SHAREHOLDER AGREEMENT
This Agreement dated as of May 22, 2000 (the "Shareholder Agreement") by
and between Xxxxxxx Foods, Inc., a Minnesota corporation ("Xxxxxxx") and the
Shareholders of Xxxxxxx listed on Schedule I (individually "Shareholder" and
collectively "Shareholders").
WHEREAS, Xxxxxxx is a publicly-held corporation whose common stock is
traded on the NASDAQ National Market System ("NASDAQ-NMS"); and
WHEREAS, the Shareholders desire to sell an aggregate of 1,500,000 shares
of common stock of Xxxxxxx (the "Shares") and Xxxxxxx desires to purchase such
Shares, in each case subject to the execution and delivery of this Shareholder
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions hereinafter set forth, the parties agree as follows:
SECTION 1. CERTAIN DEFINITIONS
As used in this Shareholder Agreement, the following terms shall have the
following meanings:
(a) "AFFILIATE" shall mean, as applied to a specified Person, any other
Person that directly or indirectly through one or more intermediaries, Controls,
or is Controlled by, or is under common Control with, such specified Person.
(b) "BENEFICIALLY OWN OR "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "Beneficial Ownership" of such securities in
accordance with the provisions of Rule 13d-3 under the Exchange Act, except that
a Person shall be deemed to be the Beneficial Owner of a security if that Person
has the right to acquire Beneficial Ownership of such security without giving
effect to the sixty (60) day provision provided under such rule. Without
duplicative counting of the same securities by the same Holder, Equity
Securities Beneficially Owned by a Person shall include Equity Securities
Beneficially Owned by all other Persons with whom such Person would constitute a
Group.
(c) "BUSINESS DAY" shall mean any day that is not a Saturday, a Sunday, a
bank holiday or any other day on which commercial banking institutions in
Minneapolis, Minnesota, are not generally open for business.
(d) "CLOSING" shall have the meaning set forth in Section 4(b) hereof.
(e) "CONTROL" shall mean, with respect to a specified Person, the position
or the possession, directly or indirectly, of the power to direct, cause the
direction of, or substantially influence the management and policies of such
Person, whether through the ownership of voting securities, partnership
interests or other ownership interests, or by contract or otherwise; provided
that, in any event, any Person who owns directly or indirectly ten percent (10%)
or more of the securities having ordinary voting power for the election of
directors or other governing body of a corporation or ten percent (10%) or more
of the partnership interests or other ownership interests of any other Person
shall be deemed to Control such corporation or other Person.
(f) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect from time to time.
(g) "EQUITY SECURITIES" shall mean: (i) any and all shares of capital
stock of Xxxxxxx; and (ii) any other securities, warrants, options or rights of
any nature (whether or not issued by Xxxxxxx) that are convertible into any,
exchangeable for, or exercisable for the purchase of, or otherwise give the
Holder thereof any rights in respect of, shares of capital stock of Xxxxxxx.
(h) "GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
(i) "GROUP" shall mean two or more Persons acting together for the purpose
of acquiring, holding, voting or disposing of Equity Securities, which Persons
would be required to file a statement on Schedule 13D or 13G with the SEC as a
"Person" within the meaning of Section 13(d)(3) of the
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Exchange Act if such Persons Beneficially Owned sufficient securities to require
such a filing under the Exchange Act.
(j) "HOLDER" shall mean any Shareholder that owns common stock of Xxxxxxx.
(k) "PERSON" shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture or
other entity of whatever nature.
(l) "REGISTRABLE SECURITIES" means any Equity Securities Beneficially
Owned by a Shareholder as of the date of this Shareholder Agreement and any
Equity Securities issued in respect thereof as a result of a stock dividend,
stock split, recapitalization, merger or other similar transaction with respect
to such Equity Securities Beneficially Owned.
(m) "REQUIREMENT OF LAW" shall mean, as to any specified Person, any law,
treaty, rule or regulation of any Governmental Authority applicable to such
Person or any of its property or to which such Person or any of its property is
subject.
(n) "SEC' shall mean the Securities and Exchange Commission or its
successor.
(o) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time, and a
reference to a particular section thereof shall be deemed to include a reference
to the comparable section, if any, of any similar federal statute.
