at least 5%
but less than 35% of the outstanding Shares;
(v) If neither MSLEF II nor MSCP shall beneficially own at
least 5% of the outstanding Common Stock, then one of MSLEF II or MSCP
(as shall be determined by MSLEF II and MSCP in their sole discretion)
shall be entitled to designate one Director nominee for as long as the
MS Shareholders shall beneficially own, in the aggregate, at least 5%
of the outstanding Common Stock;
(vi) Citicorp shall be entitled to designate one Director
nominee for so long as it shall beneficially own at least 6.4% of the
outstanding Common Stock (on a Fully Diluted basis); and
(vii) The remaining Directors shall be nominated in the manner
provided for in the Bylaws; provided that at least two of such
Directors shall be independent Directors within the meaning of the
rules promulgated by the national securities exchange or national
market system on which the Common Stock is then listed or traded.
At their request, each of MSLEF and MSCP shall be entitled to designate
the same number of nominees to be elected as directors ("Subsidiary Directors")
of any Subsidiary or Subsidiaries of the Company (any such Subsidiary so long as
such a designation is in effect, a "Principal Subsidiary") as shall from time to
time be applicable pursuant to clauses (iii) through (v) above. So long as
Subsidiary Directors designated by MSLEF or MSCP shall continue to serve on a
Subsidiary Board pursuant to such designation, such Subsidiary Board shall
consist of nine directors, subject to adjustment from time to time pursuant to
Section 2.1(b).
If and for so long as MSLEF or MSCP shall have exercised their right
pursuant to this Section 2.1 to designate one or more Subsidiary Director
nominees, the Chairman of the Board and the Chief Executive Officer shall each
have the right to designate one Subsidiary Director nominee.
(b) The size of the Board and any Subsidiary Board may not be
decreased, but may be increased in the manner set forth in the Bylaws or in the
bylaws of such Principal Subsidiary, as applicable. In the event of any such
increase, each of MSCP and MSLEF II shall have the right to designate an
additional number of Director nominees or Subsidiary Director nominees, as
applicable, pursuant to Section 2.1(a) hereof, so that the total number of
Director nominees
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or Subsidiary Director nominees, as applicable, permitted to be designated by
MSCP and MSLEF II shall represent the same percentages, as nearly as may be, of
the increased Board or the increased Subsidiary Board, as applicable, as may be
designated by them pursuant to Section 2.1(a) hereof in the case of a Board or a
Subsidiary Board, as applicable, consisting of nine members.
(c) In the event that the Board is classified such that Directors serve
staggered terms, then (i) the Director nominees designated by the MS
Shareholders shall be allocated among such classes of Directors in as equal
proportions as is practicable and (ii) at any meeting of the Company's
shareholders at which Directors are elected, the MS Shareholders shall have the
right to designate nominees for election at such meeting such that the number of
nominees so designated which, together with incumbent Directors who had
previously been nominated by the MS Shareholders, does not exceed the maximum
number of nominees for Director that the MS Shareholders may designate pursuant
to Section 2.1(a) or (b) hereof, as applicable.
(d) Each Shareholder then entitled to vote for the election of
Directors agrees (i) to vote at any special or annual meeting of the
shareholders of the Company at which Directors are to be elected or (ii) to
execute a written consent, as the case may be, so as to ensure that the Board
consists of the Director nominees designated in accordance with this Section
2.1. The Company agrees to vote, or execute a written consent, as applicable, so
as to ensure that each Subsidiary Board includes the Subsidiary Director
nominees designated in accordance with this Section 2.1.
(e) The Shareholders shall take all actions necessary so that,
notwithstanding any other provision of this Agreement, at no time persons who
are nominees of the MS Shareholders shall constitute more than one-half of the
Directors. The Company shall take all actions necessary so that, notwithstanding
any other provision of this Agreement, at no time persons who are nominees of
the MS Shareholders shall constitute more than one-half of the directors of any
Principal Subsidiary.
2.2 Removal. Each Shareholder agrees that, if, at any time, it is then
entitled to vote for the removal of Directors, it (a) will not vote any of its
Shares in favor of the removal of any Director who shall have been designated or
nominated pursuant to Section 2.1 unless such removal shall be for Cause or the
Persons entitled to designate or nominate such Director shall have consented to
such removal in writing and (b) will, upon the written request of a Person
entitled to designate a Director pursuant to Section 2.1 hereof, take such
action by vote or consent as may be necessary to remove or replace such
Director. The Company (i) will not vote any of its shares of the capital stock
of any Principal Subsidiary in favor of the removal of any Subsidiary Director
who shall have been designated or nominated pursuant to Section 2.1 unless such
removal shall be for Cause or the MS Shareholder entitled to designate or
nominate such Subsidiary Director shall have consented to such removal in
writing and (ii) will, upon the written request of the MS Shareholder entitled
to designate a Subsidiary Director pursuant to Section 2.1 hereof, take such
action by vote or consent as may be necessary to remove or replace such
Subsidiary Director. Removal for "Cause" shall mean removal of a Director or a
Subsidiary Director, as applicable, because of such Director's or Subsidiary
Director's, as applicable, (v) willful and continued failure to substantially
perform his duties with the Company
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or Principal Subsidiary, as applicable, in his position as a director, (w)
willful conduct which is significantly injurious to the Company and its
Subsidiaries taken as a whole, monetarily or otherwise, (x) conviction for, or
guilty plea to, a felony or a crime involving moral turpitude, (y) abuse of
illegal drugs or other controlled substances or habitual intoxication, or (z)
willful breach of this Agreement. Upon the written request of any Person
entitled to designate a Director nominee pursuant to Section 2.1 hereof, each
Shareholder shall vote, or execute a written consent, to remove or replace such
Director. Upon the written request of any MS Shareholder entitled to designate a
Subsidiary Director nominee pursuant to Section 2.1 hereof, the Company shall
vote, or execute a written consent, to remove or replace such Subsidiary
Director nominee.
2.3 Vacancies. (a) If, as a result of death, disability, retirement,
resignation, removal (with or without Cause) or otherwise, there shall exist or
occur any vacancy of the Board or a Subsidiary Board:
(i) the Person entitled to designate the nomination of such
Director or Subsidiary Director, as applicable, whose death,
disability, retirement, resignation or removal resulted in such vacancy
may designate another individual nominee (the "Nominee") to be
appointed by the Board or such Subsidiary Board, as applicable, to fill
such capacity and serve as a Director or Subsidiary Director, as
applicable;
(ii) in the case of a vacancy on the Board, each Shareholder
then entitled to vote for the election of the Nominee as a Director
agrees that it will vote its shares, or execute a written consent, as
the case may be, in order to ensure that the Nominee be elected to the
Board; and
(iii) in the case of a vacancy on a Subsidiary Board, the
Company agrees that it will vote, or execute a written consent in
respect of, its shares of the capital stock of such Principal
Subsidiary in order to ensure that the Nominee be elected to such
Subsidiary Board.
(b) Any vacancy on the Board or any Subsidiary Board resulting from the
termination of the right of a Shareholder to designate a Director nominee or
Subsidiary Director nominee, as applicable, pursuant to Section 2.1 hereof shall
be filled in the manner set forth in the Bylaws or the bylaws of the applicable
Principal Subsidiary.
2.4 Meeting. The Board and any Subsidiary Board shall hold a regularly
scheduled meeting at least once every calendar quarter.
2.5 Action by Board. (a) A quorum of the Board or any Subsidiary Board
shall consist of a majority of the Directors or the Subsidiary Directors, as
applicable. All actions of the Board and any Subsidiary Board shall require the
affirmative vote of at least a majority of the Directors or the Subsidiary
Directors, as applicable, at a duly convened meeting of the Board or such
Subsidiary Board, as applicable, at which a quorum is present or the unanimous
written consent of the Board or such Subsidiary Board, as applicable; provided
that, in the event there
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is a vacancy on the Board or such Subsidiary Board, as applicable and an
individual has been nominated to fill such vacancy, the first order of business
shall be to fill such vacancy.
(b) The Chief Executive Officer shall submit to the Board, and obtain
its approval of, prior to the start of each fiscal year of the Company, a
business plan (the "Business Plan") setting forth the annual budget and
operating plan of the Company and its Subsidiaries for such fiscal year. The
Board shall receive monthly, quarterly and annual financial statements and other
appropriate reports concerning operations of the Company and its Subsidiaries
and other matters submitted to the Board.
