1
EXHIBIT 10.10
D R A F T
SECOND AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
April 7, 1998
among
American Italian Pasta Company
and
Certain of its Shareholders
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D R A F T
THIS SECOND AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
dated as of April 7, 1998 ("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 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 each of the other signatories hereto are parties to the
Amended and Restated Shareholders Agreement dated as of October 6, 1997 (the
"Amended Original Agreement");
WHEREAS, the Shareholders (as defined below) presently own a number of
shares of Class A common stock, par value $0.001 per share (the "Common Stock"),
of the Company;
WHEREAS, the MS Shareholders, the Company and certain stockholders
expect to consummate the Offering (as defined herein) shortly following the date
hereof;
WHEREAS, in connection with the Offering, 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 Offering Closing (as
defined below), thereby binding each Shareholder to this Agreement in accordance
with Section 7.5 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. 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
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D R A F T
Stock would cause an adverse impact on the business, interests or prospects of
the Company 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.
"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.
"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.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" has the meaning specified in the recitals to this
Agreement.
"Director" means any member of the Board.
"Disability" means the inability to perform such Management
Shareholder's duties as an employee for a period of sixty consecutive days.
"Disadvantageous Condition" has the meaning specified in Section 5.1(a)
of this Agreement.
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D R A F T
"Exchange" means the New York Stock Exchange or such other stock
exchange or quotation system on which the Common Stock is then listed or
included.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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.
"Losses" means any losses, claims, damages, liabilities or expenses.
"Management Shareholders" means Xxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxx Dear, Xxxx Xxxxxxxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx
Xxxxx and Xxxxx X. Xxxxxx and each other employee of the Company who may become
a party to this Agreement.
"Management Shareholder Allotment" shall have the meaning given it in
Section 3.1(d).
"Maximum Offering Size" has the meaning specified in Section 5.1(f) of
this Agreement.
"MS Permitted Transferee" means (i) 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"); (ii) any managing director,
general partner, director, limited partner, officer or employee of a MS
Shareholder or a MS Affiliate (collectively, "MS Associates"); (iii) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any MS Associate: and (iv) 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.
"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" means, collectively, the MSCP Funds, MSLEF II and the
MS Permitted Transferees.
"Offering" means the offering of shares of Common Stock pursuant to
Securities Act registration statement No. 333-_______.
"Offering Closing" means the consummation of the Offering.
"Offering Closing Date" means the date of the Offering Closing.
"Permitted Transferee" means:
(i) For purposes of Section 3.3 only, any person (subject to
Section 3.1(b)) (A) in an Underwritten Offering pursuant to Section
5.1, (B) in an open market sale in accordance with Rule 144, or (C) in
a private transaction for cash;
(ii) spouses, parents, children, grandchildren, grandparents,
brothers, sisters and spouses and children of brothers and sisters, and
trusts if the majority of the beneficial
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interests are held by such persons (for purposes of this clause,
Permitted Transferees shall include such relatives whether or not they
were adopted); provided that no more that 5,000 Shares are transferred
pursuant to this clause (ii) in any calendar year;
(iii) any charitable foundation or trust or a not-for-profit
(all as determined under the Code) if the transferee does not give,
directly or indirectly, any consideration for such transfer; provided
that no more that 5,000 Shares are transferred pursuant to this clause
(iii) in any calendar year;
(iv) the Company for payment of the exercise price of awards
granted by the Company to such Management Shareholder pursuant to
compensation plans adopted by the Company or for payment of the
applicable taxes (federal, state and local) due to the Company upon
exercise of such awards to the extent permitted by the pertinent
compensation plan, the Board or a committee thereof; or
(v) as the Board may otherwise permit in its sole discretion.
"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.
"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
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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
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.
"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, with respect to any registration of
Registrable Stock under the Securities Act, the 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.
"Senior Management Allotment" means, subject to adjustment from time to
time pursuant to Section 7.1, (i) with respect to calendar year 1998, 215,000
shares of Common Stock; (ii) with respect to calendar year 1999, 360,000 shares
of Common Stock minus the number of shares of Common Stock transferred by Xxxxx
X. Xxxxxxxxx or Xxxxxxx X. Xxxxxxx, as the case may be, in 1998; and (iii) with
respect to calendar year 2000, 490,000 shares of Common Stock minus the
aggregate number of shares of Common Stock transferred by Xxxxx X. Xxxxxxxxx or
Xxxxxxx X. Xxxxxxx, as the case may be, in 1998 and 1999.
"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. 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 distributions and any and all shares into
which or for which any or all of the Shares may be changed or exchanged.
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D R A F T
"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.
"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 (other than a Permitted Transferee as defined clause (i) of
the definition of Permitted Transferee) of such Shareholder.