(p) The "TOTAL VOTING POWER" at any measurement date shall mean the total
number of votes which could have been cast in an election of directors of
Xxxxxxx had a meeting of the shareholders of Xxxxxxx xxxx duly held based upon a
record date as of the measurement date if all Equity Securities then outstanding
and entitled to vote at such meeting were present and voted to the fullest
extent possible at such meeting.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Xxxxxxx represents and warrants to the Shareholders that:
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(a) Xxxxxxx has been duly incorporated and is validly existing and in good
standing as a corporation under the laws of the State of Minnesota, with
corporate power to transact in all material respects its business as now
conducted by it, to enter into this Shareholder Agreement, and to perform its
obligations hereunder.
(b) This Shareholder Agreement has been duly authorized, executed and
delivered by Xxxxxxx and constitutes a legal, valid and binding agreement of
Xxxxxxx, enforceable against Xxxxxxx in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors generally,
by general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(c) Except as otherwise contemplated in this Shareholder Agreement, no
consent, approval or authorization of, or filing, registration, qualification,
declaration or designation with, any Governmental Authority is required on the
part of Xxxxxxx as a condition to the valid execution, delivery and performance
of this Shareholder Agreement by Xxxxxxx, except where the absence of any such
consent, approval or authorization of, or the failure to make any such filing,
registration, qualification, declaration or designation with any Governmental
Authority would not have a material adverse effect on Xxxxxxx and its
subsidiaries taken as a whole or materially impair Michael's ability to perform
its obligations hereunder.
(d) The execution, delivery and performance by Xxxxxxx of this Shareholder
Agreement will not: (i) conflict with the Articles of Incorporation or Bylaws of
Xxxxxxx, as amended; (ii) conflict with, result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third-party right of termination, cancellation, material
modification or acceleration) under, any of the terms, conditions or provisions
of any trust agreement, voting agreement, shareholders agreement, voting trust,
note, bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind affecting
Xxxxxxx or to which
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Xxxxxxx is a party or by which any of its properties or assets are or may be
bound; (iii) violate any Requirement of Law applicable to Xxxxxxx; or (iv)
violate any order, injunction, judgment or decree of any court or other
Governmental Authority or any determination of an arbitrator applicable to
Xxxxxxx or any of Michael's properties or assets, except where such conflict,
breach or other default under clause (ii) or any such violation under clauses
(iii) or (iv) would not have a material adverse effect on Xxxxxxx and its
subsidiaries taken as a whole or materially impair Michael's ability to perform
its obligations hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder severally represents and warrants to Xxxxxxx that:
(a) Such Shareholder has the legal capacity, power and authority to enter
into and perform all of such Shareholder's obligations under this Shareholder
Agreement. This Shareholder Agreement has been duly executed and delivered by
each Shareholder and constitutes a legal, valid and binding agreement of each
Shareholder, enforceable against each Shareholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors generally, by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing. If such Shareholder is married
and such Shareholder's Equity Securities constitute community property, this
Shareholder Agreement has been duly authorized, executed and delivered by, and
constitutes a legal, valid and binding agreement of such Shareholder's spouse,
enforceable against such Person in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors generally,
by general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing.
(b) No consent, approval or authorization of, or filing, registration,
qualification, declaration or designation with, any Governmental Authority is
required on the part of such Shareholder as a
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condition to the valid execution, delivery and performance of this Shareholder
Agreement by such Shareholder.
(c) The execution, delivery and performance by such Shareholder of this
Shareholder Agreement will not: (i) conflict with, result in a violation or
breach of, or constitute (with or without notice or lapse of time or both) a
default (or give rise to any third-party right of termination, cancellation,
material modification or acceleration) under, any of the terms, conditions or
provisions of any trust agreement, voting agreement, shareholders agreement,
voting trust, note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind affecting such Shareholder or to which such Shareholder is a party or by
which any of such Shareholder's properties or assets are or may be bound; (ii)
violate any Requirement of Law applicable to such Shareholder; or (iii) violate
any order, injunction, judgment or decree of any court or other Governmental
Authority or any determination of an arbitrator applicable to such Shareholder
or any of such Shareholder's properties or assets.
(d) Such Shareholder is the sole record and beneficial owner of the Shares
identified in Schedule I as being sold by such Shareholder, and such Shares are
not subject to any claim, option, warrant or other call right, and upon delivery
to Xxxxxxx at Closing of certificates for such Shares, in transferable form,
Xxxxxxx will have good legal and beneficial title thereto, free of all liens or
encumbrances of any kind.