(c) So long as the MS Shareholders shall beneficially own, in the
aggregate, shares of Common Stock representing at least 10% of the
then-outstanding shares of Common Stock, the Board and each Subsidiary Board
shall appoint to each committee of the Board or such Subsidiary Board, as
applicable, one Director or Subsidiary Director, as applicable, who has been
designated for service on such committee by the MS Shareholders. Each such
committee of the Board or such Subsidiary Board, as applicable, shall be
comprised of at least two Directors or Subsidiary Directors, as applicable,
except that the audit committee of the Board shall be comprised of at least
three Directors.
(d) So long as the MS Shareholders shall hold, in the aggregate, shares
of Common Stock representing at least 25% of the Common Stock then outstanding
on a Fully Diluted basis, the Company shall not, and shall cause its
Subsidiaries not to:
(i) take any Significant Action or any other action that would
constitute or result in the creation of any obligation (contingent or
otherwise) on the part of the Company with respect to a Significant
Action without the prior written approval of such Significant Action or
other action by the Board and the MS Shareholders, or
(ii) appoint a new Chief Executive Officer or a new chief
financial officer of the Company, without the prior approval of Board,
which approval shall reflect the affirmative vote of at least one of
the directors designated by MSLEF or MSCP pursuant to Section 2.1
hereof.
2.6 Conflicting Charter or Bylaw Provisions. Each Shareholder shall
vote its Shares, and shall take all other actions necessary, to ensure that the
Company's Certificate of Incorporation and Bylaws facilitate and do not at any
time conflict with any provision of this Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General. (a) Except as otherwise provided in Section 3.1(c), (d) or
(e) below, no Minority Shareholder will before December 31, 1998, directly or
indirectly, offer, sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of ("transfer") any Shares (or
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solicit any offers to buy or otherwise acquire, or to take a pledge of any
Shares), except as permitted by Sections 3.3, 4.2, 5.1(b)(ii) or 5.2(a) of this
Agreement and in compliance with the Securities Act.
(b) Thereafter, and subject to Section 3.1(c), (d) and (e), any
Minority Shareholder may transfer Shares (i) in compliance with the Securities
Act and as permitted by Section 3.3 or 4.2 of this Agreement, (ii) in an
Underwritten Offering pursuant to Section 5.1 or 5.2, (iii) in an open market
sale pursuant to Rule 144, or (iv) in the case of Xxxxxxxx or Citicorp, in a
private transaction for cash subject to Section 4.1; provided that no transfer
may knowingly be made to any Person who, based on information supplied to such
Minority Shareholder by the Company or otherwise known to such Minority
Shareholder, is an Adverse Person (or an Affiliate of an Adverse Person) or
would, together with the Affiliates of such Person, beneficially own in excess
of 10% of the outstanding Common Stock immediately after giving effect to such
transfer.
(c) Notwithstanding anything herein to the contrary, the aggregate
number of shares of Common Stock transferred by Xxxxxxxxx during any calendar
year pursuant to Section 3.1(a) or 3.1(b) may not exceed the greater of (i) the
Xxxxxxxxx Allotment applicable to such calendar year and (ii) the number of
shares of Common Stock owned by Xxxxxxxxx that, when added to the aggregate
number of shares of Common Stock previously transferred by Xxxxxxxxx to other
Persons, would cause the Xxxxxxxxx Percentage to equal the MS Percentage. The
provisions of this Section 3.1(c) will terminate on the earlier to occur of (i)
January 1, 2001, (ii) the date on which the MS Shareholders cease to own at
least 5% of the outstanding shares of Common Stock (calculated on a Fully
Diluted basis) or (iii) the termination of Xxxxx X. Xxxxxxxxx'x employment by
the Company by reason of the Disability (as defined in the Employment Agreement
between Xxxxx X. Xxxxxxxxx and the Company as in effect from time to time) or
death of Xxxxx X. Xxxxxxxxx.
(d) Notwithstanding anything herein to the contrary, the aggregate
number of shares of Common Stock transferred by Xxxxxxx during any fiscal year
pursuant to Section 3.1(a) or 3.1(b) (other than shares of Common Stock (i)
transferred to Permitted Transferees of Xxxxxxx or (ii) that are transferred to
the extent that all of the proceeds of such transfer are used to purchase shares
of Common Stock upon the exercise of stock options granted to Xxxxxxx) may not
exceed the Xxxxxxx Allotment for such fiscal year. The provisions of this
Section 3.1(d) shall terminate on the earliest to occur of (i) the date prior to
the third anniversary of the IPO Closing Date on which the MS Shareholders cease
to own at least 5% of the outstanding shares of Common Stock (calculated on a
Fully Diluted basis), (ii) the date on or after the third anniversary of the IPO
Closing Date on which the MS Shareholders cease to own at least 10% of the
outstanding shares of Common Stock (calculated on a Fully Diluted basis), (iii)
the second anniversary of (x) the termination of employment of Xxxxxxx X.
Xxxxxxx by the Company for Cause or (y) his resignation other than for Good
Reason (each, as defined in the Employment Agreement between Xxxxxxx X. Xxxxxxx
and the Company), (iv) the first anniversary of (x) the termination of
employment of Xxxxxxx X. Xxxxxxx by the Company other than for Cause or (y) his
resignation for Good Reason, (v) the Disability of Xxxxxxx X. Xxxxxxx (as
defined in the
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Employment Agreement between Xxxxxxx X. Xxxxxxx and the Company) or the death of
Xxxxxxx X. Xxxxxxx or (vi) the first day of the Company's 2003 fiscal year.
(e) Notwithstanding anything herein to the contrary, no individual
(other than Xxxxx X. Xxxxxxxxx or Xxxxxxx X. Xxxxxxx) who on the date hereof is
an officer or employee of the Company may transfer any of his Shares so long as
such individual remains an officer or employee of the Company or any of its
Subsidiaries, except as follows: (i) pursuant to clause (ii) of the definition
of "Permitted Transferee", (ii) as permitted by Section 4.2, (iii) as may be
permitted on a case-by-case basis by the compensation (or equivalent) committee
of the Board in its absolute discretion, or (iv) commencing on the second
anniversary of this Agreement, any Shares purchased by such individual at any
time (other than Shares (A) purchased with proceeds of a loan from the Company,
(B) acquired upon the exercise of a stock option, or (C) otherwise received
pursuant to any employee benefit plan of the Company), in each case pursuant to
this clause (iv), to the extent that such Shares are transferred in accordance
with Section 3.1(b).
(f) Notwithstanding anything herein to the contrary, but subject to the
approval of managing underwriters of the IPO and of the Company in their
discretion, Xxxxxxxx Holdings, L.P. may sell up to 65% of its Shares in the IPO.
This Section 3.1(f) shall be effective from and after the date of this
Agreement.
3.2 Legend on Share Certificates. (a) In addition to any other legend
that may be required by applicable law, each certificate for Shares that is
issued to any Shareholder shall bear a legend in substantially the following
form:
"THIS SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AS SET FORTH IN THE AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT DATED AS OF OCTOBER 6, 1997, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM AMERICAN ITALIAN PASTA COMPANY OR
ANY SUCCESSOR THERETO."
(b) If any shares of Common Stock cease to be subject to any
restrictions on transfer set forth in this Agreement, the Company shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the legend required by Section 3.2(a)
endorsed thereon.
3.3 Permitted Transferees. Notwithstanding anything in this Agreement
to the contrary, any Shareholder to which Section 3.1 and 3.2 is then applicable
may at any time transfer any or all of its Shares to any one or more of its
Permitted Transferees without the consent of the Board or any other Shareholder
or group of Shareholders (except as provided in clause (ix) of the definition of
"Permitted Transferee") so long as (a) such Permitted Transferee shall have
agreed in writing to be subject to the terms of this Agreement (unless such
Permitted Transferee qualifies as such solely by reason of clause (v) or (viii)
of the definition of "Permitted Transferee", in which case such Permitted
Transferee shall neither be required nor permitted to
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be subject to the terms of this Agreement) and (b) the transfer to such
Permitted Transferee is not in violation of the applicable federal or state or
foreign securities laws.
3.4 Improper Transfer. Any attempt to sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of any Shares not in compliance
with this Agreement shall be null and void and neither the Company nor any
transfer agent shall give any effect in the Company's stock records to such
attempted sale, assignment, transfer, grant of a participation in, pledge or
other disposition.