"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.
ARTICLE 2
CORPORATE GOVERNANCE
2.1 Composition of the Board. (a) 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 to the Board (the current nominee is Xxxxxxxx X.
Xxxxxx) for as long as the MS Shareholders shall beneficially own any of the
outstanding Common Stock.
(b) 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.
(c) 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.
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 (as
defined below) 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 an 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. Removal for "Cause" shall mean removal of a Director
because of such Director's (v) willful and continued failure to substantially
perform his duties with the Company in his position as a director, (w) willful
conduct which is significantly injurious to the Company and its Subsidiaries
taken as a whole, monetarily
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D R A F T
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.
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,
(i) the Person entitled to designate the nomination of such
Director whose death, disability, retirement, resignation or removal
resulted in such vacancy may designate another individual nominee (the
"Nominee") to be appointed by the Board to fill such capacity and serve
as a Director; and
(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.
(b) Any vacancy on the Board resulting from the termination of the
right of a Shareholder to designate a Director nominee, pursuant to Section 2.1
hereof, shall be filled in the manner set forth in the Bylaws.
2.4 Meeting. The Board shall hold a regularly scheduled meeting at
least once every calendar quarter.
2.5 Action by Board. (a) A quorum of the Board shall consist of a
majority of the Directors. All actions of the Board shall require the
affirmative vote of at least a majority of the Directors at a duly convened
meeting of the Board at which a quorum is present or the unanimous written
consent of the Board; provided that, in the event there is a vacancy on the
Board and an individual has been nominated to fill such vacancy, the first order
of business shall be to fill such vacancy.
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.
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D R A F T
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General. (a) No Management Shareholder, directly or indirectly,
shall offer, sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of any Shares (or solicit any offers to buy or otherwise
acquire, or to take a pledge of any Shares) (collectively "transfer"), except as
permitted by Sections 3.3, 5.1(b)(ii) or 5.2(a), of this Agreement (subject to
Sections 3.1(b), 3.1(c) and 3.1(d)) and in compliance with the Securities Act,
applicable state and foreign securities laws and the Company's policies.
(b) No transfer by a Management Shareholder permitted under this
Article 3 may knowingly be made to any Person who, based on information supplied
to such Management Shareholder by the Company or otherwise known to such
Management 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 each of Xxxxx X. Xxxxxxxxx or
Xxxxxxx X. Xxxxxxx during any calendar year pursuant to Section 3.3 may not
exceed the Senior Management Allotment applicable to such calendar year. The
provisions of this Article 3 will terminate on January 1, 2001, unless earlier
terminated as provided in Article 7.
(d) Notwithstanding anything herein to the contrary, the aggregate
number of shares of Common Stock transferred by a Management Shareholder (other
than Xxxxx X. Xxxxxxxxx or Xxxxxxx X. Xxxxxxx) during any calendar year may not
exceed the greater of (the "Management Shareholder Allotment"): (i) number of
options granted to the Management Shareholder that vest or become exercisable in
that calendar year; or (ii) 10 percent of the total of the Shares currently held
by such Management Shareholder plus currently vested or exercisable options or
other Awards granted to such Management Shareholder; provided, however, that the
Chairman and/or the Chief Executive Officer may, in their sole discretion,
prohibit transfers to a Permitted Transferee pursuant to clause (i) of the
definition of Permitted Transferee. To the extent any Management Shareholder has
not transferred his Management Shareholder Allotment in any calendar year that
could have been transferred pursuant to this Section 3.1(d), such Management
Shareholder shall be able to transfer in future calendar years such Shares plus
any additional Shares that become available for transfer pursuant to this
Section 3.1(d). Notwithstanding the above, in determining the Management
Shareholder Allotment, such amount shall be reduced by the number of Shares
transferred by such Management Shareholder to his Permitted Transferees unless
otherwise specified by the Board in the exercise of its discretion pursuant to
clause (v) of the definition of Permitted Transferee.
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D R A F T
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 Management Shareholder shall bear a legend in substantially the
following form:
"THIS SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
AS SET FORTH IN THE SECOND AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT DATED AS OF APRIL 7, 1998, 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. Any Management Shareholder may, subject to
Sections 3.1(b), 3.1(c) and 3.1(d), at any time transfer any or all of his
Shares to any one or more of his Permitted Transferees without the consent of
the Board or any other Shareholder or group of Shareholders and, except as
provided in Section 7.4, without such Permitted Transferee being
required to have agreed in writing to be subject to the terms of this Agreement
(unless required by the Board in the exercise of its sole discretion pursuant
to clause (v) of the definition of Permitted Transferee).