SECTION 4. SALE OF XXXXXXX SHARES
(a) At the Closing, each of the Shareholders shall sell and deliver to
Xxxxxxx and Xxxxxxx shall purchase from each Shareholder, the number of Shares
set forth opposite the Shareholder's name on SCHEDULE I. The purchase price for
each of the Shares shall be $21.77 per share, that being three percent (3%)
below the average closing price of Xxxxxxx common stock as reported on the
NASDAQ-NMS for the ten trading days commencing on May 8, 2000 and ending on May
19, 2000. The purchase price will
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be paid at Closing by wire transfer of same day funds to the account of each
Shareholder against receipt of certificates for the Shares in transferable form.
(b) Closing will be held at the offices of Maun & Simon, PLC in
Minneapolis, Minnesota on the date that this Shareholder Agreement is executed
and delivered by Xxxxxxx and each of the Shareholders, unless the Shareholders
and Xxxxxxx agree on a different time, place or manner of Closing. In addition
to the exchange of the consideration provided in Section 4(a), at the Closing
the Shareholders and Xxxxxxx will deliver to each other a certificate or
certificates confirming the truth and 'completeness of the representations and
warranties of such party as of the date of Closing and such other documents,
certificates or conveyances as counsel for Xxxxxxx and the Shareholders shall
reasonably request.
SECTION 5. COVENANTS OF THE SHAREHOLDERS
(a) ACQUISITION OF EQUITY SECURITIES. Until April 26, 2001 or the first
date that the Shareholders, collectively and in the aggregate, Beneficially Own
Equity Securities representing less than five percent (5%) of the Total Voting
Power, whichever is earlier, no Shareholder shall, directly or indirectly,
acquire, offer to acquire, agree to acquire, become the Beneficial Owner of, or
obtain any rights in respect of, any Equity Securities, by purchase or
otherwise, or take any action in furtherance thereof, if the effect of such
acquisition, agreement or other action would be (either immediately or upon
consummation of any such acquisition, agreement or other action, or expiration
of any period of time provided in any such acquisition, agreement or other
action) to increase the aggregate voting power in the election of directors of
all Equity Securities then Beneficially Owned by all Shareholders (such
aggregate voting power, (the "Aggregate Voting Power") to twenty percent (20%)
or more of the Total Voting Power (such maximum percentage limitation, the
"Maximum Percentage"). Notwithstanding anything to the contrary in this
Section 5(a), the Maximum Percentage may be exceeded if, and solely to the
extent that, the Aggregate Voting Power is or will be increased solely as a
result of a repurchase of any Voting Securities by Xxxxxxx or any of its
subsidiaries or any other change in Michael's
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capitalization or by reason of the issuance of stock options by Xxxxxxx to any
of the Shareholders pursuant to any stock option plan maintained by Xxxxxxx.
(b) NO VOTING TRUSTS. Until April 26, 2001 or the first date that the
Shareholders, collectively and in the aggregate, Beneficially Own Equity
Securities representing less than five percent (5%) of the Total Voting Power,
whichever is earlier, no Shareholder shall deposit any Equity Securities in a
voting trust or subject any Equity Securities to any arrangement or agreement
with respect to the voting of such Equity Securities except for a voting trust
or other arrangement among the Shareholders or any of their Affiliates.
(c) NO PROXY SOLICITATION ADVERSE TO BOARD RECOMMENDATION. Until April
26, 2001 or the first date that the Shareholders, collectively and in the
aggregate, Beneficially Own Equity Securities representing less than five
percent (5%) of the Total Voting Power, whichever is earlier, no Shareholder
shall solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) in opposition to the
recommendation of the Board of Directors of Xxxxxxx with respect to any matter.
(d) NO FORMATION OF GROUP. Until April 26, 2001 or the first date that
the Shareholders, collectively and in the aggregate, Beneficially Own Equity
Securities representing less than five percent (5%) of the Total Voting Power,
whichever is earlier, no Shareholder shall join a partnership, limited
partnership, syndicate or other Group, or otherwise act in concert with any
other Person, for the purpose of acquiring, holding, voting or disposing of
Equity Securities, or otherwise become a "Person" within the meaning of
Section 13(d)(3) of the Exchange Act (in each case other than solely with other
Shareholders or their Affiliates or with such Shareholders' or Affiliates'
representatives for estate planning purposes).