ARTICLE 4
RIGHTS OF FIRST REFUSAL;
RIGHTS TO PARTICIPATE IN A SALE
4.1 Right of First Refusal. (a) If any Existing Shareholder receives
from or otherwise negotiates with a Third Party in a private transaction a bona
fide offer to purchase any or all of the Shares beneficially owned by such
Existing Shareholder for cash (a "Section 4.1 Offer") and such Shareholder
intends to pursue a transfer of such Shares to such Third Party, such
Shareholder shall provide the Company written notice of such Section 4.1 Offer
(a "Section 4.1 Offer Notice"). The Section 4.1 Offer Notice shall identify the
Third Party making the Section 4.1 Offer, the number and class (or classes) of
Shares subject to the Offer, the cash price per share of Shares at which a sale
is proposed to be made (the "Section 4.1 Offer Price") and all other material
terms and conditions of the Section 4.1 Offer. Each Existing Shareholder agrees
that it will not enter into any discussions or negotiations with any Third Party
concerning a transaction that might constitute or result in a Section 4.1 Offer,
except (i) with the prior written consent of the Board, following a Board
determination that such Third Party is not an Adverse Person, and (ii) in full
compliance with Sections 3.1 and 6.1.
(b) The receipt of a Section 4.1 Offer Notice by the Company from an
Existing Shareholder shall constitute an offer by such Existing Shareholder to
sell to the Company for cash the Shares subject to the Section 4.1 Offer at the
Section 4.1 Offer Price. Such offer shall be irrevocable for 10 calendar days
after receipt of such Section 4.1 Offer Notice by the Company. During such
10-day period, the Company shall have the right to accept such offer as to all
(but not less than all) of such Shares by giving a written notice of acceptance
to the Existing Shareholder prior to the expiration of such 10-day period.
(c) The Company shall purchase and pay for all Shares it accepts within
a 20-calendar day period of its acceptance of the offer; provided that, if the
purchase and sale of such Shares is subject to any prior regulatory approval,
the time period during which such purchase and sale of accepted Shares must be
consummated shall be extended until the expiration of five Business Days after
all such approvals shall have been received.
(d) Upon the full or partial rejection or deemed rejection of the
Section 4.1 Offer by the Company or the failure to obtain any consent required
of the Company for the purchase of the Shares subject thereto within 120 days
after receipt of such Section 4.1 Offer Notice by the
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Company, there shall commence a 10 day period during which the Existing
Shareholder shall have the right to enter into an agreement with the Third Party
making the Section 4.1 Offer for the sale of any or all of the Shares subject to
the Section 4.1 Offer at a price in cash not less than the price indicated in
the Section 4.1 Offer; provided that such Third Party shall have agreed in
writing to be bound by the terms of this Agreement and the transfer to such
Third Party is not in violation of applicable federal or state or foreign
securities laws. The Existing Shareholder shall have 20 days from the execution
of such agreement to consummate the sale; provided that if the purchase and sale
of such Shares is subject to any prior regulatory approval, the time period
during which such purchase and sale may be consummated shall be extended until
the expiration of five Business Days after all such approvals shall have been
received; provided, further, that such time period shall not exceed 120 days
without the consent of the Company. If the Existing Shareholder does not
consummate the sale of any Shares subject to the Section 4.1 Offer in accordance
with the foregoing time limitations, the Existing Shareholder may not sell such
Shares during the 12-month period immediately following the expiration of the
foregoing time limitations and thereafter may not sell any Shares without
repeating the foregoing procedures.
(e) Notwithstanding anything in this Section to the contrary, the
provisions of this Section will not be applicable to transfers made pursuant to
and in compliance with Sections 3.3 or 4.2.
4.2 Right to Participate in a Sale. (a) If at any time after the MS
Shareholders have sold (other than to their respective Permitted Transferees),
in one or more transactions, an aggregate of 25% of the shares of Common Stock
beneficially owned by them on the date hereof (taking into account any stock
dividend, stock split or reverse stock split), the MS Shareholders propose to
transfer any of their respective Shares to a Third Party other than in an
Underwritten Offering or an open market sale pursuant to Rule 144 (a "Section
4.2 Sale"), the MS Shareholders shall provide written notice of such proposed
Section 4.2 Sale to the Minority Shareholders ("Section 4.2 Notice"). The
Section 4.2 Notice shall identify the number and class (or classes) of Shares
subject to the Section 4.2 Sale (the "Number of Shares"), the per Share
consideration for which a sale is proposed to be made (the "Section 4.2 Sale
Price) and all other material terms and conditions of the proposed Section 4.2
Sale. Each Minority Shareholder shall, as to Shares beneficially owned by it,
have the right and option, exercisable as set forth below, to participate in the
Section 4.2 Sale for up to the number of Shares as constitutes its Section 4.2
Pro Rata Portion of the Number of Shares, and the amount of Shares to be sold by
the MS Shareholders in the Section 4.2 Sale shall be reduced to the extent the
Minority Shareholders elect to participate. "Section 4.2 Pro Rata Portion"
means, with respect to each Minority Shareholder at the time of the Section 4.2
Sale, the proportion (expressed as a percentage) that its beneficial ownership
of Shares bears to all outstanding Shares at such time. Each Minority
Shareholder that desires to exercise such option shall, within five Business
Days after the date the Section 4.2 Notice is given (the Section 4.2 Notice
Period"), deliver to the MS Shareholders (i) written irrevocable notice of such
exercise, (ii) the certificate or certificates representing the Shares to be
sold or otherwise disposed of pursuant to such sale by such Minority
Shareholder, and (iii) a limited power-of-attorney authorizing the MS
Shareholders to sell or otherwise dispose of such Shares pursuant to the terms
of the Section 4.2 Sale. Delivery
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to the MS Shareholders of such notice, certificate or certificates, and the
limited power-of- attorney shall constitute an irrevocable acceptance of the
Section 4.2 Sale by the Minority Shareholder. Such Minority Shareholder shall
simultaneously provide a copy of such notice to the Company and the other
Minority Shareholders.
(b) The per share consideration to be paid to the MS
Shareholders and each Minority Shareholder participating in the Section 4.2 Sale
shall be the Section 4.2 Sale Price, as reduced by the per share amount of
expenses reasonably incurred by the MS Shareholders in connection with the
Section 4.2 Sale.
(c) Promptly after the consummation of the sale or other
disposition of the Shares of the MS Shareholders and the Minority Shareholders
pursuant to the Section 4.2 Sale, the MS Shareholders shall notify the Minority
Shareholders thereof, shall remit to each of the Minority Shareholders the total
consideration for the Shares of such Minority Shareholder sold or otherwise
disposed of pursuant thereto as computed pursuant to Section 4.2(b) hereof, and
shall furnish such other evidence of the completion and time of completion of
such sale or other disposition and the terms and expenses thereof as may be
reasonably requested by the Minority Shareholders.
(d) If at the termination of the Section 4.2 Notice Period any
Minority Shareholder shall not have elected to participate in the Section 4.2
Sale, such Minority Shareholder will be deemed to have waived any of and all of
its rights under this Section 4.2 with respect to the sale or other disposition
of its Shares pursuant to such Section 4.2 Sale. The MS Shareholders shall have
90 days in which to sell the applicable Shares at a price not higher than that
contained in the Section 4.2 Notice and on terms not more favorable to the MS
Shareholders than were contained in the Section 4.2 Notice; provided that if
such Section 4.2 Sale is subject to any prior regulatory approval, the time
period during which such Section 4.2 Sale may be consummated shall be extended
until the expiration of five Business Days after all such approvals shall have
been received. Promptly after any sale pursuant to this Section 4.2, the MS
Shareholders shall notify the Company of the consummation thereof and shall
furnish such evidence of the completion thereof (including time of completion)
of such sale and of the terms thereof as the Company may request. If, at the end
of such 90-day period, the MS Shareholders have not completed the sale of all
such Shares, the MS Shareholders shall return to such Minority Shareholders all
certificates representing the Shares which such Minority Shareholders delivered
for sale or other disposition pursuant to this Section 4.2, and all the
restrictions on sale or other disposition contained in this Agreement with
respect to Shares beneficially owned by the Minority Shareholders shall again be
in effect.
(e) Notwithstanding anything contained in this Section 4.2,
there shall be no liability on the part of the MS Shareholders to any Minority
Shareholder if the sale of Shares pursuant to this Section 4.2 is not
consummated for whatever reason. Any decision as to whether to sell Shares shall
be at the MS Shareholders' sole and absolute discretion.