Notwithstanding anything to the contrary in this Section 3.3, no
Management Shareholder may transfer pursuant to this Section 3.3 a total number
of Shares when combined with the Shares transferred by such Management
Shareholder pursuant to Section 3.1 is greater than the Senior Management
Allotment or cumulatively available Management Shareholder Allotment, as the
case may be.
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.
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D R A F T
ARTICLE 4
NOTICE OF SALE
For so long as either MSLEF II or any of the MSCP Funds or Citicorp
owns 5% or more of the outstanding Common Stock (on a Fully Diluted basis), such
Shareholder shall notify the Company if such Shareholder negotiates with a Third
Party in a private transaction a bona fide offer to purchase all of the Shares
beneficially owned by such Shareholder for cash and such Shareholder intends to
pursue a transfer of such Shares to such Third Party.
ARTICLE 5
REGISTRATION RIGHTS
5.1 Demand Registration. (a) At any time after December 31, 1998, upon
the written request of Citicorp 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 Citicorp, 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) six months after the effective date of any other registration
statement filed pursuant to Section 5.1(a) or Section 5.1(b) 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 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
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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, 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. Citicorp
may, at any time (A) prior to the filing 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
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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) Upon the written request of MS Shareholders owning not less than
60% of the Registrable Stock then owned by 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 percent (on a Fully Diluted basis) of the
Registrable Stock owned by 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
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X X X X X
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 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 one registration pursuant to this
Section 5.1(b).
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.
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D R A F T
(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 120 days 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 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.
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D R A F T
(g) If Registrable Stock representing at least 75% of the number of
Shares requested to be registered by Citicorp is not included in any
registration requested pursuant to Section 5.1(a) (other than by reason of a
cancellation of such request), then Citicorp may request that the Company effect
an additional registration under the Securities Act of all or part of the
Citicorp's 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.
(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
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D R A F T
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 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. (a) 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
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D R A F T
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:
(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
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D R A F T
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 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.
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D R A F T
(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.
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 120 days.
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
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D R A F T
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 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
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D R A F T
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 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
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D R A F T
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 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
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X X X X X
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.
ARTICLE 6
CONFIDENTIALITY
The confidentiality provisions set forth in Article 6 of the Amended
Original Agreement continue to be applicable.
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
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D R A F T
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. (a) This Agreement may not be assigned by a party
hereto to any Person; provided that: (i) any Person who is required by
the terms of this Agreement to become a party by Article II hereof, and
any Permitted Transferee of a Management Shareholder described in clause (i)(c)
and clause (ii) of the definition of "Permitted Transferee" shall
execute and deliver to the Company an agreement to be bound hereby in form and
substance reasonably satisfactory to the Company and shall thenceforth be a
Shareholder, and (ii) any MS Shareholder may assign its rights hereunder to a
MS Permitted Transferee of such MS Shareholder in connection with the
acquisition of shares by such MS Permitted Transferee. The transferring
MS Shareholder shall promptly notify the Company after any such assignment of
the Person to whom this Agreement was assigned in whole or in part.
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 two-thirds 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.
(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.
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26
D R A F T
(c) None of the following provisions of this Agreement may be amended
or modified in any manner which adversely affects the Shareholders indicated
below without the consent of such Shareholder:
(i) Citicorp: the definition of "Citicorp";
(ii) Xxxxx X. Xxxxxxxxx: the definition of "Senior Management
Allotment;" Section 3.1(c); or the definition of "Permitted Transferee"
as such term applies to such Person;
(iii) Xxxxxxx X. Xxxxxxx: the definition of "Senior Management
Allotment;" Section 3.1(c); or the definition of "Permitted
Transferree" as such term applies to such Person; and
(vi) Management Shareholders (other than Xxxxx X. Xxxxxxxxx
and Xxxxxxx X. Xxxxxxx): the definition of "Management Shareholders
Allotment;" Section 3.1(d); or the definition of "Permitted
Transferree" as such term applies to such Person.
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 A 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.
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
-25-
27
D R A F T
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. This Agreement shall become immediately following
the Offering Closing. Until such time, the Amended Original Agreement shall
continue in full force and effect until the Offering Closing; provided,
however, the confidentiality provisions of Article 6 of the Amended Original
Agreement shall continue in force as provided herein.
7.14 Release of Certain Shareholders. The following Persons are no
longer subject to this Agreement except for obligations arising prior to the
effective date of this Agreement or subsequent to such date as a result of such
Persons receiving shares of Common Stock from a Shareholder with the condition
of becoming a party to this Agreement again:
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxxx X. Xxxxxxx, Xx. Under the
Missouri Uniform Transfers to Minors Law;
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxx X. Xxxxxxx, Xx. Under the
Missouri Uniform Transfers to Minors Law;
Xxxxxxx X. Xxxxxxx, as Custodian for Xxxxxx Xxxxxxx Xxxxxxx Under the
Missouri Uniform Transfers to Minors Law;
Xxxxxxx X. Xxxxxxx;
Xxxxx X. Xxxxxxx;
Xxxx Xxxxxxxxx Xxxxxxx;
Xxxxxx Xxxx Xxxxxxx, Xx.;
-00-
00
X X X X X
Xxxxxxx X. Xxxxxx;
Xxxxxxx Xxxxx Xxxxxx; and
Xxxxxx Xxxxxx.