SECTION 6. ADDITIONAL COVENANTS OF SHAREHOLDERS
(a) RESTRICTIONS ON DISPOSITION. Except as otherwise permitted herein, the
Shareholders, individually and collectively, shall not:
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(i) until June 30, 2000, other than the Shares sold pursuant to this
Shareholder Agreement, sell or offer to sell any Equity Securities; or
(ii) during each of the calendar quarters ending September 30, 2000
and December 31, 2000, sell or offer to sell Equity Securities in excess of
200,000 shares of Xxxxxxx common stock, as adjusted for any share dividend,
stock split or other recapitalization of Equity Securities or;
(iii) prior to January 1, 2001, pledge, hypothecate or encumber any
Equity Securities Beneficially Owned by such Shareholder, except to a
financial institution pursuant to a bona fide pledge, hypothecation or
encumbrance to secure a bona fide loan for money borrowed to one or more
Shareholders, provided that, upon foreclosure on such Equity Securities,
such financial institution has executed and delivered to Xxxxxxx an
agreement whereby such financial institution agrees to be legally bound by
the terms of this Shareholder Agreement as a "Shareholder" as if such
financial institution were an original signatory hereto.
(b) RESTRICTIONS ON DISPOSITION. Until April 26, 2001 or the first date
that the Shareholders, collectively and in the aggregate, Beneficially Own
Equity Securities representing less than five percent (5%) of the Total Voting
Power, whichever is earlier, the Shareholders, individually or collectively,
shall not:
(i) sell or offer to sell Equity Securities having five percent (5%)
or more of the Total Voting Power of Xxxxxxx to any Person or Group in any
single transaction or series of transactions without providing Xxxxxxx the
first right to buy such shares as provided in Section 6(c) below; or
(ii) sell or offer to sell Equity Securities to any Person or Group
which the Shareholders have actual knowledge at time of the sale to
Beneficially Own five percent (5%) or more of the Total Voting Power of
Xxxxxxx or, to any Person or Group who, by virtue of the sale or offer,
would Beneficially Own, five percent (5%) or more of the Total Voting Power
of
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Xxxxxxx, without in either case, providing to Xxxxxxx a first right to buy
such shares as provided in Section 6(c) below.
(c) MICHAEL'S FIRST RIGHT TO PURCHASE. During the period and upon the
occurrence of any event described in Section 6(b)(i) or (ii), the Shareholder or
Shareholders proposing to sell or offer Equity Securities shall provide written
notice thereof to Xxxxxxx and shall offer to Xxxxxxx the right to purchase such
Equity Securities. The notice shall state the number of shares offered and the
price per share and any other conditions of the proposed sale or offer and shall
include a copy of any written document setting forth the terms of the proposed
sale or offer between the Shareholder or Shareholders and the purchaser or
offeree. Xxxxxxx shall have twenty (20) days from its receipt of such notice
within which to purchase the Equity Securities so offered. In the event that
Xxxxxxx does not complete the purchase within such twenty (20) day period, the
Shareholder or Shareholders sending the notice shall be permitted for a period
of thirty (30) days thereafter to sell Equity Securities equal in number to the
shares offered in such notice free of any restrictions under this Shareholder
Agreement at a price not less than the purchase price per share set forth in
such notice and under terms and conditions no more favorable to the purchaser
than the terms and conditions offered to Xxxxxxx in such notice.
(d) TENDER OFFERS. The restrictions set forth in Section 6(b) and the
first right to buy set forth in Section 6(c) shall not apply if a tender offer
is made for all or substantially all of the outstanding shares of Xxxxxxx Common
Stock and the Board of Directors of Xxxxxxx does not, within seven (7) days of
the commencement of such tender offer, announce its opposition to the tender
offer. Notwithstanding the foregoing, the following additional terms and
conditions shall apply in the event of the commencement of a tender offer:
(i) In the event that one or more of the Shareholders has given
notice to Xxxxxxx pursuant to Section 6(c) of this Shareholder Agreement
and, prior to the exercise of Michael's right to buy, a tender offer is
commenced for all or substantially all of the outstanding shares of Xxxxxxx
Common Xxxxx, Xxxxxxx shall, within twenty (20) days of the date that such
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Shareholder or Shareholders have given such notice, have the right to
acquire the Equity Securities subject to the notice at the higher of the
price offered by the Shareholder or Shareholders in the notice or the
tender offer price, regardless of whether Michael's Board of Directors has
announced its opposition to such tender offer.