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ARTICLE 5
REGISTRATION RIGHTS
5.1 Demand Registration. (a) At any time after December 31,
1998, upon the written request of Minority Shareholders owning not less than 60%
of the Registrable Stock then owned by the Minority Shareholders to the effect
that the Company effect the registration under the Securities Act of such
Registrable Stock, and specifying the intended method of disposition thereof,
the Company will promptly give written notice of such requested registration to
all other Shareholders, and thereupon will use all commercially reasonable
efforts to effect, as expeditiously as possible, the registration under the
Securities Act of:
(i) the Registrable Stock which the Company has been
so requested to register by the Minority Selling Shareholders,
and
(ii) all other Registrable Stock which the Company
has been requested to register by any other Shareholder by
written request received by the Company within 10 Business
Days after the giving of such written notice by the Company
(which request shall specify the intended method of
disposition of such Registrable Stock),
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Stock so to be
registered; provided that
(x) the Company shall not be obligated to file a
registration statement relating to a registration request
under this Section 5.1(a): (A) within a period of six months
after the effective date of any other registration statement
filed pursuant to Section 5.1(a) or (b) hereof, or in
connection with an acquisition by the Company of another
company (or the financing thereof) and (B) unless the
aggregate fair market value of the Registrable Stock which the
Company has been so requested to register by the Selling
Shareholders constitutes, as of the date of the Company's
receipt of the last of such timely requests, at least $15
million (based on the closing price of the Class A Common
Stock on such date);
(y) with respect to any registration statement filed,
or to be filed, pursuant to this Section 5.1(a), if the
Company shall furnish to the Selling Shareholders a certified
resolution of the Board stating that in the Board's good faith
judgment it would (because of the existence of, or in
anticipation of, any acquisition or financing activity, or the
unavailability for reasons beyond the Company's control of any
required financial statements, or any other event or condition
of similar significance to the Company) be significantly
disadvantageous (a "Disadvantageous Condition") to the Company
or its shareholders for such a registration statement to be
maintained effective, or to be filed and become effective, and
setting forth the general reasons for such judgment, the
Company shall be entitled to cause the Selling Shareholders to
discontinue the use of such registration statement or, in the
event no registration statement has yet been filed,
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shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice
of which the Company shall promptly deliver to the Selling
Shareholders) and upon receipt of any such notice of a
Disadvantageous Condition such Selling Shareholders will
forthwith discontinue use of the prospectus contained in such
registration statement and, if so directed by the Company,
each such Selling Shareholder will deliver to the Company all
copies, other than permanent file copies then in such Selling
Shareholder's possession, of the prospectus then covering such
Registrable Stock current at the time of receipt of such
notice, and, in the event no registration statement has yet
been filed, all drafts of the prospectus covering such
Registrable Stock; provided, however, that the Company shall
not be entitled to invoke a Disadvantageous Condition pursuant
to this Section 5.1(a) more than twice during any calendar
year; the duration of any single Disadvantageous Condition
shall not exceed 90 days; the aggregate duration of all such
Disadvantageous Conditions shall not exceed 180 days during
any calendar year; and at least 90 days shall elapse between
the termination of a Disadvantageous Condition and the
invocation of a subsequent Disadvantageous Condition by the
Company; and
(z) subject to Section 5.1(g) hereof, the Company
shall not be obligated to effect more than one registration
pursuant to this Section 5.1(a).
Promptly after the expiration of the 10-Business Day period referred to in
Section 5.1(a)(ii) hereof, the Company will notify all the Selling Shareholders
to be included in the registration of the other Selling Shareholders and the
number of shares of Registrable Stock requested to be included therein. The
Minority Selling Shareholders owning a majority of the Registrable Stock
requested to be registered by all Minority Selling Shareholders pursuant to this
Section 5.1(a) may, at any time (A) prior to the filing of the registration
statement relating to such registration, or (B) after filing but prior to the
effective date of such registration statement, revoke such request, without
liability to the Company or any of the other Selling Shareholders, by providing
a written notice to the Company revoking such request, provided that the Company
shall be deemed to have satisfied its obligations in respect of one registration
for purposes of clause (z) above. In the event that the Company shall give any
notice of the withdrawal of a registration statement contemplated by clause (y)
above, the Company shall at such time as it in good xxxxx xxxxx appropriate file
a new registration statement covering the Registrable Stock that was covered by
such withdrawn registration statement, and such registration statement shall be
maintained effective for such time as may be necessary so that the period of
effectiveness of such new registration statement, when aggregated with the
period during which such initial registration statement was effective, shall be
such time as may be otherwise required by Section 5.1(d) or 5.5 of this
Agreement. Notwithstanding anything contained in this Agreement to the contrary,
nothing herein shall be construed as requiring the Company to register any of
its securities other than Common Stock.
(b) At any time following the IPO Closing Date
(subject to any restrictions imposed by any underwriting agreement executed in
connection therewith), upon the written request of MS Shareholders owning not
less than 60% of the Registrable Stock then owned by
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the MS Shareholders to the effect that the Company effect the registration under
the Securities Act of such Registrable Stock, and specifying the intended method
of disposition thereof, the Company will promptly give written notice of such
requested registration to all other Shareholders, and thereupon will use all
commercially reasonable efforts to effect, as expeditiously as possible, the
registration under the Securities Act of:
(i) the Registrable Stock which the Company has been
so requested to register by the MS Selling Shareholders; and
(ii) all other Registrable Stock which the Company
has been requested to register by any other Shareholder by
written request received by the Company within 10 Business
Days after the giving of such written notice by the Company
(which request shall specify the intended method of
disposition of such Registrable Stock),
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Stock so to be
registered; provided that
(x) the Company shall not be obligated to file a
registration statement relating to a registration request
under this Section 5.1(b): (A) within a period of six months
after the effective date of any other registration statement
filed pursuant to Section 5.1(a) or (b) hereof and (B) unless
the Registrable Stock which the Company has been so requested
to register by the MS Selling Shareholders constitutes at such
time at least 15% (on a Fully Diluted basis) of the
Registrable Stock owned by all of the MS Shareholders;
(y) with respect to any registration statement filed,
or to be filed, pursuant to this Section 5.1(b), if the
Company shall furnish to the MS Selling Shareholders a
certified resolution of the Board stating that in the Board's
good faith judgment it would result in a Disadvantageous
Condition to the Company or its shareholders for such a
registration statement to be maintained effective, or to be
filed and become effective, and setting forth the general
reasons for such judgment, the Company shall be entitled to
cause the Selling Shareholders to discontinue the use of such
registration statement, or, in the event no registration
statement has yet been filed, shall be entitled not to file
any such registration statement, until such Disadvantageous
Condition no longer exists (notice of which the Company shall
promptly deliver to the Selling Shareholders) and upon receipt
of any such notice of a Disadvantageous Condition such Selling
Shareholders will forthwith discontinue use of the prospectus
contained in such registration statement and, if so directed
by the Company, each such Selling Shareholder will deliver to
the Company all copies, other than permanent file copies then
in such Selling Shareholder's possession, of the prospectus
then covering such Registrable Stock current at the time of
receipt of such notice, and, in the event no registration
statement has yet been filed, all drafts of the prospectus
covering such Registrable Stock; provided, however, that the
Company shall not be entitled to
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invoke and declare a Disadvantageous Condition pursuant to
this Section 5.1(b) more than twice during any calendar year;
the duration of any single Disadvantageous Condition shall not
exceed 90 days; the aggregate duration of all such
Disadvantageous Conditions shall not exceed 180 days during
any calendar year; and at least 90 days shall elapse between
the termination of a Disadvantageous Condition and the
invocation of a subsequent Disadvantageous Condition by the
Company; and
(z) subject to Section 5.1(h) hereof, the Company
shall not be obligated to effect more than three registrations
pursuant to this Section 5.1(b) and shall not be obliged to
effect more than one of such three registrations prior to the
first anniversary of the IPO Closing Date.
Promptly after the expiration of the 10-Business Day period referred to in
Section 5.1(b)(ii) hereof, the Company will notify all the Selling Shareholders
to be included in the registration of the other Selling Shareholders and the
number of shares of Registrable Stock requested to be included therein. The MS
Selling Shareholders owning a majority of the Registrable Stock requested to be
registered by all MS Selling Shareholders pursuant to this Section 5.1(b) may,
at any time prior to the filing of, or after the filing but prior to the
effective date of, the registration statement relating to such registration,
revoke such request, without liability to the Company or any of the other
Selling Shareholders, by providing a written notice to the Company revoking such
request, but the Company shall be deemed to have satisfied its obligations in
respect of one registration for purposes of clause (z) above. In the event that
the Company shall give any notice of the withdrawal of a registration statement
contemplated by clause (y) above, the Company shall at such time as it in good
xxxxx xxxxx appropriate file a new registration statement covering the
Registrable Stock that was covered by such withdrawn registration statement, and
such registration statement shall be maintained effective for such time as may
be necessary so that the period of effectiveness of such new registration
statement, when aggregated with the period during which such initial
registration statement was effective, shall be such time as may be otherwise
required by Section 5.1(d) or 5.5 of this Agreement. Notwithstanding anything
contained in this Agreement to the contrary, nothing herein shall be construed
as requiring the Company to register any of its securities other than Common
Stock.