Such Persons hereby acknowledge they no longer subject to the terms and
conditions and no longer have the rights and privileges of the Amended Original
Agreement.
7.15 Termination. This Agreement or the provisions hereof shall
terminate as follows, except as otherwise agreed.
(a) As to any Management Shareholder, upon his death, Disability or
termination of employment.
(b) As to Article 3, upon a Change of Control of the Company. For
purposes of this paragraph (b), "Change of Control" shall mean: (a) the
consummation of a reorganization, merger or consolidation or sale or other
disposition of substantially all of the assets of the Company; or (b) the
acquisition by any Person or group (within the meaning of Section 13(d)-5 of the
Exchange Act) of Control of the Company. "Control" shall mean beneficial
ownership of: (i) more than twenty percent of the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors or managers; or (ii) a level of voting power sufficient to
give such acquiring Person the ability to: (A) materially influence, through
corporate governance or similar exercise of authority, rights of ownership or
contract rights, the management or policies of the Company; or (B) elect a
majority of the Directors of the Company.
(c) Any Shareholder who ceases to own, directly or indirectly,
beneficially or of record, any Shares shall cease to be bound by the terms of
this Agreement.
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.
[SIGNATURE PAGES]
[EXHIBIT A - ADDRESS FOR NOTICE
(NO CHANGE OTHER THAN XXXXXX AND XXXXX)]
-27-
29
D R A F T
AMERICAN ITALIAN PASTA COMPANY
By:
----------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
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:
----------------------------------
-28-
30
D R A F T
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:
--------------------------------------------
XXXXXX X. XXXX GROUP, INC.
By:
---------------------------------------------
Its:
--------------------------------------------
AMERICAN ITALIAN PASTA COMPANY
RETIREMENT SAVINGS PLAN
By: Xxxxxx X. Xxxx Trust Company, as Trustee
By:
---------------------------------------------
Its:
--------------------------------------------
XXXXXX X. XXXX CAPITAL PARTNERS, L.P.
By:
---------------------------------------------
Xxx X. Xxxxxxxxx, Managing Director
XXXXXX X. XXXX EMPLOYEE EQUITY FUND, L.P.
By:
---------------------------------------------
Xxx X. Xxxxxxxxx, Managing Director
-29-
31
D R A F T
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:
---------------------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
------------------------------------------------
Xxxxxx X. Xxxxx
------------------------------------------------
Xxxxx X. Xxxxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Trustee of the Living Trust
of Xxxxxx X. Xxxxxxxxx U/T/I Dated May 24, 1985
-30-
32
D R A F T
XXXXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXXX X. XXXXXXX, XX. UNDER THE MISSOURI
UNIFORM TRANSFERS TO MINORS LAW
By:
----------------------------------------
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:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX, AS CUSTODIAN FOR
XXXXXX XXXXXXX XXXXXXX UNDER THE
MISSOURI UNIFORM TRANSFERS TO MINORS LAW
By:
----------------------------------------
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:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXXX
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
-31-
33
D R A F T
XXXXX X. XXXXXXX
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXX XXXXXXXXX XXXXXXX
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXX XXXX XXXXXXX, XX.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX X. XXXXXX
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
XXXXXXX XXXXX XXXXXX
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-Fact
-------------------------------------------
Xxxxxxx X. Xxxxxxx
-32-
34
D R A F T
XXXXXXXX HOLDINGS, L.P.
By: XXXXXXXX HOLDINGS, INC.,
as General Partner
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxx, President
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx Dear
-------------------------------------------
Xxxxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx Xxxxx
-33-
35
D R A F T
JSS MANAGEMENT COMPANY LTD.
By:
-------------------------------------------
Its:
---------------------------------------
-------------------------------------------
Xxxxx X. Xxxxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx
-34-
36
D R A F T
EXHIBIT A
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
X X X X X
Xxxxxxxx Holdings, L.P.
c/o Xxxxxxx X. Xxxxxxxx
0000 X. Xxxxx Xxxx, Xxx. 0000
Ft. Xxxxxxxxxx, Xxxxxxx 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
X-0
00
X X X X X
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
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
00 Xxxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxx Dear
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxx Xxxxx
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
X-0
00
X X X X X
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
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
A-4