(ii) In the event that one or more of the Shareholders has given
notice to Xxxxxxx pursuant to Section 6(c) of this Shareholder Agreement
and, subsequent to the exercise of Michael's right to buy, either a tender
offer is commenced for all or substantially all of the outstanding shares
of Xxxxxxx Common Stock or the Board of Directors rescinds its earlier
opposition to such tender xxxxx, Xxxxxxx shall have the option of (A)
rescinding its agreement to purchase the shares from the Shareholder or
Shareholders within two (2) days after the commencement of such tender
offer or the announcement by the Board of the rescission of opposition to
the tender offer, or (B) acquiring such shares at the higher of the price
offered by the Shareholder or Shareholders in the notice or the tender
offer price.
SECTION 7. LEGEND
All certificates representing shares of common stock of Xxxxxxx which are
subject to this Shareholder Agreement shall bear the following legend:
"The shares represented by this certificate are subject to certain
restrictions on the transfer, sale or other disposition of the shares
pursuant to an agreement dated May 22, 2000, between the issuer and the
registered owner hereof, a copy of which may be obtained from the secretary
of the corporation."
The Shareholders shall promptly deliver all certificates for Equity
Securities to the secretary of Xxxxxxx who shall place the foregoing legend on
the certificates. The Secretary of Xxxxxxx shall promptly return the legended
certificates to the Shareholders.
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SECTION 8. DIRECTORS
For a period of three years from the date of this Agreement, if the
Shareholders collectively own ten percent (10%) or more of the outstanding
common stock of Xxxxxxx, they shall be entitled to nominate two (2) persons to
stand for election as directors of Xxxxxxx. During such three-year period, if
the Shareholders own less than ten percent (10%), but more than five percent
(5%), of the outstanding common stock of Xxxxxxx, they shall be entitled to
nominate one (1) person to stand for election as a director of Xxxxxxx. Within
thirty (30) days following the end of each calendar year the Shareholders shall
give notice to Xxxxxxx of the nominees of the Shareholders. No director serving
as a nominee of the Shareholders shall be required to resign as a result of a
decline in the Shareholders' percentage ownership of common stock of Xxxxxxx.
If either Xxxxxxx Xxxxxxx or Xxxxxx X. Xxxxxxx voluntarily terminate employment
with the Company and its subsidiaries while he is serving as a director of the
Company, he will tender his resignation from the Board but the Board of
Directors shall not be required to accept such resignation.
SECTION 9. REGISTRATION RIGHTS
(a) REQUESTED REGISTRATION. Until April 26, 2001 or the date that all of
the shares of Xxxxxxx common stock Beneficially Owned by the Shareholders are
eligible for sale under Rule 144 of the SEC without any volume limitation,
whichever is earlier, subject to the following provisions a Shareholder may
request that Xxxxxxx register all or a portion of his Registrable Securities.
If Xxxxxxx shall receive a written request from one or more Shareholders that
Xxxxxxx effect the registration under the Securities Act of all or a part of
such Shareholders' Registrable Securities, then Xxxxxxx will, within ten (10)
days after receipt thereof, give notice to all other Shareholders of the receipt
of such request and each such holder may elect by written notice received by
Xxxxxxx within ten (10) days from the date of the notice by Xxxxxxx to have all
or part of his Registrable Securities included in such registration. Upon
receipt of such notice, Xxxxxxx will, as soon as practicable, use reasonable
efforts to effect the registration on Form S-3 and pursuant to Rule 415 (the
"Resale Registration Statement") under the Securities Act of all
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Registrable Securities which it has been so requested to register covering
resales from time to time of such Registrable Securities and Xxxxxxx shall use
its reasonable best efforts to: (i) cause the Resale Registration Statement to
be declared effective by the SEC as soon as practicable thereafter; and (ii)
maintain the effectiveness of the Resale Registration Statement continuously
until the earliest of: (A) the date on which the Shareholders no longer hold
Registrable Securities registered under the Resale Registration Statement or (B)
the third anniversary of this Shareholder Agreement or such lesser time as may
be permitted under Rule 144 under the Securities Act to enable the Shareholders
to sell the Registrable Securities under the Securities Act without such
registration. Xxxxxxx: (i) shall not be obligated to cause any special audit to
be undertaken in connection with any such registration; (ii) shall be entitled
to postpone for a reasonable period of time, but not in excess of ninety (90)
days, the filing of any registration statement otherwise required to be prepared
pursuant to this section if Xxxxxxx is, at such time, conducting or about to
conduct an underwritten public offering of Equity Securities (or securities
convertible into Equity Securities) and is advised in writing by its managing
underwriter that such underwritten public offer would, in its opinion, be
adversely effected by the registration so requested; and (iii) shall be entitled
to postpone such requested registration for up to ninety (90) days if Xxxxxxx
determines, in view of the advisability of deferring public disclosure of
material corporate developments or other information, that such registration and
the disclosure required to be made pursuant thereto would not be in the best
interest of Xxxxxxx at such time.