(c) The Company will pay all Registration Expenses in
connection with any registration which is requested pursuant to this Section
5.1.
(d) A registration requested pursuant to this Section
5.1 shall not be deemed to have been effected unless the registration statement
relating thereto (i) has become effective under the Securities Act and (ii) has
remained effective for a period of at least 90 days (if declared effective
before the first anniversary of the IPO Closing Date), 180 days (if declared
effective on or after such first anniversary), or such shorter period in which
all Registrable Stock of the Selling Shareholders and their respective Permitted
Transferees included in such registration have actually been sold thereunder;
provided that if any effective registration statement requested pursuant to this
Section 5.1 is discontinued in connection with a Disadvantageous Condition, such
registration statement shall not be counted as a registration
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requested for purposes of Section 5.1 hereof; and provided, further, that if
after any registration statement requested pursuant to this Section 5.1 becomes
effective both (i) such registration statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court solely due to the actions or omissions to act of the Company and
(ii) less than 75% of the Registrable Stock included in such registration has
been sold thereunder, such shall not be counted as a registration requested
pursuant to Section 5.1 hereof.
(e) If any requested registration pursuant to this
Section 5.1 is in the form of an Underwritten Offering, the Selling Shareholders
owning a majority of the Registrable Stock included in such registration shall
have the right to select the managing underwriter or underwriters of such
Underwritten Offering; provided that (i) any such managing underwriter may be an
Affiliate of a Shareholder and (ii) such managing underwriter or underwriters
shall be reasonably acceptable to the Company. The Company may require the
offering pursuant to any registration requested pursuant to Section 5.1 to be in
the form of an Underwritten Offering. In that event, all Registrable Stock to be
registered in such registration shall be registered for sale only in such
Underwritten Offering.
(f) If the managing underwriter of an Underwritten
Offering requested pursuant to Section 5.1(a) or (b) shall advise the Company
that, in its view, the number of shares of Common Stock requested to be included
in such registration (including shares requested to be included pursuant to
clause (i) or (ii) of Section 5.1(a) or (b) and shares which the Company
requests to be included which are not Registrable Stock) exceeds the largest
number of shares of Common Stock which can be sold without having an adverse
effect on such Underwritten Offering, including the price at which such shares
can be sold (the "Maximum Offering Size"), the Company will include in such
registration, in the priority listed below, up to the Maximum Offering Size:
(i) first, all Registrable Stock requested to be
included in such registration pursuant to Section 5.1, pro
rata among the Selling Shareholders requesting such inclusion
on the basis of the relative number of Shares owned by them,
and
(ii) second, any Common Stock proposed to be
registered by the Company for its own account, and
(iii) third, any other Common Stock.
(g) If Registrable Stock representing at least 75% of
the number of Shares requested to be registered by the Minority Selling
Shareholders is not included in any registration requested pursuant to Section
5.1(a) (other than by reason of a cancellation of such request), then the
Minority Selling Shareholders may request that the Company effect an additional
registration under the Securities Act of all or part of the Minority Selling
Shareholders' Registrable Stock in accordance with the provisions of this
Section 5.1 and the Company shall pay the Registration Expenses in connection
with such additional registration.
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(h) If Registrable Stock representing at least 50% of
the number of Shares requested to be registered by the MS Selling Shareholders
is not included in any registration requested pursuant to Section 5.1(b) (other
than by reason of a cancellation of such request), then the MS Selling
Shareholders may request that the Company effect an additional registration
under the Securities Act of all or part of the MS Selling Shareholders'
Registrable Stock in accordance with the provisions of this Section 5.1 and the
Company shall pay the Registration Expenses in connection with such additional
registration.
5.2 Incidental Registration. (a) If the Company proposes to
register any of its Common Stock under the Securities Act (other than a
registration (A) on Form S-8 or S-4 or any successor or similar forms, (B)
relating to Common Stock issuable upon exercise of employee or director stock
options or in connection with any employee or director benefit or similar plan
of the Company, (C) in connection with a direct or indirect acquisition by the
Company of another company or the financing of such acquisition, or (D) pursuant
to Section 5.1 hereof), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Stock for sale to the public
under the Securities Act it will each such time, subject to the provisions of
Section 5.2(b) hereof, give prompt written notice to the Shareholders of its
intention to do so and of such Shareholders' rights under this Section 5.2, at
least 20 days prior to the anticipated filing date of the registration statement
relating to such registration. Any such notice shall offer each Shareholder the
opportunity to include in such registration statement such number of shares of
Registrable Stock as each such Shareholder may request (an "Incidental
Registration"). Upon the written request of any such Shareholder made within ten
days after the receipt of notice from the Company (which request shall specify
the number of shares of Registrable Stock intended to be disposed of by such
Shareholder), the Company will use all commercially reasonable efforts to effect
the registration under the Securities Act of all Registrable Stock which the
Company has been so requested to register by the Shareholders, to the extent
requisite to permit the disposition of the Registrable Stock so to be
registered; provided that (i) if such registration involves an Underwritten
Offering, all Shareholders requesting to be included in the Company's
registration must sell their Registrable Stock to the underwriters selected by
the Company on the same terms and conditions as apply to the Company and (ii)
if, at any time after giving written notice of its intention to register any
stock pursuant to this Section 5.2(a) and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such stock, the Company shall
give written notice to all Shareholders and, thereupon, shall be relieved of its
obligation to register any Registrable Stock in connection with such
registration (without prejudice, however, to rights of Shareholders under
Section 5.1 hereof). No registration effected under this Section 5.2 shall
relieve the Company of its obligations to effect a registration upon request to
the extent required by Section 5.1 hereof. The Company will pay all Registration
Expenses in connection with each registration of Registrable Stock requested
pursuant to this Section 5.2.
(b) If a registration pursuant to this Section 5.2
involves an Underwritten Offering and the managing underwriter advises the
Company that, in its view, the number of shares of Common Stock which the
Company, the Shareholders and any other Persons intend
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to include in such registration exceeds the Maximum Offering Size, the Company
will include in such registration, in the following priority, up to the Maximum
Offering Size:
(i) first, if the registration was initiated by the
Company for the sale of Common Stock for its own account, any
such Common Stock,
(ii) second, all (x) Registrable Stock requested to
be included in such registration by any Shareholders that have
rights pursuant to Section 5.2 hereof and (y) all Common Stock
requested to be included in such registration by any other
shareholders that hold demand registration rights, pro rata
among such Shareholders and other shareholders on the basis of
the relative number of shares of Registrable Stock or Common
Stock, respectively, owned by them,
(iii) third, all Common Stock held by other
shareholders of the Company who exercise "piggyback"
registration rights in connection with such registration, pro
rata among such shareholders on the basis of the relative
number of shares of Common Stock owned by them, and
(iv) fourth, any other Common Stock.
5.3 Holdback Agreements. Upon the request of the underwriters
of any Underwritten Offering, each Shareholder agrees not to effect any public
sale or distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Stock, and not to effect
any such public sale or distribution of any other Common Stock of the Company or
of any security convertible into or exchangeable or exercisable for any Common
Stock of the Company (in each case, other than as part of such Underwritten
Offering) during the seven-day period prior to, and during the 180-day period
which begins on, the effective date of such registration statement (except as
part of such registration), provided that this Section 5.3 shall not be
applicable to any Shareholder until two Business Days after such Shareholder has
received written notice of the anticipated or actual beginning of the seven-day
period referred to above.
(b) The Company agrees, if so requested by the managing
underwriters of an Underwritten Offering of Registrable Stock pursuant to
Section 5.1, not to effect any public sale or distribution of any Common Stock
or securities convertible into or exchangeable or exercisable for Common Stock
during the seven-day period prior to and the 180-day period after the effective
date of any registration statement with respect to such Underwritten Offering,
except as part of such Underwritten Offering or except in connection with any
dividend reinvestment, stock option, stock purchase or other benefit plan, or an
acquisition, merger or exchange offer (or the financing thereof).
5.4 Registration Procedures--General. Whenever Shareholders
request that any Registrable Stock be registered pursuant to Section 5.1 or 5.2
hereof, the Company will do each of the following:
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(a) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
furnish to each Selling Shareholder and each underwriter, if any, of the
Registrable Stock covered by such registration statement copies of such
registration statement as proposed to be filed, and thereafter the Company will
furnish to such Selling Shareholder and underwriter, if any, such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by reference
in this Agreement), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such Selling
Shareholder or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Stock owned by such Selling Shareholder.
(b) The Company will promptly notify each Selling
Shareholder of any stop order issued or threatened by the SEC and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(c) The Company will use all commercially reasonable
efforts to (i) register or qualify the Registrable Stock under such other
securities or blue sky laws of such jurisdictions in the United States as any
Selling Shareholder reasonably (in light of such Selling Shareholder's intended
plan of distribution) requests and (ii) cause such Registrable Stock to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be reasonably necessary or
advisable to enable such Selling Shareholder to consummate the disposition of
the Registrable Stock owned by such Selling Shareholder; provided that the
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (c), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction.
(d) The Company will immediately notify each Selling
Shareholder, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Stock, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and promptly prepare and make available to
each Selling Shareholder any such supplement or amendment.
(e) Upon the execution of confidentiality agreements
in form and substance satisfactory to the Company, the Company will make
available for inspection by any Selling Shareholder, any managing underwriter
participating in any Underwritten Offering and any attorney, accountant or other
professional retained by any such Selling Shareholder or managing underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, Directors and employees to
supply all information reasonably requested by
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any Inspectors in connection with such registration statement. Records which the
Company determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Selling Shareholder agrees that information obtained by it as
a result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the securities of the Company
or its Affiliates unless and until such is made generally available to the
public. Each Selling Shareholder further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(f) The Company will otherwise use all commercially
reasonable efforts to comply with all applicable rules and regulations of the
SEC, and make available to its securityholders, as soon as reasonably
practicable, an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(g) The Company will use its best efforts to list
such shares of Registrable Stock on each securities exchange on which the Common
Stock is then listed, if such shares of Registrable Stock are not already so
listed and if such listing is then permitted under the rules of such exchange,
and will provide a transfer agent and registrar for such Registrable Securities
not later than the effective date of such registration statement.
(h) The Company will, in connection with any
Underwritten Offering, furnish to each Selling Shareholder and to each
underwriter, if any, a signed counterpart, addressed to such underwriter, of (i)
an opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the Selling Shareholders
owning a majority of the Registrable Stock to be included in such registration
or the managing underwriter therefor reasonably requests.
(i) The Company will prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Stock covered by such registration statement until the end of the
period specified in Section 5.1(d) or 5.5 hereof, as applicable.
The Company may require each Selling Shareholder to
promptly furnish in writing to the Company such information regarding the
distribution of the Registrable Stock as the Company may from time to time
reasonably request and such other information as may be required by law or rule
or regulation of the SEC in connection with such registration.
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Each Selling Shareholder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 5.4(d) hereof, such Selling Shareholder will forthwith discontinue
disposition of Registrable Stock pursuant to the registration statement covering
such Registrable Stock until such Selling Shareholder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 5.4(d) hereof,
and, if so directed by the Company, such Selling Shareholder will deliver to the
Company all copies, other than any permanent file copies then in such Selling
Shareholder's possession, of the most recent prospectus covering such
Registrable Stock at the time of receipt of such notice. In the event that the
Company shall give such notice, the Company shall extend the period during which
such registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of notice pursuant
to Section 5.4(d) hereof to the date when the Company shall make available to
the Selling Shareholders a prospectus supplemented or amended to conform with
the requirements of Section 5.4(d) hereof.
5.5 Registration Procedures--Demand. Whenever Shareholders
request that any Registrable Stock be registered pursuant to Section 5.1 hereof,
the Company will, subject to the provisions of such Section, use all
commercially reasonable efforts to effect the registration of such Registrable
Stock in accordance with the intended method of disposition thereof as quickly
as practicable, and in connection with any such request, as expeditiously as
possible, prepare and file with the SEC a registration statement on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of the Registrable
Stock to be registered thereunder in accordance with the intended method of
distribution thereof, and use all commercially reasonable efforts to cause such
filed registration statement to become and remain effective for a period of not
less than 90 days (if declared effective before the first anniversary of the IPO
Closing Date) or 180 days (if declared effective on or after such first
anniversary).
5.6 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Selling Shareholder, each officer, director,
limited or general partner (together with each officer, director or partner
thereof), agent or investment adviser of such Selling Shareholder, and each
Person, if any, who controls such Selling Shareholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all Losses caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Stock (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such Losses are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information furnished in writing to the Company by such Selling
Shareholder or on such Selling Shareholder's behalf expressly for use therein;
provided that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any prospectus,
as the case may be, the indemnity agreement contained in this paragraph shall
not apply to the extent that any such Loss results from the fact that a current
copy of the prospectus (if amended or supplemented, as so amended or
supplemented) was not sent or given to the Person asserting any
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such Loss at or prior to the written confirmation of the sale of the Registrable
Stock to such Person if it is determined that the Company has provided such
prospectus to such Selling Shareholder and it was the responsibility of such
Selling Shareholder to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may be) and such
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) would have cured the defect giving rise to such Loss. The
Company also agrees to indemnify each underwriter of the Registrable Stock, its
officers, directors and partners and each Person who controls such underwriter
on substantially the same basis as that of the indemnification of the Selling
Shareholders provided in this Section 5.6.
5.7 Indemnification by Selling Shareholders. Each Selling
Shareholder owning Registrable Stock included in any registration statement
agrees, severally but not jointly, to indemnify and hold harmless the Company,
its officers, Directors and agents and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Shareholder, but only (i) with respect to information furnished
in writing by such Shareholder or on such Shareholder's behalf expressly for use
in any registration statement or prospectus relating to the Registrable Stock,
or any amendment or supplement thereto, or any preliminary prospectus or (ii) to
the extent that any Loss described in Section 5.6 results from the fact that a
current copy of the prospectus (if amended or supplemented, as so amended or
supplemented) was not sent or given to the Person asserting any such Loss at or
prior to the written confirmation of the sale of the Registrable Stock concerned
to such Person if it is determined that it was the responsibility of such
Shareholder to provide such Person with a current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) and such current
copy of the prospectus (or such amended or supplemented prospectus, as the case
may be) would have cured the defect giving rise to such Loss. Each such Selling
Shareholder also agrees to indemnify and hold harmless each underwriter of the
Registrable Stock, each of their respective officers, directors and partners and
each Person who controls any such underwriter on substantially the same basis as
that of the indemnification of the Company provided in this Section 5.7. As a
condition to including Registrable Stock in any registration statement filed in
accordance with Article 5 hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
5.8 Conduct of Indemnification Proceedings. In case any action
or proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 5.6 or 5.7, such Person (an "Indemnified Party") shall promptly notify
the Person against whom such indemnity may be sought (the "Indemnifying Party")
in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses; provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the extent
that the Indemnifying Party is materially prejudiced by such failure to notify.
In any such action or proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of
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such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any action or proceeding or related actions or proceedings in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Parties, and that all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Indemnified Parties, such firm shall be designated in writing by the
Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any action proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any Loss (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened action or proceeding in respect of which any Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such action or
proceeding.
5.9 Contribution. If the indemnification provided for in this
Article 5 is unavailable to the Indemnified Parties in respect of any Losses
referred to in this Agreement, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses, (i) as between the
Company and the Selling Shareholders owning Registrable Stock covered by a
registration statement on the one hand and the underwriters on the other, in
such proportion as is appropriate to reflect the relative benefits received by
the Company and such Shareholders on the one hand and the underwriters on the
other, from the offering of the Registrable Stock, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits but also the relative fault of the Company and such
Shareholders on the one hand and of the underwriters on the other in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations and (ii) as between the Company on the
one hand and each such Shareholder on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such
Shareholder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and such Shareholders on the one hand and the underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Shareholders bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company and each such Selling Shareholders, on the one hand, and of
the underwriters, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Selling Shareholder or by the
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underwriters. The relative fault of the Company on the one hand and of each such
Shareholder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not
be just and equitable if contribution pursuant to this Section 5.9 were
determined by pro rata allocation (even if the underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the Losses referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5.9, no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Stock underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Shareholder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Stock of such Shareholder were offered to the public
exceeds the amount of any damages which such Shareholder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Each Shareholder's obligation to contribute pursuant to this
Section 5.9, if any, is several in the proportion that the proceeds of the
offering received by such Shareholder bears to the total proceeds of the
offering received by all the Shareholders and not joint.
5.10 Participation in Underwritten Offering. No Person may
participate in any Underwritten Offering hereunder unless such Person (a) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and this Agreement.