(b) EFFECTIVE REGISTRATION. A registration pursuant to this Section 9
will not be deemed to have been effected unless the Registration Statement has
been declared effective by the SEC; provided, however, that if after such
Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to such Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
Governmental Authority or court, such Registration Statement will be deemed not
to have been effected during the period of such interference until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
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(c) REGISTRATION EXPENSES. The Shareholders requesting registration shall
bear all expenses incurred in connection with the registration of the
Registrable Securities pursuant to this Section 9. Such expenses shall include,
without limitation, all printing, legal and accounting expenses (other than
normal audit expenses) incurred by Xxxxxxx and all registration and filing fees
imposed by the SEC, any state securities commission or the NASDAQ-NMS, any
brokerage fees or commissions and any taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Securities, and any legal, accounting and other expenses incurred by
such Shareholder.
(d) SELECTION OF UNDERWRITER AND INVESTMENT MANAGER. If a requested
registration pursuant to this Section 9 involves an underwritten offering, the
selling Shareholders shall have the exclusive right to select an investment
banker or bankers and managers to administer the offering.
(e) REGISTRATION PROCEDURES. If and whenever Xxxxxxx is required to use
its reasonable efforts to cause the registration of any Registrable Securities
under the Securities Act as provided in this Shareholder Agreement, Xxxxxxx
will, as expeditiously as reasonably possible: (i) prepare and file with the SEC
such amendments and supplements to such Resale Registration Statement and the
prospectus used in connection therewith and shall timely file with the SEC all
required filings under the Exchange Act as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Resale Registration Statement and to keep
the Resale Registration Statement effective, but only while it shall be required
under the provisions of this Shareholder Agreement to cause the Registration
Statement to remain current; (ii) furnish to each Shareholder seeking
registration hereunder such number of copies of the prospectus included in such
Resale Registration Statement (including each preliminary prospectus and summary
prospectus), and such other documents as each such Shareholder may reasonably
request in order to facilitate the disposition of the Registrable Securities by
such Shareholder but only while it shall be required under the provisions hereof
to cause the Registration Statement to remain current; (iii) use its reasonable
efforts to register or qualify such Registrable Securities covered by such
Resale Registration Statement under such
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other securities or blue sky laws of such jurisdictions as the Shareholders
shall reasonably request, except that Xxxxxxx shall not, for any purpose, be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this clause, it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or consent to general service of process in any such jurisdiction;
(iv) use its reasonable efforts to list the Registrable Securities on the
NASDAQ-NMS, if such Registrable Securities are not already so listed.
(f) POST-REGISTRATION NOTICES. Xxxxxxx shall promptly notify the
Shareholders: (i) when a prospectus or any prospectus supplement or
post-effective amendment (including any required filings under the Exchange Act)
has been filed and, with respect to the Resale Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of any
request by the SEC or any state securities authority for amendments or
supplements to the Resale Registration Statement and prospectus or for
additional information after the Resale Registration Statement has become
effective; (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Resale Registration Statement; (iv) of the issuance by any
state securities commission or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of the
Registrable Securities under such state's securities or "blue sky" laws; and (v)
of the happening of any event which makes any statement made in the Resale
Registration Statement or related prospectus untrue or which requires the making
of changes in such Resale Registration Statement or prospectus so that they will
not contain any 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, in light of the circumstances under which they were made, not
misleading. As soon as practicable, following the expiration of the Suspension
Period (as defined below), Xxxxxxx shall prepare and file with the SEC and
furnish a supplement or amendment to such prospectus so that, as thereafter
deliverable to the purchasers of such Registrable Securities, such prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact
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necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Upon receipt of any notice (a "Suspension Notice") by the Shareholders from
Xxxxxxx of the happening of any event of the kind described in this
Section 9(g), the Shareholders shall forthwith discontinue disposition of the
Registrable Securities pursuant to the Resale Registration Statement until the
Shareholders' receipt of the copies of the supplemental or amended prospectus
contemplated by this Section 9(g) or until the Shareholders have been advised in
writing (the "Advice") by Xxxxxxx that the use of the prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by Xxxxxxx,
will, or will request any broker or dealer acting as the Shareholders' agent(s)
to deliver to Xxxxxxx (at Michael's expense) all copies, other than permanent
file copies then in the Shareholders' or their brokers' or dealers' possession
of the prospectus covering such Registrable Securities current at the time of
receipt of such notice; provided, however, that in no event shall the period
from the date on which the Shareholders receive a Suspension Notice to the date
which the Shareholders receive either the Advice or copies of the supplemental
or amended prospectus contemplated in this Section 9(g) (the "Suspension
Period") exceed sixty (60) calendar days.