5.11 No Inconsistent Agreements. From and after the date of
this Agreement, the Company will not enter into, or cause or permit any of its
Subsidiaries to enter into, any agreement which is inconsistent with the rights
granted to the Shareholders in this Agreement or otherwise conflicts with the
provisions hereof.
-32-
34
ARTICLE 6
CONFIDENTIALITY
6.1 Confidentiality. (a) Each Shareholder hereby agrees that
the Confidential Information (as defined below) that has been furnished to it or
him was made available in connection with such Shareholder's investment in the
Company. Each Shareholder agrees that he or it will not use any Confidential
Information, including without limitation any Confidential Information that may
be received after the date hereof, in any way to the competitive disadvantage of
the Company or in violation of any applicable Federal or state securities laws.
Each Shareholder further acknowledges and agrees that he or it will not disclose
any Confidential Information to any Person; provided that Confidential
Information may be disclosed as follows:
(i) to such Shareholder's Representatives (as defined
below) in the normal course of the performance of their
duties, provided that such Representatives have been advised
of the confidential nature of such information,
(ii) to the extent required by applicable law, rule
or regulation (including complying with any oral or written
questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar
process to which a Shareholder is subject),
(iii) to any Person to whom such Shareholder is
contemplating a transfer of his or its Shares, provided that
(x) such transfer would not be in violation of the provisions
hereof or any applicable federal or state securities laws and
(y) such Person is advised of the confidential nature of such
information and agrees to be bound by a confidentiality
agreement in form and substance satisfactory to the Company
and by the provisions of this Agreement, and
(iv) to any Person, if the prior written consent of
the Board shall have been obtained.
Nothing contained herein shall prevent the use of Confidential Information in
connection with the assertion or defense of any claim by or against the Company
or any Shareholder.
(b) "Confidential Information" means any information
concerning the Company, its financial condition, business, operations or
prospects in the possession of or to be furnished to any Shareholder in his or
its capacity as a shareholder of the Company or by virtue of his or its present
or former position as, or right to designate, a Director; provided that the term
"Confidential Information" does not include information which (i) was or becomes
generally available publicly other than as a result of a disclosure by a
Shareholder or his or its partners, directors, officers, employees, agents,
counsel, investment advisers or representatives (all such Persons being
collectively referred to as "Representatives") in violation of this Agreement or
any confidentiality agreement executed in accordance with Section 4.1, Section
5.4(e) or Section 6.1(a) or (ii) becomes available to a Shareholder on a
nonconfidential basis
-33-
35
from a source other than the Company or another Shareholder or his or its
Representatives, provided that such source is not, to the best of such
Shareholder's knowledge, bound by a confidentiality agreement with the Company
or another Person.
ARTICLE 7
MISCELLANEOUS
7.1 Adjustments. In the event that any shares of Common Stock
are changed into or exchanged for a different number or kind of shares or other
securities of the Company or of another company by reason of merger,
consolidation, other reorganization, recapitalization or reclassification, or in
the event of any combination of shares, stock split or stock dividend, then the
number and kind of shares of Common Stock subject to any provision of this
Agreement shall be adjusted appropriately so that the Company and Shareholders
will retain substantially the same rights and obligations as existed prior to
such change.
7.2 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
7.3 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
7.4 Assignability. This Agreement shall not be assignable by
any party hereto, except that any Person acquiring Shares who is required by the
terms of this Agreement to become a party hereto shall execute and deliver to
the Company an agreement to be bound hereby and shall thenceforth be a
Shareholder, and any Shareholder who ceases to own, directly or indirectly,
beneficially or of record, any Shares shall cease to be bound by the terms
hereof.
7.5 Amendment; Waiver. (a) No provision of this Agreement may
be waived except by an instrument in writing executed by the party against whom
the waiver is to be effective. No provision of Article 5 may be amended or
otherwise modified except by an instrument in writing executed by the Company
with the approval of the Board and Shareholders who own at least 80% of the
Registrable Stock then outstanding and in compliance with Section 7.5(b) or (c),
if applicable. No other provision of this Agreement may be amended or otherwise
modified except by an instrument in writing executed by the Company with the
approval of (i) the Board (in the case of an amendment the sole effect of which
is to add one or more Persons as parties to this Agreement) or (ii) the Board
and Shareholders who own at least 80% of the Shares then outstanding (in the
case of any other amendment or modification) and in compliance with Section
7.5(b) or (c), if applicable.
-34-
36
(b) In addition, no provision of this Agreement that
is specifically applicable to any MS Shareholder may be amended or otherwise
modified or terminated except with the consent of such MS Shareholder.
(c) None of the following provisions of this
Agreement may be amended or modified in any manner which adversely affects the
Minority Shareholder indicated below without the consent of such Minority
Shareholder:
(i) Xxxx: the definitions of "Xxxx Fund" and "Xxxx
Affiliate" and clauses (v) and (vi) of the definition of
"Permitted Transferee;"
(ii) Citicorp: the definition of "Citicorp," Section
4.1 (insofar as it relates to Citicorp), clause (iv) of
Section 3.1(b) (insofar as it relates to Citicorp), clause
(vii) and (viii) of the definition of "Permitted Transferee,"
and clause (vi) of Section 2.1(a);
(iii) JSS Management Company, Ltd.: clause (x) of the
definition of "Permitted Transferee;"
(iv) Xxxxxxxxx: the definitions of "Xxxxxxxxx" and
"Xxxxxxxxx Allotment" or Section 3.1(c);
(v) Xxxxxxxx: clauses (iii) and (vi) of the
definition of "Permitted Transferee", the definition of
"Xxxxxxxx," Section 4.1 (insofar as it relates to Xxxxxxxx),
and clause (iv) of Section 3.1(b) (insofar as it relates to
Xxxxxxxx); and
(vi) Xxxxxxx: the definitions of "Xxxxxxx" and
"Xxxxxxx Allotment" and Section 3.1(d).
7.6 Notices. All notices and other communications given or
made pursuant hereto or pursuant to any other agreement among the parties,
unless otherwise specified, shall be in writing and shall be deemed to have been
duly given or made if (i) sent by fax, (ii) delivered personally, (iii) sent by
registered or certified mail (postage prepaid, return receipt requested) or (iv)
sent by nationally-recognized courier service guaranteeing overnight delivery to
the parties at the fax number or address set forth on Exhibit B hereto or at
such other addresses as shall be furnished by the parties by like notice, and
such notice or communication shall be deemed to have been given or made upon
receipt. Any Person who becomes a Shareholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Shareholder.
7.7 Headings. The headings contained in this Agreement are
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
-35-
37
7.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
7.9 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
7.10 Specific Enforcement. Each of the Company and the
Shareholders agrees that money damages would not be a sufficient remedy for any
breach of this Agreement by the Company or such Shareholder, as applicable, and
that, in addition to all other remedies which may be available, the Shareholders
(in the event of a breach by the Company) or the Company (in the event of a
breach by a Shareholder) shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach.
7.11 No Waiver. No failure or delay by the Company or any
Shareholder in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
7.12 Consent to Jurisdiction. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court sitting
in Delaware over any suit, action or proceeding arising out of or relating to
this Agreement and waives, to the fullest extent permitted by law, any objection
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in such a court has been brought in any inconvenient forum.
7.13 Effective Date. Except as otherwise expressly provided
herein, this Agreement shall become effective immediately after the IPO Closing
and the Amended Original Agreement shall continue in full force and effect until
the IPO Closing.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in their individual capacity or caused it to be duly executed by their
respective authorized signatories thereunto duly authorized as of the day and
year first above written.
AMERICAN ITALIAN PASTA COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
10/1/97 5:00 p.m.
-36-
38
THE XXXXXX XXXXXXX LEVERAGED EQUITY FUND
II, L.P.
BY: XXXXXX XXXXXXX LEVERAGED EQUITY
FUND II, INC., AS GENERAL PARTNER
By:
------------------------------
Its:
-----------------------------
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
BY: MSCP III, L.P., AS GENERAL PARTNER
BY: XXXXXX XXXXXXX CAPITAL PARTNERS
III, INC., AS GENERAL PARTNER
By:
------------------------------
Its:
------------------------------
MSCP III 892 INVESTORS, L.P.
BY: MSCP III, L.P., AS GENERAL PARTNER
BY: XXXXXX XXXXXXX CAPITAL PARTNERS
III, INC. AS GENERAL PARTNER
By:
------------------------------
Its:
------------------------------
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
BY: MSCP III, L.P., AS GENERAL PARTNER
BY: XXXXXX XXXXXXX CAPITAL PARTNERS
III, INC., AS GENERAL PARTNER
By:
------------------------------
Its:
------------------------------
-37-
39
XXXXXX X. XXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Its: President
------------------------------
AMERICAN ITALIAN PASTA COMPANY
RETIREMENT SAVINGS PLAN
BY XXXXXX X. XXXX TRUST COMPANY, AS TRUSTEE
By:
------------------------------
Its:
------------------------------
GKB PRIVATE INVESTMENT PARTNERS, L.L.C.,
AS NOMINEE FOR:
XXXXXX X. XXXX CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Senior
Managing Director
GKB PRIVATE INVESTMENT PARTNERS, L.L.C.,
AS NOMINEE FOR:
XXXXXX X. XXXX EMPLOYEE EQUITY FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Senior
Managing Director
EXCELSIOR INVESTORS, L.L.C.
BY: XXXXXX X. XXXX MERCHANT BANC, LLC,
ITS MANAGER
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Senior
Managing Director
-38-
40
CITICORP VENTURE CAPITAL, LTD.
By:
--------------------------------------
Its:
-------------------------------------
CCT III PARTNERS, L.P.
By: CCT III CORPORATION,
AS GENERAL PARTNER
By:
-------------------------------------
Its:
-------------------------------------
Xxxxx X. Xxxxxxxxx
XXXXX X. XXXXXXXXX, TRUSTEE OF THE LIVING
TRUST OF XXXXX X. XXXXXXXXX, DATED MAY 24,
1985, OR SUCCESSOR TRUSTEE
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx, Trustee of the Living
Trust of Xxxxxx X. Xxxxxxxxx U/T/I Dated
May 24, 1985
-39-
41
XXXXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX, XX. UNDER THE MISSOURI
UNIFORM TRANSFERS TO MINORS LAW
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX, AS CUSTODIAN FOR XXXXXX
X. XXXXXXX, XX. UNDER THE MISSOURI UNIFORM
TRANSFERS TO MINORS LAW
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX, AS CUSTODIAN FOR XXXXXX
XXXXXXX XXXXXXX UNDER THE MISSOURI UNIFORM
TRANSFERS TO MINORS LAW
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX AND XXXXX X. XXXXXX, CO-
TRUSTEES UNDER THE XXXXXXX X. XXXXXXX
FAMILY GIFT TRUST OF 1996, DATED SEPTEMBER
27, 1996
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
-40-
42
XXXX XXXXXXXXX XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXX XXXX XXXXXXX, XX.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX XXXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
XXXXXXXX HOLDINGS, L.P.
By: XXXXXXXX HOLDINGS, INC.,
AS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx, President
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
(effective from and after the date of a
receipt of Shares in connection with any
distribution by Excelsior Investors,
L.L.C.)
-41-
43
/s/ Xxxxx Dear
-----------------------------------------
Xxxxx Dear
/s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
JSS MANAGEMENT COMPANY LTD.
By:
--------------------------------------
Its:
--------------------------------------
/s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxxxx
-42-
44
EXHIBIT A
CURRENT SHAREHOLDERS
------------------------------------------------------------------------------------------------------------------------
CLASS A
COMMON COMMON
SHAREHOLDER STOCK STOCK TOTAL
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Leveraged Equity Fund II, L.P.................. 984,668 0 984,668
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Capital Partners III, L.P...................... 369,765 0 369,765
------------------------------------------------------------------------------------------------------------------------
MSCP III 892 Investors, L.P................................... 37,857 0 37,857
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Capital Investors, L.P......................... 10,399 0 10,399
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx............................................ 3,314 7,369 10,683
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx Group, Inc..................................... 13,258 0 13,258
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx Capital Partners, L.P.......................... 14,799 0 14,799
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx Employee Equity Fund, L.P...................... 900 0 900
------------------------------------------------------------------------------------------------------------------------
Excelsior Investors, L.L.C.................................... 53,971 0 53,971
------------------------------------------------------------------------------------------------------------------------
Citicorp Venture Capital, Ltd................................. 25,355 119,816 145,171
------------------------------------------------------------------------------------------------------------------------
CCT III Partners, L.P......................................... 4,476 21,144 25,620
------------------------------------------------------------------------------------------------------------------------
JSS Management Company, Ltd................................... 4,475 0 4,475
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxxx.......................................... 2,323 0 2,323
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx........................................ 1,161 0 1,161
------------------------------------------------------------------------------------------------------------------------
Xxxxx Dear.................................................... 174 0 174
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx................................................. 581 0 581
------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx................................................ 232 0 232
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx............................................ 2,604 875 3,479
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxx Xxxxxxx, as Custodian for
Xxxxxx Xxxxxxx Xxxxxxx under the Missouri
Uniform Transfers to Minors Law........................... 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx Xxxxxxx........................................ 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx............................................. 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Xxxxxx.......................................... 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxx Xxxxxxx, Xx....................................... 50 0 50
A-1
45
------------------------------------------------------------------------------------------------------------------------
CLASS A
COMMON COMMON
SHAREHOLDER STOCK STOCK TOTAL
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx............................................... 6,933 1,200 8,133
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx ................................................ 3,167 580 3,747
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx............................................... 847 330 1,177
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx............................................... 2,124 330 2,454
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx............................................... 0 500 500
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx............................................ 0 500 500
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxxx
X. Xxxxxxx, Xx. under the Missouri Uniform
Transfers to Minors Law................................... 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxx
X. Xxxxxxx under the Missouri Uniform
Transfers to Minors Law................................... 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, Co-
Trustees under the Xxxxxxx X. Xxxxxxx
Family Gift Trust of 1996, Dated September
17, 1996.................................................. 1,904 0 1,904
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx............................................ 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx.............................................. 50 0 50
------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Holdings, L.P........................................ 0 156,530 156,530
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee of the Living
Trust of Xxxxx X. Xxxxxxxxx, Dated May 24,
1985...................................................... 8,000 0 8,000
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Trustee of the Living Trust
of Xxxxxx X. Xxxxxxxxx U/T/I Dated May 24,
1985...................................................... 0 1,860 1,860
------------------------------------------------------------------------------------------------------------------------
American Italian Pasta Company Retirement
Savings Plan.............................................. 5,088 0 5,088
----- - -----
------------------------------------------------------------------------------------------------------------------------
1,558,825 311,034 1,869,859
========= ======= =========
========================================================================================================================
A-2
46
EXHIBIT B
American Italian Pasta Company
0000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
The Xxxxxx Xxxxxxx Leveraged Equity Fund II, X.X.
Xxxxxx Xxxxxxx Capital Partners III, L.P.
MSCP III 892 Investors, X.X.
Xxxxxx Xxxxxxx Capital Investors, L.P.
c/o Morgan Xxxxxxx Capital Partners
Attention: Xxxxxxxx X. Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
X-0
00
Xxxxxxxx Xxxxxxxx, X.X.
x/x Xxxxxxx X. Xxxxxxxx
Xxxxxxxx'x Pet Pasta Products, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx, P.C.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
Citicorp Venture Capital, Ltd.
CCT III Partners, L.P.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
Xxxxx X. Xxxxxxxxx, Trustee of the Living Trust of Xxxxx X. Xxxxxxxxx,
U/T/A 5/24/85
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx
c/o Xxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, Co-Trustees Under the Xxxxxxx X.
Xxxxxxx Family Gift Trust of 1996, Dated September 27, 1996
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxx Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx
c/o Xxxxxxx X. Xxxxxxx
American Italian Pasta Company
0000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
B-2
48
with a copy to:
Xxxxx X. Xxx, Esq.
Xxxxxxxxx Xxxxxxx Weary Xxxxxxx & Xxxxxxxx X.X.
Xxxxx 0000
Two Pershing Square, 0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Xxxxxx Xxxxxx
0000 X. 000xx Xxxxxxx
Xxxxxxx, Xxxxxx 00000
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxx Dear
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
c/o American Italian Pasta Company
0000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Xxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No. (000) 000-0000
Xxxxxxx X. Xxxxxxxxxxx
JSS Management Company, Ltd.
c/o Xxxxx X. Xxxxxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile No. (000) 000-0000
Xxxxxx X. Xxxx Group, Inc.
Xxxxxx X. Xxxx Capital Partners, L.P.
Xxxxxx X. Xxxx Employee Equity Fund, L.P.
Excelsior Investors, L.L.C.
c/o Xx. Xxxxxxxx Xxxx
Xxxxxx X. Xxxx Merchant Banc, LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
B-3
49
The American Italian Pasta Company Retirement Savings Plan
c/o Xxxxxx X. Xxxx Trust Company
Attn: Xxxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
B-4