(g) INFORMATION. Xxxxxxx xxx require each selling Shareholder to furnish
it with such information regarding such selling Shareholder and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as Xxxxxxx xxx from time to time reasonably request in writing.
(h) UNDERWRITING AGREEMENT. The selling Shareholders shall execute and
deliver an underwriting agreement in customary form in connection with any
underwritten offering made pursuant to a registration hereunder.
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SECTION 10. INDEMNIFICATION AND CONTRIBUTION
(a) INDEMNIFICATION BY XXXXXXX. Xxxxxxx agrees to indemnify and hold
harmless to the full extent permitted by law, each Shareholder from and against
all losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable legal fees and expenses incurred by shareholders
(collectively, the "Damages") to which the Shareholders may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereto arise out of or are based upon any untrue or alleged untrue
statement of a material fact contained in the Resale Registration Statement (or
any supplement or amendment thereto, including filings under the Exchange Act)
pursuant to which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any prospectus (as
amended or supplemented if Xxxxxxx shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of the
circumstances under which they were made, not misleading, except insofar as such
Damages arise out of or are based upon any such untrue statement or omission
based upon information relating to the Shareholders furnished in writing to
Xxxxxxx by the Shareholders specifically for use therein; provided, however,
that Xxxxxxx shall not be liable to the Shareholders under this Section 10(a) to
the extent that any such Damages were caused by the fact that the Shareholders
sold Registrable Securities to a Person as to who it shall be established that
there was not sent or given, at or prior to written confirmation of such sale, a
copy of the prospectus as then amended or supplemented if, but only if: (i)
Xxxxxxx has previously furnished copies of such amended or supplemented
prospectus to the Shareholders; and (ii) such Damages were caused by any untrue
statement or omission or alleged untrue statement or omission contained in the
prospectus so delivered which was corrected in such amended or supplemented
prospectus.
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(b) INDEMNIFICATION BY SHAREHOLDERS. The Shareholders agree to indemnify,
jointly and severally, and hold harmless Xxxxxxx, its stockholders, directors,
officers and each Person, if any, who Controls Xxxxxxx 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 Xxxxxxx to the Shareholders in
Section 10(a) of this Shareholder Agreement but only with reference to
information relating to the Shareholders furnished in writing to Xxxxxxx by the
Shareholders specifically for use in the Resale Registration Statement (or any
amendment thereto) or any prospectus (or any amendment or supplement thereto);
provided, however, that the Shareholders shall not be obligated to provide such
indemnity to the extent that such Damages result from a failure of Xxxxxxx to
promptly amend or take action to correct or supplement any such Resale
Registration Statement or prospectus on the basis of corrected or supplemental
information provided in writing by the Shareholders to Xxxxxxx expressly for
such purpose. In no event shall the liability of the Shareholders hereunder be
greater in amount than the amount of the proceeds received by the Shareholders
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) CONTRIBUTION. To the extent that the indemnification provided for in
Section 10(a) or (b) is unavailable to an indemnified party or insufficient in
respect of any Damages, then each indemnifying party under such Section, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such Damages in
such proportion as is appropriate to reflect the relative fault of Xxxxxxx, on
the one hand, and the Shareholders, on the other hand, in connection with the
statements or omissions that resulted in such Damages, as well as any other
relevant equitable considerations. The relative fault of Xxxxxxx, on the one
hand, and the Shareholders, on the other hand, 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 Xxxxxxx or by the Shareholders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
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If indemnification is available under Section 10(a) or (b), the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in such sections without regard to the relative fault of said
indemnifying party or the indemnified party or any other equitable
considerations provided for in this Section 10(c). Xxxxxxx and the Shareholders
agree that it would not be just or equitable if contribution pursuant to this
Section 10(c) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in this section.
SECTION 11. GENERAL PROVISIONS
(a) GOVERNING LAW. This Shareholder Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Minnesota
without giving effect to any conflicts of law provisions.
(b) REMEDIES. Xxxxxxx, on the one hand, and the Shareholders, on the
other, acknowledge and agree that the other would not have an adequate remedy at
law for money damages in the event that any of the covenants or agreements in
this Shareholder Agreement of such party were not performed in accordance with
its terms, and it is therefore agreed that in addition to and without limiting
any other remedy or right such party may have, any party will have the right to
an injunction or other equitable relief (including specific performance) in any
court of competent jurisdiction, enjoining any such breach and enforcing
specifically the terms and provisions hereof. All rights, powers and remedies
provided under this Shareholder Agreement or otherwise available in respect
hereof at law or in equity shall be cumulative and not alternative.
(c) NOTICES. All notices, demands and other communications given under
this Shareholder Agreement shall be in writing, shall be given either by
personal delivery or by nationally recognized overnight courier or by
telecopier, and shall be deemed to have been given or made when personally
delivered, one Business Day after delivered to a nationally recognized overnight
courier, postage
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prepaid, and receipt requested, or one Business Day after transmission by
facsimile, receipt confirmed, addressed as follows:
(i) IF TO XXXXXXX:
Xxxxx X. Xxxxxxxxx
Chairman of the Board, President and Chief Executive Officer
Xxxxxxx Foods, Inc.
0000 Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Maun & Simon, PLC
0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile No.: 000-000-0000
(ii) IF TO THE SHAREHOLDERS:
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
c/o Papetti Holding Company
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx 0
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx X. X'Xxxxxx, XX Xxxxxx X. XxXxxx
X'Xxxxxx, Xxxxx & X'Xxxxxx Xxxxxxxx Xxxxxx LLP
Liberty Hall Center One Firstar Plaza
0000 Xxxxxx Xxxxxx Xxxxx 0000
Xxxxx, Xxx Xxxxxx 00000 Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile No.: 000-000-0000 Facsimile No.: 000-000-0000
or to such other address as any such Person may from time to time designate by
notice to the others.
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(d) SEVERABILITY. If any term, provision, covenant or restriction of this
Shareholder Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. The parties agree that they will use
their best efforts at all times to support and defend this Shareholder
Agreement.
(e) AMENDMENTS. This Shareholder Agreement may be amended only by an
agreement in writing signed by all of the parties hereto.
(f) DESCRIPTIVE HEADINGS. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Shareholder Agreement.
(g) COUNTERPARTS. This Shareholder Agreement shall become binding when
one or more counterparts hereof, individually or taken together, bears the
signatures of each of the parties hereto. This Shareholder Agreement may be
executed in any number of counterparts, each of which shall be an original as
against the party whose signature appears thereon, or on whose behalf such
counterpart is executed, but all of which when taken together shall be one and
the same statement.
(h) SUCCESSORS AND ASSIGNS. This Shareholder Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto, provided that a Shareholder may not assign any of
his rights or obligations hereunder to any Person without the prior written
consent of Xxxxxxx. Notwithstanding the foregoing, the consent of Xxxxxxx shall
not be required in connection with the assignment of this Shareholder Agreement
to the estate of a Shareholder.
(i) This Shareholder Agreement is intended to supercede any earlier-dated
shareholder agreements, including the Shareholder Agreement dated February 26,
1997, as amended February 25, 2000, in their entirety. From and after the date
of this Shareholder Agreement, all such earlier-dated shareholder agreements
shall terminate and all rights and obligations of the parties thereto shall be
governed solely by this Shareholder Agreement.
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IN WITNESS WHEREOF, the parties hereto intending to be legally bound have duly
executed this Shareholder Agreement, all as of the day and year first above
written.
XXXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Its: Chairman/Pres/CEO
----------------------------------
SHAREHOLDERS:
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
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SCHEDULE I
LIST OF SHAREHOLDERS
NUMBER OF
A. SHAREHOLDERS SHARES SOLD
------------ -----------
Xxxxxxx Xxxxxxx 375,000
Xxxxxx Xxxxxxx 375,000
Xxxxxx X. Xxxxxxx 750,000
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